Superior Court of Pierce County. Superior Court Docket No. 90-1-04252-2. Date Filed In Superior Court: June 24, 1994. Superior Court Judge Signing: Waldo Stone.
Written By: Houghton, A.c.j. Concurred IN By: Seinfeld, C.j., Armstrong, J.
HOUGHTON, J. -- Joseph R. Bishop appeals his conviction for two counts of indecent liberties on grounds that the trial court violated his constitutional right to counsel by requiring him to proceed to trial without counsel and without a valid waiver of that right. Finding that Bishop neither waived nor forfeited his right to counsel by his dilatory conduct, and that the municipal court erred in requiring him to represent himself at trial without a waiver or proper warnings, we reverse and remand.
Bishop was charged with two counts of indecent liberties against C.P., the 10-year-old daughter of his half-sister. Bishop was arraigned in Tacoma Municipal Court on April 25, 1990, and trial was set for June 27, 1990. Bishop received his first Notice of Case Setting on April 25, 1990, which tentatively appointed the Department of Assigned Counsel (DAC) to represent him, subject to his eligibility. This notice states: "IT IS YOUR RESPONSIBILITY TO CONTACT THE ASSIGNED COUNSEL'S OFFICE IN PERSON IMMEDIATELY." Your failure to do so will result in that office withdrawing as your legal counsel in this matter." The notice also provides DAC's address and phone number.
Bishop informed the trial court on June 25, 1990, that he had not contacted anyone at DAC. Trial was set over until June 29, 1990. On June 29, Bishop again appeared without counsel, and the trial was set for October 4, 1990.
Bishop appeared on October 4, 1990, without counsel and requested a continuance in order to obtain counsel. When asked his reasons for the motion, Bishop said that someone at DAC told him they needed two weeks to arrange for appointed counsel. He also stated that he was unable to find an attorney because he could not take time off from work and was having personal problems.
The City responded that Bishop had been granted a continuance in June in order to contact DAC and that Bishop had not exercised due diligence in obtaining counsel. The City also stated that the 10-year-old witness was frightened, had missed a school test to be in court that day, and that she might not be available at a future date because her mother said they might have to move.
The trial court denied Bishop's motion for a continuance. The trial court acknowledged that DAC needed two weeks to process paperwork and stated, "but two weeks from the 25th of June to the 4th of October doesn't add up." The trial court also told Bishop, "[DAC is] not your mother and father. They have no responsibility to you unless you make an active contact." The trial court denied Bishop's motion for a continuance, and proceeded to trial.
The City called its only witness, C.P. Bishop called his sister, Barbara Pollock (C.P.'s mother), and his girlfriend, Sharon Cook, as a character witness. Bishop did not testify. The trial court found Bishop guilty on both counts.
Bishop appealed to the superior court. DAC appeared on behalf of Bishop, arguing that Bishop was denied his right to counsel when he was required to proceed to trial without representation and without either an express or implied waiver of that right.
The City responded that Bishop had a fair opportunity to obtain counsel of his choice, but was dilatory and failed to do so. The City argued that if Bishop could get to the courthouse, he could have walked the two blocks to DAC after being instructed several times to contact them over the course of six months. The City argued further that the Leavitt*fn1 balancing test (balancing conflict between denial of continuance and right to counsel) applied, pointing to previous continuances and inconvenience to the court and the witness as reasons for denying the continuance.
The superior court denied the appeal and stated, "I suppose I should put a label on his conduct and I will label it dilatory . . . ." The court expressed concern about the future availability of the witness and the potential for Bishop to "paralyze" the court. The court noted further that the City had taken all the necessary precautions to see that Bishop had counsel, but Bishop had not taken advantage of them, stating, "I think we are in the ball park where you lead the horse to water but you can't make him drink."
The superior court found that the municipal court denied Bishop's motion for a continuance for failure to demonstrate due diligence in obtaining counsel, and that Bishop did not waive his right to counsel. The court concluded that Bishop was dilatory in obtaining counsel, and that because of his dilatory conduct, the municipal court did not err in requiring him to ...