State Of Washington, Resp-cross App v. Thomas J. Arthur, App-cross Resp ( 2013 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, No. 68926-6-1
Respondent, DIVISION ONE
v.
UNPUBLISHED OPINION
THOMAS-JAMES DONALD ARTHUR,
Appellant. FILED: November 18, 2013
Schindler, J. — Thomas-James Donald Arthur seeks reversal of his conviction
of failure to register as a sex offender. Arthur argues the court abused its discretion by
denying his request to proceed pro se. We affirm.
FACTS
In 1991, the Snohomish County Superior Court Juvenile Division found Thomas-
James Donald Arthur guilty of rape of a child in the first degree. Arthur acknowledged
that as a convicted sex offender, he had an obligation to register his residential address
with the county sheriffs office.
On November 22, 2010, Arthur changed his registration address from homeless
to his parents' address in Mountlake Terrace. Arthur's parents, Charlotte and James
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Arthur, own a four bedroom home.1 There is a wood shed in the backyard. The shed
has no electricity, no furniture, and leaked when it rained.
On March 17, 2011, the Mountlake Terrace Police Department came to the
Mountlake Terrace home to verify that Arthur lived there. Charlotte and James told
police that Arthur no longer lived at their home and had moved in with his girlfriend
Susan Barringer.
The State charged Arthur with failure to register as a sex offender under former
RCW 9A.44.132 (2010).2 The State alleged that from March 17 to April 27, 2011,
Arthur, "having registered as residing at a fixed residence, . . . cease[d] to reside at that
residence and did knowingly fail to provide timely written notice to the county sheriff's
office."3
The court scheduled trial to begin on October 21, 2011. On October 7, the
parties agreed to continue the trial until January 13, 2012. On December 20, 2011, the
parties agreed to continue the trial date to March 16, 2012. On February 9, 2012, the
parties entered an agreed continuance of the trial date until April 20, 2012.
Arthur's trial began on April 24, 2012. The State's two witnesses, Charlotte and
James, were present and waiting to testify. James suffers from gout and was confined
to wheelchair.
The court heard several pretrial motions. Arthur agreed to waive his right to a
jury trial. The court conducted a colloquy with Arthur on the request to waive his right to
1We refer to Arthur's parents by their first names for clarity and intend no disrespect.
2The legislature amended RCW 9A.44.132{1) in 2011, adding failure to register as a sex offender
to include previous convictions for felony failure to register as a sex offender "pursuant to the laws of
another state." Laws of 2011, ch. 337, § 5.
3After the State charged Arthur, Arthur registered with the sheriffs office that he was living at
Barringer's address in Edmonds.
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a jury trial and found Arthur voluntarily, knowingly, and intelligently waived his right to a
jury trial.
The State informed the court that Arthur would stipulate that he was required to
register and to the admissibility of exhibits related to his 1991 conviction, including a
certified copy of the order on disposition. The court accepted the stipulation and
admitted the exhibits.
Arthur would not stipulate to the admissibility of the sex offender registration
forms he filled out at the Snohomish County Sheriff's Office in November 2010 and
September 2011. The court asked whether a CrR 3.5 hearing was necessary. Before
the CrR 3.5 hearing, the court ordered a brief recess to allow defense counsel to
discuss the CrR 3.5 issue with Arthur. After the recess, defense counsel informed the
court that Arthur wished to proceed pro se: "Your Honor, during the brief recess, it did
come to my attention that Mr. Arthur would like to address the Court. He indicated to
me that he actually wished to represent himself at this trial."
With the court's permission, Arthur read a brief statement. Arthur said, "My
attorney is an officer of the court. I have the highest level of respect for him. I request
the Court to allow me to set motions in my own defense at this time. That's all I have to
say." Arthur told the court that he needed a continuance so he could subpoena
additional witnesses and evidence.
THE DEFENDANT: Your Honor, I did waive off a jury trial. I
believe that will work and I have full faith in you, sir. However, there is
some discrepancies in the case that I thought would be brought up and I'm
not seeing anything in light of that right now. I don't want to waste any of
the Court's time. I'm very capable of defending myself. With respect to
[defense counsel], I just feel within me that there are things in this
courtroom right now that are not going the way that I had expected that
need to come out.
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THE COURT: You realize we're just at the very beginning stages
of the trial?
THE DEFENDANT: Yes, Your Honor, but there are at least two
more witnesses that should have been on the docket and they're not here,
and there is information that was supposed to be subpoenaed that would
be --1 got the idea when this came up about the stipulation of admissibility
of statements of the defendant. I don't see any documentation for the
Mountlake Terrace Police Department and letters and notes that I came
by, requesting them, if they had been trying to get a hold of me. That's in
my defense.
THE COURT: All right. Well, I just asked you a minute ago if
you're ready to go to trial right here right now.
THE DEFENDANT: With the exception of that answer, no,
because —
THE COURT: Well, wait. What do you mean by with the exception
of that answer?
THE DEFENDANT: Ifthose two things I just - if those two items
that I just listed were here, I would be ready to go myself to defend my
case, yes, Your Honor, but, no, I'm not, because I don't have the two
witnesses and the documentation.
THE COURT: So you're not just asking to represent yourself.
You're asking for the trial to be delayed?
THE DEFENDANT: With all due respect, yes, sir.
The court denied Arthur's request to proceed pro se as untimely.
[T]he law is that if a request is made well in advance of the trial, it should
be granted as a matter of, essentially, of routine for a defendant to
represent himself ifthe Court is, in fact, satisfied that the defendant is
appreciative of the risks and the exposure that he faces and what the
maximums are. There are rules that need to be followed and whatnot, but
we're not well in advance of the trial. We're not even shortly in advance of
the trial. We have begun the trial.
And the rule, also, is that once the trial has begun, the Court has
significant discretion as to whether or not to allow for a person to say or
assert their right to represent themselves at the time. We have started
this trial. I've already admitted three or four exhibits. . . .
The State had witnesses -- or had a witness appear yesterday
under a personal service subpoena who was ordered to come back
today ....
I was also informed yesterday that the defendant's father, who was
a witness who was under personal service subpoena, who has health
problems, was not here yesterday but would be returning today. But,
again, the man has some health issues ....
No. 68926-6-1/5
I haven't heard a word about any motion to continue until such time
as both people under subpoena actually were present in the courthouse
ready to testify .... If the defendant truly wanted to represent himself, he
should have made this motion before we had already started the trial and
before these witnesses, one of whom is particularly not easy or convenient
for him to get here, were present outside in the hallway less than 15 feet
from the courtroom door waiting to testify. The motion is denied.
[T]he record should reflect the basis for the Court's denial of the
motion for the defendant to represent himself is that this is untimely.
We're already here. We have actually started the trial. While opening
statements hadn't been made yet, the attorneys were in the process of
admitting exhibits. I had admitted several exhibits.
He has an attorney who's here and ready to represent him. Mr.
Thompson is a skilled lawyer and he is prepared to go to trial and that's
what we're going to do.
Following the CrR 3.5 hearing, the court concluded that the sex offender
registration forms Arthur filled out at the Snohomish County Sheriff's Office were
admissible.
The State called five witnesses: three detectives from the Snohomish County
Sheriffs office, Arthur's mother Charlotte, and Arthur's father James. James testified
that Arthur lived at his home during the spring of 2011. James said that Arthur would
sleep in the shed, on the couch, or in the family van. Charlotte testified that Arthur had
not lived on the property for five or six years. Charlotte said that it did not look like
anyone had been sleeping in the shed in 2011.
Arthur and his girlfriend Susan Barringer testified for the defense. Barringer
testified that when she started dating Arthur in March 2011, she picked him up at his
parents' house "[pjrobably every day, because he didn't drive." Barringer testified that
Arthur lived in the wood shed and that she saw Arthur's personal belongings inside the
shed. Arthur testified that he stayed in the wood shed in March and April of 2011.
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Arthur testified that his father agreed he could stay in the shed. Arthur also testified that
he and his father agreed not to tell his mother he was staying on the property.
The court found the defendant committed the crime of failing to register as a sex
offender. The court explicitly found Charlotte's testimony credible. The court found that
the testimony of Arthur, James, and Barringer was not credible. The court sentenced
Arthur to 90 days confinement. The court ordered the sentence could be served as
work release.
Arthur appeals.
ANALYSIS
Arthur argues that the court abused its discretion by denying his request to
represent himself.
We review the trial court's denial of a request for self representation for abuse of
discretion. State v. Madsen, 168 Wn.2d 496, 504, 229 P.3d 714 (2010). A trial court
abuses its discretion when its decision is manifestly unreasonable or is based on
untenable grounds. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
Criminal defendants have the right to self representation under the Washington
Constitution, article I, section 22 (amend. 10), and the United States Constitution,
amendments VI and XIV. Madsen, 168 Wn.2d at 503; Faretta v. California, 422 U.S.
806, 819, 95 S. Ct. 2525, 45 L Ed. 2d 562 (1975). However, the right to self
representation is not self-executing. State v. Woods, 143 Wn.2d 561, 586, 23 P.3d
1046 (2001). It is well established that a defendant's request to proceed pro se must be
unequivocal and timely. State v. DeWeese, 117Wn.2d369, 377, 816 P.2d 1 (1991).
Where a defendant's request for self representation is untimely, "the right is relinquished
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and the matter of the defendant's representation is left to the discretion of the trial
judge." DeWeese. 117 Wn.2d at 377.
The trial court's discretion to grant or deny a motion to proceed depends on when
the request is made. If the demand for self representation is made " 'well before the trial
or hearing and unaccompanied by a motion for a continuance, the right of self
representation exists as a matter of law.'" Madsen, 168Wn.2d at 5084 (quoting State
v. Barker, 75 Wn. App. 236, 241. 881 P.2d 1051 (1994)). If the request is made "'as
the trial or hearing is about to commence, or shortly before, the existence of the right
depends on the facts of the particular case with a measure of discretion reposing in the
trial court in the matter.'" Madsen, 168 Wn.2d at 508 (quoting Barker, 75 Wn. App. at
241). Finally, if the defendant makes his request" 'during the trial or hearing, the right
to proceed pro se rests largely in the informed discretion of the trial court.'" Madsen,
168 Wn.2d at 508 (quoting Barker. 75 Wn. App. at 241).
Arthur argues that because he made his request before trial, the court's
discretion was limited. The State argues that because Arthur made his request after the
trial began, the decision rested within the informed discretion of the trial court.
We need not decide whether trial had begun. Whether the motion to proceed pro
se was made immediately before trial or during trial, Arthur does not dispute that the
trial court had at least a "measure of discretion" to deny the untimely request for self
representation.
Here, trial had already been continued three times. Trial was scheduled to begin
and the State's two subpoenaed witnesses, James and Charlotte Arthur, were present
and ready to testify. James had difficulty getting to the courthouse because he had gout
4(Emphasis omitted.)
No. 68926-6-1/8
and was confined to a wheelchair with "extremely swollen" legs. Charlotte was present
at the courthouse for the second day in a row. Only after the court heard preliminary
motions, conducted a colloquy on Arthur's jury trial waiver, and admitted several
exhibits did Arthur ask to represent himself for the first time. Arthur also asked for a
continuance. Arthur's attorney was prepared to represent him. The court did not abuse
its discretion by denying Arthur's motion to proceed pro se.
Affirmed.
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WE CONCUR:
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