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State v. Stutzke

Court of Appeals of Washington, Division 3

March 22, 2018


          PENNELL, J.

         Benjamin Stutzke was charged with voyeurism, violation of a protection order, felony stalking, and attempted residential burglary. After Mr. Stutzke vacillated between exercising his rights to appointed counsel and self-representation, the court determined Mr. Stutzke had waived the right to counsel through conduct. Mr. Stutzke then proceeded to represent himself during a bench trial. He was convicted of all charges with the exception of residential burglary. Mr. Stutzke now appeals, arguing: (1) insufficient evidence supports the voyeurism conviction, and (2) the court deprived him of the right to counsel. He also raises some technical issues with respect to his sentence. We affirm Mr. Stutzke's convictions, but remand for resentencing.


         Offense conduct

         The Stutzke and Townshend families were longtime neighbors. After Mr. Stutzke reached adulthood, he began exhibiting unwanted attention toward Ms. Townshend. Ms. Townshend eventually obtained an antiharassment protection order. The order prohibited Mr. Stutzke from making contact with Ms. Townshend or coming within 50 feet of her property.[2] The order was set to expire in 2015.

         Things between Mr. Stutzke and Ms. Townshend came to a head on August 16, 2013. Ms. Townshend awoke around 6:00 a.m. and opened her bedroom blinds and window. She then returned to bed and laid on top of the covers while naked. After briefly dozing off, Ms. Townshend awoke to see Mr. Stutzke standing at the open window, his hands resting on the window sill while he stared at her. Ms. Townshend immediately went to close the blinds but, in her haste and fear, she pulled the blinds from the wall. Ms. Townshend shouted at Mr. Stutzke to leave, but he did not. Mr. Stutzke never turned away or averted his gaze. He did not appear frightened or nervous when Ms. Townshend caught him. Mr. Stutzke remained fixated on Ms. Townshend until she retreated to an area of the room that was out of Mr. Stutzke's range of sight.

         Ms. Townshend called the police to report Mr. Stutzke's behavior. Mr. Stutzke was arrested shortly thereafter.

         Procedural background

         Initial phase of proceedings

         The State charged Mr. Stutzke with voyeurism, violation of a civil antiharassment protection order, stalking, and attempted residential burglary. Mr. Stutzke was originally released from custody pending trial. But he violated his release terms and was remanded back into custody.

         For approximately two years, Mr. Stutzke was represented by the same appointed attorney. Disposition of the case was delayed to allow for two separate competency evaluations. Mr. Stutzke was ultimately deemed competent to stand trial. During the period the case was continued for the competency evaluations, Mr. Stutzke waived his jury trial rights, but then rescinded the waiver.

         In early December 2015, Mr. Stutzke appeared in court and asked to dismiss his assigned counsel. Mr. Stutzke explained he wanted to be released from custody so he could find a job and hire a private attorney. Mr. Stutzke claimed the passage of time was a reason for his release, since he had likely already overserved any potential sentence. The court denied Mr. Stutzke's release request, explaining the passage of time was not a relevant consideration. The court informed Mr. Stutzke his choice was to either go forward with existing counsel or proceed pro se. The court then began to advise Mr. Stutzke of the dangers and disadvantages of waiving counsel, but Mr. Stutzke equivocated. He stated he wanted an attorney, just not the one currently assigned. The court ultimately ruled Mr. Stutzke's current attorney would remain on the case as there was no basis for appointing substitute counsel.

         Waiver of counsel and self-representation

         On December 15, 2015, Mr. Stutzke filed a motion to proceed pro se. The court engaged Mr. Stutzke in a full colloquy regarding the potential consequences of a conviction and the dangers and disadvantages of waiving the right to counsel. Mr. Stutzke again asked to be released so he could hire private counsel. This was denied. The court again informed Mr. Stutzke his choice was either to remain with his current counsel or proceed pro se. Mr. Stutzke opted for the latter. The court warned Mr. Stutzke that once he waived his right to counsel, his waiver could apply for the entire case, even if Mr. Stutzke grew to have second thoughts. Mr. Stutzke indicated he understood. The court then permitted Mr. Stutzke to represent himself and also appointed standby counsel.

         Mr. Stutzke's conduct as a pro se litigant was poor. At one point, he had to be brought to court in restraints after refusing to come voluntarily. He also refused to meet with the prosecutor to exchange discovery. The trial court decided to hold regular status conferences with Mr. Stutzke in order to ensure his case moved forward.

         During his pretrial status conferences, Mr. Stutzke continued to request release from custody. The court repeatedly denied Mr. Stutzke's requests, explaining Mr. Stutzke posed a risk of nonappearance and that the passage of time did not change this circumstance. In addition to repeatedly asking for release, Mr. Stutzke asked for continuances to allow for adequate preparation. The trial court worked with Mr. Stutzke regarding his trial preparation requests. Trial was set for February 29, 2016.

         Rescission of self-representation and appointment of new counsel

         On February 18, 2016, Mr. Stutzke appeared in court for a pretrial conference. He indicated he would like to have appointed counsel represent him at trial. The trial court expressed concern Mr. Stutzke was delaying the proceedings by vacillating on the issue of counsel. But the court ultimately decided to appoint counsel out of an abundance of caution. Mr. Stutzke's standby attorney was appointed as full legal counsel. Trial was then continued to May 23, 2016. Mr. Stutzke renewed his request for pretrial release based on the passage of time. Once again, that request was denied.

         Shortly after receiving appointed counsel, Mr. Stutzke began to complain about his attorney's performance. The accusations started on May 13 when Mr. Stutzke alleged his attorney smelled of alcohol. The court determined this complaint was unfounded. Three days later, Mr. Stutzke came back to court. His attorney reported Mr. Stutzke had refused an attorney-client meeting and requested the attorney's supervisor appoint new counsel. Mr. Stutzke continued to criticize his attorney's conduct and, at this point, requested self-representation. The court passed over this request and ordered Mr. Stutzke's current attorney to stay on the case. The court informed Mr. Stutzke he could not keep changing his mind regarding appointment of counsel. The court concluded the hearing after Mr. Stutzke became verbally disruptive.

         Waiver of counsel by conduct

         On May 23, 2016-the date scheduled for trial-Mr. Stutzke's attorney brought a motion requesting leave to withdraw. Counsel advised the court that Mr. Stutzke had persisted in his alcohol allegations, Spokane County Risk Management was now involved, and an investigation was imminent. Mr. Stutzke's attorney and counsel for the State both expressed concern that Mr. Stutzke's actions placed him in an adversarial position not only with his current attorney but the entire public defender's office. Mr. Stutzke's attorney ...

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