Appeal from SUPERIOR COURT SPOKANE COUNTY. Superior Court No: 93-1-01104-1. Date filed in Superior Court: 11/15/94. Superior Court Judge signing: ROBERT WHALEY.
Petition for Review Denied October 7, 1997,
Author: Dennis J. Sweeney. Concurring: Philip J. Thompson & Frank L. Kurtz
The opinion of the court was delivered by: Sweeney
SWEENEY, C.J.--This aggravated first degree murder case presents two primary questions. Both turn on whether the trial Judge abused his discretion. The first is whether the court erred in granting Jerome Paul Honton's motion to proceed pro se on the first day of trial, before jury selection. The second is whether the court erred in refusing to continue the trial after allowing Mr. Honton to represent himself. Mr. Honton also assigns error to the court's refusal to grant his motion for a change of Judge and his refusal to strike the aggravating factor that the victim was a witness in an "adjudicative proceeding" because the factor is unconstitutionally vague. We conclude that the trial Judge did not abuse his discretion, that the motion for change of Judge was untimely, and that the term "adjudicative proceeding" is not unconstitutionally vague. We therefore affirm Mr. Honton's conviction and sentence.
On May 1, 1993, Mr. Honton murdered Bruce Orchard. Mr. Orchard was expected to be a witness in a child custody proceeding with Mr. Orchard's ex-wife, now Mr. Honton's girlfriend.
On July 8, Mr. Honton was arraigned in Spokane County Superior Court on charges of first degree murder. The court appointed Richard Fasy to represent Mr. Honton. On August 31, the State amended the information and charged Mr. Honton with aggravated first degree murder. It alleged that Mr. Honton caused the death of a prospective witness in a child custody hearing, and that the murder was related to the exercise of the official duties to be performed by the witness in the custody proceeding. Mr. Honton waived his speedy trial rights several times. The court ordered Mr. Honton sent to Eastern State Hospital for an assessment of his competency to stand trial. A competency hearing was scheduled for September 15, 1994. The day before the hearing, Mr. Honton filed an affidavit of prejudice, pro se, against Judge Robert Whaley.
During the competency hearing, expert witnesses opined that Mr. Honton was competent to stand trial and was malingering. The trial Judge agreed and found Mr. Honton competent to stand trial. Immediately after that ruling, Mr. Honton asked for permission to discharge Mr. Fasy, proceed pro se, and to continue the trial. Court recessed for the day. His request to proceed pro se was the subject of a lengthy hearing the following day, September 16. At that hearing, Judge Whaley told Mr. Honton, among other things, that he was not inclined to continue the trial even if he did grant Mr. Honton's motion to proceed pro se. Rather, Mr. Honton was warned, "if you appear as your own lawyer you'll have to go ahead and try the case now." Mr. Honton persisted.
He told the court that his attorney was too busy to properly represent him, and that a conflict had developed over whether to call Mr. Honton's girlfriend as a witness. The court informed Mr. Honton of the risks of proceeding pro se, confirmed that Mr. Fasy was prepared to go to trial, and told Mr. Honton that he should not proceed pro se. Mr. Honton still persisted. The court then granted his motion, appointed Mr. Fasy standby counsel, and denied Mr. Honton's motion for a continuance. We denied Mr. Honton's request for discretionary review. On September 16, jury selection began. On September 20, the jury was sworn in. Opening statements began on September 21. Mr. Honton presented little defense. On September 29, the jury convicted him of aggravated first degree murder. The court sentenced him to life imprisonment without the possibility of parole. He appeals.
Right to Proceed Pro Se. Mr. Honton argues that the court abused its discretion by allowing him to proceed pro se because he was not competent to represent himself and was prejudiced by his pro se representation. His argument ignores the controlling principle of law here: "Every defendant in a criminal case has an independent constitutional right to represent himself or herself without the assistance of legal counsel." State v. Jessup, 31 Wash. App. 304, 309, 641 P.2d 1185 (1982) (quoting State v. Fritz, 21 Wash. App. 354, 358, 585 P.2d 173, 98 A.L.R. 1 (1978), review denied, 92 Wash. 2d 1002 (1979)).
Were prejudice to the defendant a consideration, few motions to proceed pro se by criminal defendants would ever be granted. The emphasis on personal autonomy which the Supreme Court places on the right to self-representation is at odds with the accused's Sixth Amendment constitutional right to representation by counsel. Faretta v. California, 422 U.S. 806, 832-35, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). As Chief Justice Warren Burger noted in his Dissent in FFaretta: "There is nothing desirable or useful in permitting every accused person, even the most uneducated and inexperienced, to insist upon conducting his own defense to criminal charges." Faretta, 422 U.S. at 836 (Burger, C.J., Dissenting).
The focus of our inquiry is then not on the prejudice to the defendant. It is rather on whether the request to proceed pro se is, first, unequivocal (a concern not at issue here) and, second, made knowingly and intelligently. Fritz, 21 Wash. App. at 359-60. Once these threshold determinations have been made, "the pro se defendant will bear the consequences of his or her own representation and cannot on appeal complain of the quality of his or her defense." Id. at 360. Because of the conflict between the Sixth Amendment right to competent counsel and the right to self-representation, "a defendant's request for self-representation can be a 'heads I win, tails you lose' proposition for a trial court." State v. DeWeese, 117 Wash. 2d 369, 377, 816 P.2d 1 (1991) (quoting People v. Sharp, 7 Cal. 3d 448, 462 n.12, 499 P.2d 489, 103 Cal. Rptr. 233 (1972)).
Mr. Honton argues that the trial Judge erred by failing to exercise discretion when he commented that he was "obligated to permit [Mr. Honton] to do this." *fn1 The court's statement, when set in the context of the whole hearing, reflects the exercise of the limited discretion available to a trial ...