Appeal from Superior Court of Whatcom County. Docket No: 95-1-00259-8. Date filed: 07/11/95. Judge signing: Hon. David S. Nichols.
PER CURIAM. Kenneth Thomas contends the trial court violated the appearance of fairness doctrine by appointing standby counsel in his absence after he had validly waived his right to counsel. He also maintains the court infringed on his right to present a defense by denying his request to call counsel as a witness. We agree with each contention, but find the errors harmless given the unique circumstances of the case, during which Thomas communicated only in writing. Therefore, we affirm.
Thomas was convicted after a bench trial of four counts of custodial assault, two for throwing suspected urine on and two for spitting on Whatcom County Jail officers. Defense counsel Doug Hyldahl was initially appointed to represent Thomas, and did so for about a month, until Thomas validly waived his right to counsel. On the day of trial, the court met with Hyldahl and the prosecutor in Thomas' absence. At the meeting, the court appointed Hyldahl as standby counsel to read Thomas' written questions and comments during trial and to respond to any legal questions Thomas may have.
The court then explained its decision to Thomas. Hyldahl said he would read verbatim Thomas' written communications and would not offer any unsolicited legal advice. The court presented a written order of appointment for Thomas' review and signature. Thomas signed the order and wrote he did not wish Hyldahl's assistance. Despite Thomas' objection, the court appointed Hyldahl. At trial, Hyldahl read into the record Thomas' written communications.
Two officers testified Thomas struck them with suspected urine thrown from his jail cell. The other two victims said Thomas spat on them. Each officer testified Thomas had poor hygiene habits, such as not using the toilet in his cell. The officers said they were concerned that exposure to Thomas' bodily fluids could cause them to contract a communicable disease.
Thomas called Hyldahl to testify about his observations of Thomas' hygiene habits during his visits with Thomas at jail. The court denied the request without explanation.
The court found Thomas committed custodial assault by spilling suspected urine on and spitting on the officers, that the officers feared they would contract communicable diseases from their exposure to the fluids, and that these fears were heightened by Thomas' observed poor hygiene habits. Thomas does not assign error to the court's findings, so they are verities on appeal. *fn1 The court concluded Thomas committed assault by engaging in 1: "an intentional act which utilized unlawful force and created a reasonable apprehension of fear . . . the exposure to communicable disease or illness" and 2: "unpermitted touching of the victims."
The custodial assault statute does not define "assault;" the definition is thus derived from common law. *fn2 The common law recognized three definitions of assault: (1) attempted battery; (2) actual battery, (an unlawful touching with criminal intent); and 3) common law assault (putting the victim in apprehension of harm whether or not the defendant intends to harm). *fn3 By concluding Thomas impermissibly touched the victims, the court found Thomas guilty of assault by committing actual battery.
Thomas first argues his conviction should be reversed because the meeting held in his absence violated the appearance of fairness doctrine. That doctrine requires not only that the Judge be impartial, but also that he appear to be impartial. *fn4 The test is how the proceedings would appear to a reasonably prudent and disinterested person. *fn5
The court violated the appearance of fairness when he excluded Thomas from his meeting with the prosecutor and Hyldahl. Thomas had clearly expressed his desire to proceed pro se. By appointing standby counsel against Thomas' wishes and in his absence, the court engaged in unfair ex parte conduct.
Nevertheless, given the unique circumstances of this case, we find the court's error does not require reversal. First and foremost, Hyldahl's role was expressly limited to reading Thomas' written communications into the record and entertaining any legal questions Thomas had. Therefore, Hyldahl literally served merely as Thomas' mouthpiece, not his strategist. Second, once Thomas objected to Hyldahl's assistance, the issue became not whether the appearance of fairness doctrine had been violated, but rather whether the court could appoint Hyldahl over Thomas' objection. Thomas concedes the court's appointment was not error, and we agree. *fn6
Thomas also argues the trial court violated his Sixth Amendment right to call witnesses by denying his request to call Hyldahl. According to Thomas, Hyldahl's testimony was relevant because the court found the victims' concerns about contracting a communicable disease were exacerbated by Thomas' allegedly poor hygiene habits. We agree.
A criminal defendant has a constitutional right to present all admissible evidence in his defense. *fn7 Any testimony Hyldahl could have offered as to his personal knowledge of Thomas' hygiene in jail would have been relevant to determining whether Thomas committed common law assault, which required a finding Thomas put the victims in apprehension of bodily harm. The court erred by not permitting such testimony.
We nevertheless find the court's error to be harmless. A constitutional error is harmless where a reasonable trier of fact would reach the same result, and where the untainted evidence is so overwhelming it necessarily leads to a finding of guilt. *fn8 The untainted evidence here overwhelmingly supports the trial court's Conclusion that Thomas was guilty of the battery method ...