State Of Washington v. Renee Bishop-mckean ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
STATE OF WASHINGTON, No. 69525-8-1
Respondent,
v.
RENEE CHRISTINE BISHOP-MCKEAN UNPUBLISHED OPINION
Appellant. FILED: March 10,2014
Verellen, J. — Renee Bishop-McKean appeals from the judgment and sentence
entered on the jury verdict finding her guilty of attempted first degree murder. She
contends that the trial court erred by denying her motion to represent herself at trial.
But the record amply demonstrates that Bishop-McKean never made an unequivocal
request to represent herself. In an extensive colloquy with the trial court, she exf8§in6£|§;
jr- ~&VX.
that she was frustrated by delays in starting trial, but preferred to proceed with g --?,_
appointed counsel. Under these circumstances, the trial court's denial of the motion >:hp
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was a sound exercise of its discretion, and furnishes no basis for appellate relief. OtheX^
to -"-> re
issues Bishop-McKean raises are without merit. We affirm. ^
FACTS
Bishop-McKean was charged with one count of attempted first degree murder
and one count of first degree assault.
The court granted Bishop-McKean's motion for a stay in the proceedings to allow
an evaluation of her competency. After a 15-day evaluation period at a state psychiatric
No. 69525-8-1/2
hospital, the court concluded Bishop-McKean was not competent to stand trial. It entered
an order to commit her for 90 days to restore her competency. On February 28, 2012,
the court found Bishop-McKean competent to stand trial and set a trial date of April 6.
On March 30, Bishop-McKean requested substitute counsel. She explained, in
response to questioning by the court, that she was asking for a new attorney, not asking
to represent herself. Gurjit Pandher was appointed to represent her.
At trial call on Friday, April 6, Pandher told the court that he needed a
continuance to effectively represent Bishop-McKean. He also told the court that Bishop-
McKean wanted to represent herself, and that she believed that she would be ready for
trial the following Monday, April 9.
Snohomish County Superior Court Judge Michael Downes conducted a limited
colloquy, inquiring as to Bishop-McKean's age, education, courtroom experience,
experience with the rules of evidence and criminal procedure, and understanding of the
potential penalties applicable to the offense. Judge Downes determined that a more
thorough inquiry was required, but he was unable to perform an adequate inquiry at that
time because he was presiding over the trial call calendar. Instead, Judge Downes
assigned consideration of Bishop-McKean's motion to Judge Eric Lucas, who was
immediately available to complete the colloquy. Judge Lucas resumed the hearing that
same day.
In response to Judge Lucas's questioning, Bishop-McKean explained that she
was ready to go to trial the following Monday, but that she "would like to reserve Mr.
Pandher.. . [i]n case Iget cold feet."1 After further inquiry by Judge Lucas, Bishop-
1 Report of Proceedings (RP) (Apr. 6, 2012) at 8-9.
No. 69525-8-1/3
McKean clarified that her objective was to proceed to trial as quickly as possible, and
that she was frustrated with her counsel:
Six months I have been in jail for a crime I didn't commit with
ineffective counsel, and it has been horrible. Now the Court and
prosecution is asking me to start all over again, and I refuse to do that. I
would much rather represent myself with the outcome I perceive it to be
and what I wish to happen. I would have better luck if I do it myself rather
than someone else who doesn't care and is unavailable and ineffective.[2]
Bishop-McKean also explained that she had no dissatisfaction with her present counsel,
Pandher, except that she opposed his request for a continuance until June and she did
not want to remain in jail for that time awaiting trial.
In response to the court's questioning, Bishop-McKean then specified that she
did not want to represent herself, but only wanted her trial to be held as soon as
possible:
COURT: So is that the real problem, the June request?
DEFENDANT: Yes, sir. Your jail is just too hard. It's too difficult. People
would rather be in prison or dead than be in your jail.
COURT: Okay. So it sounds to me like that really the problem is
not that you want to be pro se and that you want a new
attorney. The problem is you just want to go to trial.
DEFENDANT: Yes.
COURT: What do you think is a more reasonable time?
DEFENDANT: Sooner. April 30 when the trial date starts. Within the
confines of my 60-day trial rights is what I'm hoping for.
COURT: Okay. So if the case was continued ... to April 27, then
under those circumstances, you would be happy with Mr.
Pandher and be ready to proceed?
2RP(Apr. 6, 2012) at 14-15.
No. 69525-8-1/4
DEFENDANT: Absolutely.
COURT: Do you think it might be helpful before you make a final
decision on going pro se to meet with [Pandher] and talk
with him about the case?
DEFENDANT: That would be a pretty good idea, absolutely.[3]
Based on this colloquy, the court denied Bishop-McKean's motion to represent
herself, without prejudice to renew. The court continued the trial for two weeks to allow
Bishop-McKean to confer with her counsel and to decide whether she wanted to
represent herself. She did not thereafter renew her request to represent herself.
Following trial, Bishop-McKean was found guilty of attempted first degree murder
and first degree assault with a deadly weapon. Bishop-McKean appeals.
ANALYSIS
Bishop-McKean contends that the trial court violated her constitutional right to
represent herself. We disagree.
The federal and state constitutions guarantee a defendant the right to self-
representation 4 To exercise the right, the defendant must make an unequivocal,
knowing, intelligent, and timely request.5 A cursory or routine inquiry is insufficient:
"[A] judge must investigate as long and as thoroughly as the
circumstances . . . demand. The fact that an accused may tell him that he
3RP (Apr. 6, 2012) at 15-17 (emphasis added).
4 U.S. Const, amends. VI, XIV; Wash. Const., art. I, § 22; see also Faretta v.
California. 422 U.S. 806, 828-19, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
5State v. DeWeese. 117 Wn.2d 369, 377, 816 P.2d 1 (1991).
No. 69525-8-1/5
is informed of his right to counsel and desires to waive this right does not
automatically end the judge's responsibility."161
A trial court's denial of a request for self-representation is reviewed for abuse of
discretion.7 Discretion is abused when the decision is "manifestly unreasonable or
'rests on facts unsupported in the record or was reached by applying the wrong legal
standard.'"8
Bishop-McKean contends that she "made a pretrial unequivocal request to
represent herself that was not coupled with a request for a continuance of the trial."9 She
contends that the "trial court delayed ruling on her unequivocal request," and transferred
it "to another judge, who in turn denied it."10 These contentions are not accurate.
Despite the fact that Bishop-McKean's motion was raised without advance notice
on the eve of trial, the judge presiding over the trial call calendar sought to ascertain
whether her request was an informed and unequivocal waiver of her right to be
represented by counsel. The colloquy Judge Downes conducted included questions
similar to those outlined by the court in its sample colloquy in State v. Christensen and
approved in subsequent cases.11 Given the time constraints of the trial call calendar,
Judge Downes was unable to determine whether Bishop-McKean's request was an
6Bellevue v. Acrev. 103 Wn.2d 203, 210, 691 P.2d 957 (1984) (alteration in
original) (quoting Von Moltke v. Gillies. 332 U.S. 708, 723-24, 68 S. Ct. 316, 92 L. Ed.
2d 309 (1948)).
7State v. Breedlove. 79 Wn. App. 101, 106, 900 P.2d 586 (1995).
8State v. Madsen. 168 Wn.2d 496, 504, 229 P.3d 714 (2010) (quoting State v.
Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).
9Appellant's Br. at 1.
10 Appellant's Br. at 1.
11 40 Wn. App. 290, 295 n.2, 698 P.2d 1069 (1985): see also State v. Vermillion.
112 Wn. App. 844, 858 n.3, 51 P.3d 188 (2002).
No. 69525-8-1/6
intelligent and unequivocal waiver. It was entirely appropriate, in these circumstances,
for Judge Downes to decide that further questioning was appropriate and to ensure that
Bishop-McKean's motion was promptly heard by Judge Lucas that same day.
Bishop-McKean's remarks to Judge Lucas demonstrate that, in fact, she did not
seek to represent herself. Bishop-McKean clearly explained that she would prefer to
receive the assistance of her attorney, provided that she obtain a prompt trial date.
Significantly, Bishop-McKean agreed that she wanted to confer with her counsel,
and Judge Lucas denied her motion without prejudice to renew, so that she could, in
fact, confer with her attorney. Under these circumstances, Judge Lucas had a tenable
reason to deny the motion. The fact that Bishop-McKean never raised the issue again
and proceeded through trial represented by counsel strongly supports the inference that
she never intelligently and unequivocally asserted her right to self-representation at that
time, or afterward.
Bishop-McKean subsequently filed a bar grievance against Pandher, causing him
to withdraw from representation. Kenneth Lee was then appointed by the court to
represent her. She did not object to the appointment of Lee, and agreed to a
continuance to allow him to prepare for trial. These circumstances, likewise, do not
support Bishop-McKean's argument that she unequivocally asserted the right to self-
representation.
Bishop-McKean argues that she was entitled to represent herself as a matter of
law, citing State v. Barker12 and State v. Vermillion.13 But the facts in Barker and
12 75 Wn. App. 236, 881 P.2d 1051 (1994).
13 112 Wn. App. 844, 51 P.3d 188 (2002).
No. 69525-8-1/7
Vermillion are distinguishable from the circumstances here.
In Barker, the defendant requested to represent himself on the eve of trial after
unsuccessfully seeking appointment of new counsel.14 Unlike the circumstances here,
however, the judge engaged in no colloquy with Barker and merely informed Barker that
his request was not timely.15 In Barker, unlike here, the trial court did not analyze the
facts and circumstances ofthe case and failed to exercise any discretion whatsoever.16
In Vermillion, the defendant made five requests to represent himself, expressed
no hesitation, and understood the consequences of self-representation, having
previously represented himself in another case.17 The trial court denied the requests
after concluding that self-representation was not in the defendant's best interest.18 This
court found such action to be an abuse of discretion, stating that the purpose of the
colloquy is to determine if the defendant understands the risks involved in self-
representation, not whether he has the technical skill to represent himself.19
Here, by contrast, two judges conducted an extensive colloquy, revealing that
Bishop-McKean's request was equivocal, at best. Judge Lucas in particular analyzed
Bishop-McKean's request based on a consideration of all of the circumstances and on
her responses during the colloquy. Bishop-McKean ultimately decided to proceed to
trial with the assistance of counsel and never again asserted the desire to represent
14 Barker, 75 Wn. App . at 238.
15 id at 239-40.
16 jd
17 Vermillion. 112Wn. App. at 852-57.
18 ]d at 857.
19 Id.No. 69525-8-1/8
herself. Her earlier request for self-representation was equivocal. There was no abuse
of discretion.
Bishop-McKean raises numerous issues in her statement of additional grounds
for review. None have merit. She identifies alleged discrepancies or falsehoods in
witness trial testimony, makes conclusory arguments that remarks by witnesses and
attorneys at trial were prejudicial to her, and claims ineffective assistance of counsel
based on matters outside the record on appeal. Her contentions that much of the
evidence at trial was inadmissible are based on inapplicable legal standards, minimal
analysis, and conclusory statements about the historical facts of the case that are not
supported by the record.20 Some ofthe arguments made are incomprehensible. Her
complaints about jail conditions also involve matters outside the record on appeal.21
Affirmed.
WE CONCUR:
20 State v. Bugai, 30 Wn. App. 156, 158, 632 P.2d 917 (1981); State v. King, 24
Wn. App. 495, 505, 601 P.2d 982 (1979).
21 See Bugai, 30 Wn. App. at 156; King, 24 Wn. App. at 505.
8