Record and brief — Hoff v. Washington

82-836 = [Ma Fem oats

NOV 19 1982

ALEXANDER U. STEVAS,

CUERK

IN THE

UNITED STATES SUPREME COURT

OCTOBER TERM, 1982

STATE OF WASHINGTON,

Plaintiff-Appellees,

Ve

ANGEL HOFF,

De fendant-Appellant.

Petition for Writ of Certiorari From

The Washington State Court of Appeals,

Division II

PETITION FOR WRIT OF CERTIORARI

JEROME L. BUZZARD

2424 Evergreen Park Drive, S.W.

Olympia, Washington 98502

1-206-943-7700

QUESTIONS PRESENTED

1. Where Defendant elects to represent

himself at trial, but no record is made of his

knowing and intelligent waiver to counsel, is

Defendant deprived of his Sixth Amendment

right to counsel for trial?

2. Where Defendant represents himself at

trial, is he precluded on appeal from object-

ing to violations of his Sixth Amendment right

to confront witnesses and his Fourteenth Amend-

ment right to a fair trial?

PARTIES

APPELLANT-DEFENDANT

Angel Hoff

APPELLEE-PLAINTIFF

State of Washington

TABLE OF CONTENTS

Questions PRESENTERS. ccoccccccocececcccceos

eiiies 66 coe sod ee ede ee eee eee eee eee eee

Table of Contents „ „ 6 e 6 6 6 „ 6 6 „„ „ „

1

2

3

Table of Authorities ẽ 4

Lower Court Opinions. 7

Grounds for qurisdictioun 8

Constitutional Pro is ions 9

Statement Of Cage. ũçß¾‚ 10

Argument for Allowance of Mri t.. 21

Append ieee ⁊ĩ4⁊æn441

A. Thurston County Superior

Court Oral Opinion. 41

B. Washington State Court

of Appeals, Division II,

Soiree eee eee eee ee eee ee eee

TABLE OF AUTHORITIES

Page

Adams v. United States

ex. rel., Mccann., 317

* — . 236, (1938). d 222

Berger v. United States,

* . * *

1933). e 66% %%% 0 %% % h œ eee eee 36. 37

aS v. Maryland, 373 US

* . * * (196333 36

S v. Cochran, 369 US

* 0 . t. (1962. 26. 27

Davis vs. Alaska, 415 US 308,

94 S.Ct. 1105, 1197600. . „ „63

Faretta v. California, 422

US 806, 95 S.Ct. 2525, (1975). 21, 22, 23,

26, 27, 29,

34, 35, 38

Johnson v. Zerbst, 304 US

460, 58 S.Ct. 1019, (1933) 22, 26

58845 v. United States, 174

U * 142 574, ( 5. 0000030

Lisenba v. California, 314 Us

215, 62 S.Ct. 280, TEOELPoceseccece dS

Miranda v. Arizona, 384 US

436, 86 S.Ct. 1602, (1966) 23

Page

Mixon v. United States, 608

F.2d 588 (5th Cir. reer 26

Pointer v. Texas, 380 US

450, 85 S.Ct. 1065, CRESOPoesecseccocvese

Snider v. Massachusettes, 291

US 97, 54 S.Ct. 330, | EE

United States v. Bird, 621

F. 2d 585 (Sth Cir. Piet eectesn ace cso

United States v. McCaskill, 585

F.2d 189, (6th Cir. eee eee ee eee

United States v. McFadden, 630

F.2a 563 (3rd Cir. Ee

United States ex. rel.,

11 T2 8 V. Vincent, 526 F.2d

n re Nee eee ee eee ee eee

United States ex. rel.,

Maldonado v. Deno, 348 F.2d

12 (CA2d Irre

United States ex. rel.,

Martinez v. Thomas, 526 F.2d

750 (2nd Cir. Dennie

United States ex. rel.,

Smith V. Pavich, 568 F. 2d

33 (6th Cir. PED on 660-046 6becboccowel

Page

VonMoltke v. Gilles, 332 US 708,

* * 66 0000000000000 0022

Williams v. Florida, 399 US

78, 50 S.Ct. 853, 11969 36

LOWER COURT OPINIONS

In an oral opinion on the 24th day of March,

1980, the Honorable Carol A. Fuller, Judge of

the Superior Court in Thurston County, State

of Washington, granted Defendants Motion for

anew trial. No. 79-1-200-7.

In a published opinion dated and filed the

6th day of May, 1982, the Washington State

Court of Appeals, Division II, reversed the

trial courts decision ganting Defendant a new

trial. No. 4899-0-II. 31 Wn. App. 809, (1982).

On the i3th of September, 1982, the Wash-

ington State Supreme Court denied Defendant's

Petition for Review of the Court of Appeals

GROUNDS FOR JURISDICTION

Defendant seeks review of the Judgment

decided and entered on the 6th day of May,

1982, by the Washington State Court of Appeals,

Division II, in Cause Number 4899-0-II. 31 Wn.

28 U.S.C. 1257 (3) provides that final

judgments rendered by the highest court of a

state in which a decision could be had, may be

reviewed by the Supreme Court where any title,

right, privilege or ammunity is specially set

up or claimed under the Constitution of the

United States.

CONSTITUTIONAL PROVISIONS

UNITED STATES CONSTITUTION,

AMENDMENT SIX

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the state and

district wherein the crime shall have been

committed, which district shall have been

previously ascertained by law, and to be in-

formed of the nature and cause of the accusa-

tion; to be confronted with witnesses against

him; to have compulsory process for obtaining

witnesses in his favor, and to have the assis-

tance of counsel for his defense.

UNITED STATES CONSTITUTION,

AMENDMENT FOURTEEN

All persons born or naturalized in the

United States and subject to the jurisdiction

thereof, are citizens of the United States and

of the state wherein they reside. No state

shall make or enforce any law which shall

abridge the privileges or ammnities of citi-

zens of the United States; nor shall any state

deprive any person of life, liberty or property,

without due process of law; nor deny to any

person within its jurisdiction the equal pro-

tection of the laws.

STATEMENT OF THE CASE

On the evening of July 26, 1979, Defen-

dant HOFF pushed a fully clothed Craig Phelps

into the swimming pool at the Aquarian Apart-

ments in Tumwater, Washington. The next

evening, Phelps, accompanied by Willie Durden,

(both juveniles), returned to Defendants

apartment to secure an apology. Defendant

was not of a mind to apologize and an alterca-

tion ensued. Phelps hit Defendant on the

head with a beer mug. Phelps and Durden then

fled in their car, with Defendant in hot

pursuit. The car chase eventually wound

around to the Thurston County Jail, where

Phelps and Durden complained to Police that

Defendant had allegedly fired several shots

at their car. Being an epeleptic and con-

cerned about his head injury, Defendant pro-

ceeded to the local hospital for treatment.

Defendant was arrested later that evening on

charges of assault. No weapon was ever

» 16 @

nae ree

found.

Represented by an attorney, JEROME L.

BUZZARD, the Defendant was arraigned and

entered a plea of not guilty on August 14,

1979. Trial was set for the week of October

8th, 1979.

On the 27th day of September, 1979, Mr.

Buzzard withdrew as attorney for Defendant.

There was a hearing in this regard, Defendant

was present, and a record was made. After

some discussion concerning Mr. Buzzard's

Motion to Withdraw as counsel for Defendant,

the following colloquy took place:

THE COURT: I now have to inquire as to

Mr. Hoff's ability to retain counsel. I

take it you were retained?

MR BUZZARD: Yes.

THE COURT: Are you in a position to

hire an attorney?

MR HOFF: I am going to represent myself,

Your Honor.

THE COURT: You understand, Mr. Hoff,

that you have an absolute right to an

attorney. If you do not have funds with

which to employ an attorney, an attorney

may be employed to represent you and at

no expense to yourself. Is that clear?

o St «

MR. HOFF: I have funds. That is no

problem.

THE COURT: You have the right to represent

yourself. You understand the matter is

now set for trial the week of October 8?

MR. HOFF: Yes, I hope it will be sooner.

THE COURT: The Court wants to make it

clear you understand you have an absolute

right to an attorney to represent you in

this matter.

MR. HOFF: Sure.

THE COURT: At the present time, since

Mr. Buzzard's withdrawal, you are gcing

to represent yourself in this matter?

MR. HOFF: Yes, sir.

THE COURT: Very well, I will allow you

to withdraw as attorney, Mr. Buzzard.

MR BUZZAD: I have an order in that

regard, Your Honor, which indicates I

may withdraw effective immediately. I

put in that the trial should be held on

the blank day of blank. I did not know

whether my client could want a continuance.

I will give a copy of the order to my

client. I think he understands it is

still set for the 8th.

THE COURT: Very well. (signs)

MR. BUZZARD: I am handing my client a

copy of the order which indicates the

trial is set for October 8.

THE COURT: You understand, Mr. Hoff, if

you have any good reason for continuance

or something, it will have to be made

within a certain period of time. If you

do desire to hire another counsel, you

J 19 «

should do so immediately and notify the

Prosecutor's office or have your attorney

notify them of his representation of

you. Is that clear?

MR. HOFF: Yes, sir. (Thereupon the

Court recessed)

The above represents the complete

Pre-Trial record and exchange between the

Court and Defendant concerning his self-

representation.

On October 8th, 1979, the Prosecutor

filed a First Amended Information which, al-

leged that Defendant was armed with a deadly

weapon in committing the Second Degree Assault.

The Amended Information enhanced the penalty

now facing Defendant, by requiring a mandatory

five-year sentence in the event of a finding

of guilt. 3

The Defendant was arraigned on the First

Amended Information on the 10th day of October,

1979. Representing himself, Defendant was

handed a certified copy of the Information,

waived formal reading of it, and entered a

plea of not guilty. There was no exchange

+ 19%

between the Court and the Defendant concerning

his right or ability to represent himself,

nor was there any discussion concerning the

nature and possible consequences of the

Amended Information. The trial began shortly

after defendant was arraigned and lasted

approximately three and one-half days.

The State's first witness was a Police

Officer Ford. On redirect of Officer Ford,

the Prosecutor introduced into evidence a

statement supposedly given by Willie Durden

to the Police on the evening of the incident.

The statement was not signed or verified by

Mr. Durden and Mr. Durden was not called as a

witness at trial. After the Prosecutor read

parts of the statement to Officer Ford, the

record reflects the following:

PROSECUTOR: Do you recall Mr. Durden

giving you that statement?

OFFICER FORD: Okay, I was not in the

back room with Officer Davis for the

full statement of William Durden at

that time. I may have stepped out for

9 I don't recall that portion

0 t.

= 16.0

PROSECUTOR: You do not recall hearing

that before then?

OFFICER FORD: No, I don't.

PROSECUTOR: You want me to put Willie's

statement in evidence? Do you have any

objections?

DEFENDANT: No, fine.

On the Prosecutor's Motion, the Court

admitted the Durden statement into evidence.

The State's seventh witness was Police Officer

Davis and through him the Prosecutor ellicited

testimony concerning the efforts that had

been made by the Police and Prosecutor to

subpeona Willie Durden for trial. These

efforts proved unsuccessful. on the fourth

day of trial and before closing arguments,

the Court met with Defendant and Prosecutor

in chambers. Apparently, there was some

concern about having admitted Durden's statement

into evidence. Discussion in chambers was

not made of record, but the Court subsequently

took the bench and as a matter of record

stated:

"For the record, the Court would like

to state that specifically Mr. Hoff has

requested that the statements of both

William Durden and Craig Phelps be

retained as exhibits.

At the close of the first day of trial,

the Court asked Defendant if he still insisted

on representing himself. Defendant responded

affirmatively. The Court then asked the

Prosecutor to inform Defendant of the maximum

possible penalty for the offense charged.

After the Prosecutor did this, the Court then

makes it a matter of record that an out-of-

state attorney, on behalf of Defendant, had

been present in the Courtroom during the

first day of trial.

The out-of-state corporate attorney was

a friend of Defendant's family. He merely

sat in the courtroom and observed the proceedings.

He did not sit at counsel's table. He was

not there at Defendant's request, nor did he

advise Defendant at any time during the

proceedings. He was not present any time

after the first day of trial.

4 36 &

In its entirity, the Trial Court record

is replete with instances of the following:

the Prosecutor asking questions calling for

opinions from lay witnesses (i.e. opinion as

to emotional state of the alleged victims;

opinion as to what Defendant was thinking;

opinion concerning Defendants reputation as a

violent and dangerous person; and opinion as

to the credibility of witnesses); using

significant hearsay and irrelevant testimony,

the Prosecutor paints the Defendant as being

a racist and gun toting maniac; the Prosecutor

asking leading and hypothetical questions

with no factual foundation. In addition, the

Prosecutor introduced into evidence statements

given by Defendant on arrest. These state-

ments were admitted without a pre-trial

3 hearing to determine their voluntariness, as

required by Washington State Criminal Rule

3.5.

In contrast, the record gleams with

a $9 «

Defendant's ineptitude and inability in

representing himself. His questions to

witnesses are rambling and usually incoherent.

Many of the witnesses state they do not

understand what it is he is asking. He is

constantly admonished by the Court for testi-

fying instead of asking questions. The

Prosecutors objections preclude him from

using the same type and line of questioning

the Prosecutor used in examining the witnesses.

Besides the Durden statement, Craig Phelps

was the only witness giving testimony that

Defendant fired shots at the alleged victims.

On the Prosecutor's objection, the Court

prevented Defendant from impeaching the

credibility of Craig Phelp's with a Juvenile

record. In short, Defendant's confusion and

frustration is patently obvious from the

record.

On October 15th, 1979, the trial culmi-

nated with a jury verdict of guilty. Prior

a)

to sentencing, Defendant hired his original

attorney and a Motion for Arrest of Judgment

or In the Alternative for a New Trial was

filed. On March 24th, 1980, the Trial Court,

after hearing arguments of counsel and considering

Brief's and Affidavits on file, granted the

Defendant's Motion for a New Trial. The

Trial Court granted such Motion on the following

reasons:

A. Defendant proved particularly inept

in his representation of himself. The

Court stated that Mr. Hoff “was peculiarly

unable to represent himself and that be-

came more apparent as the trial went

on“.

B. The Court vas concerned about

the appearance of judicial fairness.

This was a result of Defendant filing an

affidavit stating the Trial Judge had

represented Defendant's wife in their

very unpleasant, contested dissolution

of marriage.

C. The fact that a jurors affidavit was

filed with the Court stating that the

juror was physically ill and mentally

coerced into voting for Defendant's

conviction.

D. That the Court was sobered“ by the

seriousness of the charge and the manda-

tory five-year sentence.

210

E. That as a result of all the above,

“substantial justice” had not been

served and Defendant was entitled to a

new trial.

On the 6th of May, 1982, the Washington

State Court of Appeals reversed the trial courts

decision granting a new trial. The Court of

Appeals stated Defendant knowingly and intel-

ligently waived his right to counsel and since

"Defendant has the personal right to be a fool",

he must bear the consequences of his own represen-

tation and cannot on appeal complain of the

quality of the defense. The Court of Appeals

failed te accept Defendant's argument that

violation of Defendant's Sixth Amendment

Right to confront witnesses and the totality

of the circumstances deprived him of his

Fourteenth Amendment right to a fair trial.

= 20 «

ARGUMENT FOR ALLOWANCE OF WRIT

I. THERE IS LACK OF DIRECTION AS TO WHAT

FACTORS, CONDITIONS AND STANDARDS A TRIAL COURT

MUST UTILIZE AND CONSIDER IN FINDING A VALID

WAIVER OF THE SIXTH AMENDMENT TO COUNSEL. THE

SUPREME COURT'S FAILURE TO PROVIDE CLEAR

GUIDELINES HAS RESULTED IN CONFLICTING DECI-

SIONS IN BOTH STATE AND FEDERAL COURTS.

The Sixth Amendment guarantees to an

accussed person the right “to have the assis-

tance of counsel for his defense." U.S.

Const. Amend. VI. The Supreme Court held for

the first time in Faretta v. California, 422

US 806, 95 8. Ct. 2525, 45 L.Ed2 562 (1975)

that the Sixth Amendment, applicable to the

States via the Fourteenth Amendment, grants

Defendant a constitutional right to waive his

right to assistance of counsel and to repre-

sent himself at trial.

Citing a composit of pre-Faretta cases,

the Court briefly discussed the requirements

« 2 «

for an effective waiver of counsel, in stating:

in order to represent himself, the

accused must “knowingly and intelligently"

forgo those relingutehed benefits.

Johnson v. Zerbst, 304 US, at 464-465 82

L Ed 1461, 58 S Ct 1019, Cf. Von Moltke

v. Gillies, 332 US 708, 723-724, 92 L Ed

309, 68 S Ct 316 (plurality opinion of

Black, J.). Although a defendant need

not himself have the skill and experience

of a lawyer in order to comprently

and 8501 82 284 choose self-representation,

he shou e aware of the dangers

ont ai seevente es of selt-re

record w esta

The Knows what he is doi and 575 choice

is made with eyes open”. Adams v.

United States ex rel. McCann, 317 US, at

279, 87 L Ed 268, 63 S Ct 236.

Rt

Faretta, supra, 422 U.S. 806, at 835 (emphasis

addedy

The Faretta Court found that the Trial

Court record reflected (1) a clear and unequivocal

request by Faretta to represent himself; (2)

that Faretta was literate, competent and

understanding; (3) that the trial judge

warned Faretta it was a mistake not to accept

assistance of counsel; and (4) and that

Paretta was warned he would be required to

follow all the “ground rules“ of trial proce-

Without offering any guidance as to how

a trial judge is to determine such matters in

future cases, the Court then held that Faretta

had validly waived his Sixth Amendment right

to counsel and the trial court committed

reversible error in precluding Faretta from

representing himself.

In Miranda v. Arizona, 384 US 436, 86 8.

Ct. 1602, 16 L E2 694 (1966) the Supreme

Court forcefully declared a procedural frame-

work in determining validity of waiver in the

Fifth Amendment right against self incrimina-

tion. Waiver is impossible unless the suspect

is given his Miranda rights. The Miranda

rights, their operation and waiver thereof,

are clear, coherent and definitive. Miranda's

detailed guidance for police officers and

trial courts is indeed, one of its major

virtues. By contrast, the Faretta Courts

failure to properly develop waiver requirements

for the Sixth Amendment right to counsel, has

«o 23 «

forced State and Federal Courts to grapple

repeatedly with the issue of what constitutes

an effective waiver.

The Federal Courts alone have offered

numerous factors the trial court must consider

and numerous rights the defendant must be

informed of, before “knowingly intelligent"

waiver can be found. Among these are (1) the

understanding of the Defendant that he has a

choice of either proceeding pro se or being

represented by counsel; (2) defendant must be

warned against proceeding pro se and be made

aware of advantages of being represented by

counsel; (3) defendant must be warned of the

charges against him and the sentence he is

facing; (4) defendant must be informed that

he will be held to the same procedures and

rules of evidence as an attorney would be;

(5) the defendant must be informed that he

is entitled to a continuance, if needed, and

timely made; (6) the Court should inquire

into defendant's educational background; (7)

the Court should determine whether or not

defendant has previous court experience; and

(8) the Court should determine whether or not

defendant is physically capable of conducting

his own defense. United States ex. rel.

Martinez v. Thomas, 526 F.2d 750 (2d Cir.

1975), United States ex. rel. Konigsberg v.

Vincent, 526 F.2d 131 (2d Cir. 1975), Mixon

v. United States, 608 F.2d, 588 (5th Cir.

1979), United States v. Mc Caskill, 585 F.2d

189 (6th Cir. 1978), United States ex. rel.

Smith v. Pavich, 568 F. 2d 33 (Sth Cir. 1978).

The United States Courts of Appeals are

in disagreement as to what the result should

be when the trial court fails to inform

defendant of the perils involved with self-

representation (just one of the above-mentioned

factors). In United States v. Bird, 621 F.2d

989 (9th Cir. 1980), the Court held that it

would be reversable error for the trial court

to fail to address warnings against self-

o 26 6

representation directly to Defendant.

United States v. McFadden, 630 F.2d 963 (3rd

Cir. 1980) and Mixon v. United States, supra,

have held that failure to give such warnings,

alone, is not cause for reversal.

Pre-Faretta Courts have uniformily

required that the record, by reason of judicial

inguiry or otherwise, contain evidence of a

defendant's knowing and informed waiver. In

Johnson v. Zerbst, supra, the Court held that

the effectiveness of waiver “should be clearly

determined by the trial court, and it would

be fitting and appropriate for that determina-

to appear upon the record". 304 US at 465,

58 S. Ct. at 1023 (emphasis added). In

Carnley v. Cochran, 39 U.S. 506, 82 S. Ct.

884, 8 LE.2d 70 (1962), the Court converted

the Johnson Courts' suggestion into a requirement

that evidence of the defendant “knowing and

intelligent” waiver be visible on the record:

Presuming waiver from a silent record

is impermissible. The record must show

i

or there must be an allegation and

evidence which shows, that an accused

was offered counsel but intelligently

and understandably rejected the offer.

Anything less is not waiver.

Carnley v. Cochran, 369 U.S. at 516, 82

S. Ct. at °

Faretta and its progeny emphasis the

fact that of central concern to the Supreme

Court is awareness by the Defendant of “the

dangers and disadvantages” attendant upon

the course of self-representation. The only

certain assurance of that awareness, is by a

col loquy on the record between judge and

defendant. An inquiry should be addressed,

and normally confined, to that subject.

Faretta cannot, and does not, contemplate

the the propriety of granting a defendant's

right to represent himself to be judged by

what happened in the subsequent course of

that representation. It is the record made

in recognizing that right that is determina-

tive.

In this case, one can only be schocked

= 27 «

at the dearth of a record concerning Defendant's

"knowing and intelligent" waiver of his Sixth

Amendment right to counsel. There is nothing

of record that would indicate (1) that defendant

was strongly advised against self-representation;

(2) that defendant was told of the advantages

of being represented by counsel; (3) that he

would be given no special consideration

regarding trial rules and procedures; (4)

inquiry was not made into Defendant's ability

to represent himself, i.e. educational back-

ground and/or past experience with the legal

system; (5) defendnt was not informed of the

penalty confronting him in the event of

conviction until after the first day of

trial; (6) inquiry was not made concerning

defendant's physical ability to conduc’ his

defense; and (7) defendant was not properly

informed of his right to a continuance to

prepare for trial, especially after he had

been arraigned on the Amended Information on

a *

ri

Ls

the day of trial.

In short, the record is void of any

indication that defendant validly waived his

Sixth Amendment right to counsel. Even using

the Faretta's bare-bones standards, the

record cannot support a finding of waiver.

Not only is there nothing to indicate that

defendant was “literate, competent and under-

standing", the record supports a finding to

the converse of this. In fact, that conclusion

was painfully obvious to the trial judge when

she stated defendant “was peculiarly unable

to represent himself and that became more

apparent as the trial went on". Unfortunately,

the trial judge made that determination

during and after trial, instead of before

trial, as Faretta demands.

The Supreme Court should develope waiver

requirements for the Sixth Amendment right

to counsel analogous to those for the Fifth

Amendment. The trial courts, which serve as

the initial guardian for the rights of the

accused, are not informed of situations in

which waiver should be presumed valid, and

thus must resort to a complicated and time-

consuming analysis of conflicting requirements.

The advantage of a unified system of waiver

requirements are obvious. The trial courts

will be given a standard consistently applicable

to all situations involving Sixth Amend-

ment waiver to counsel at trial. If those

standards are met, a case-by-case analysis,

resulting in inconsistent and conflicting

decisions on appeals, would be eliminated.

II A DEFENDANT'S ELECTION TO REPRESENT HIMSELF

AT TRIAL, DOES NOT DEPRIVE HIM OF HIS FIFTH

AMENDMENT RIGHT TO CONFRONT WITNESSES AGAINST

HIM, OR HIS FOURTEENTH AMENDMENT RIGHT TO DUE

PROCESS AND A FATR TRIAL.

The Sixth Amendment to the U.S. Constitu-

tion provides in part:

In all criminal prosecutions, the

accused shall enjoy the right...to be

- 30 -

confronted with the witnesses against

h imm

In Pointer v. Texas, 380 US 400 13 L.Ed

24 923, 85 S.Ct. 1065 (1965), the Court

stated:

There are few subjects, perhaps, upon

which this Court and other Courts have

been more nearly unanimous than in their

expressions of belief that the right of

confrontation and cross-examination is

an essential and fundamental right for

the kind of fair trial which is this

countries constitutional goals. Indeed,

we have expressly declared that to

deprive an accused of the right to

cross-examine the witnesses against him,

it is a denial of the Fourteenth Amend-

ments gaurantee of due process of law.

Pointer v. Texas, 380 U.S. at 405.

The Supreme Court of the United States

has spoken loudly and clearly on the right of

a defendant to confront and cross-examine

witnesses against him, a right which was

denied defendant Hoff through the introduction

of Willie Durden's unsigned, unwitnessed and

improperly identified out-of-court statement.

By introducing the Durden statement, the

Prosecutor, an officer of the court, demon-

„ She

Strated his disregard and contempt for such a

fundamental right. The Prosecutor should

not have even considered using the statement.

His efforts to later justify it with testimony

concerning the attempts to subpeona Willie

Durden for trial, only demonstrates his

concern for what the record will reveal in

the event of review. That the Court was also

concerned about the statement is evident by

the in-chambers conference held between

Defendant, Prosecutor and the trial judge.

After the conference, the trial judge came

back on the bench and stated for the record

that Defendant wanted the Durden's statement

to remain of record. There is nothing of

record that would indicate a knowing and in-

telligent waiver by Defendant of his constitu-

tional right to confront the witnesses against

him.

During trial, Craig Phelps was the only

witness that testified that defendant fired

2 32 «

shots on the evening of the incident. When

defendant attempted to impeach him by inquiring

into Phelps juvenile record, the Court, on

the Prosecutor's objection, precluded defendant

from doing so because Phelps was a juvenile.

Confronted with this issue, the Supreme

Court in Davis vs. Alaska, 415 U.S. 308, 39

L. Ed 2d 347, 94 S. Ct. 1105 (1974) stated:

The state's policy interest in protecting

the confidentiality of a juvenile of-

fenders record cannot require yielding

of so vital a constitutional right as

the effective cross-examination for bias

of an adverse witness. Davis v. Alaska,

415 U.S. at 320.

Willie Durden's statement and Craig

Phelp's testimony were the “crucial links" in

the states proof of defendants alleged act.

The introduction of the Durden statement and

preclusion of defendant from effectively

cross-examining Craig Phelps, deprived defendant

of “one of the fundamental gaurantees of life

and liberty,...a right long deemed so essential

for the due protection of life and liberty

that it is guarded against legislative and

- 33 -

judicial action by provisions in the constitu-

tion of the United States..." Kirby v. United

States, 174 U.S. 47, at 55, 43 L.Ed. 890,

893, 19 S. Ct. 574.

The violation of Defendant's Sixth

Amendment right to confront witnesses alone

constitutes a basis for confirming the Trial

Court's decision in granting defendant a new

trial. This, however, is only the most

egregious of many violations of defendant's

right to a fair trial.

Once defendant elects to represents

himself, some courts have held he is precluded

from raising any further questions, such as

the quality of his representation or the

failure of the Judge to intervene. Faretta,

supra, itself, gives a rather quick reply:

"Thus, whatever else may or may not be

elects to represent himself cannot

thereafter complain that the quality of

his own defense amounted to a denial of

"defective assistance of counsel."

Faretta, supra, 422 9. 8. at 835.

Paretta does not, and cannot, completely

override the socially based notion of minimal

justice contained in the due process clause.

A defendant's due process right to a fair

trial is no less important than his constitutional

right to represent himself.

The Due Process Clause of the Fourteenth

Amendment has long been recognized as assuring

"fundamental fairness" in state criminal

proceedings. See, Lisenba v. California, 314

U.S. 219, 86 L.Ed. 166, 62 S.Ct. 280 (1941).

The Supreme Court generally considers the

question of fairness on a case-by-case basis.

As the court observed in Snider v. Massachusetts,

291 U.S. 97, 78 L.Ed. 674, 54 S.Ct. 330

(1934):

due process of law requires that the

proceedings shall be fair but fairness

is a relative, not an absolute concept...What

is fair in one set of circumstances may

de an act of tyranny in others."

The Supreme Court has strongly condemned

the idea that a trial is a “sporting event"

with a “poker game" approach where gamemanship

is at a premium. Williams v. Florida, 399

U.S. 78, 82, 26 L.Ed. 24 446, 90 S.Ct. 893

(1969). The Prosecutor is not an ordinary

litigant, and the trial judge does not simply

insure that techinical rules are adhered to.

Both are charged with the duty of insuring

that justice, in the broadest sense of the

term, is achieved in every criminal trial.

Brady v.Maryland, 373 U.S. 83, 87, 10 L. Fdad

215, 83 S.Ct. 1194 (1963); Berger vs. United States,

295 U.S. 78, 88, 79 L.Ed 1314, 55 S.Ct. 629

(1935). That goal is not served, and the

integrity of the judicial system is undermined,

when an easy conviction is obtained due to

the defendants ill-advised decision to waive

counsel. The damage cannot be mitigated by

the lame exclamation that the defendant

simply availed himself of the “freedom to go

to jail under his own banner". United States,

ex rel.,v. Maldonado, vs. Deno, 348 F.2d 12,

(CA2 1965).

e % -

If the established principal is that the

interest of the state in a criminal prosecution

"is not that it shall win a case, but that

justice shall be done", Berger vs. United States,

Supra, then it cannot be argued that justice

was served where, as here, (1) defendant was

convicted in violation of his Sixth Amendment

right to confront witnesses; (2) statements

of defendant on arrest were used at trial

without a pre-trial hearing to determine

their voluntariness, as required by state law; (3)

significant, irrelevant hearsay and opinion

testimony was elicited by the Prosecutor to

portray defendant as a racist and gun-toting

maniac; (4) question of jury misconduct

exist; (5) the trial judge herself admits

there is a ligitimate issue involving the

appearance of judicial fairness; and (6) the

trial court fails to make a pre-trial determination

of whether or not defendant “knowingly and

intelligently* waived his Sixth Amendment

« 37 «

right to counsel.

The Fourteenths Amendment gaurantee of

due process and a fair trial, embodies the

policy that the state should win a conviction

because it has obtained persuasive evidence

during pre-trial investigation and not because

an uncounselled defendant makes procedural

and technical mistakes. Faretta, supra, does

not require the trial court to protect defendant

from tactical errors, however, at some point

a series of them may so diminish the liklihood

of a fair trial that the trial court has an

obligation to intervene. There must be a

balance of minimal due process with defendant's

Sixth Amendment right to represent himself.

The trial judge should be considered the

fulcrum in maintaining that balance. If, as

Faretta, supra, states, defendant should not

be entitled to any special privileges concerning

rules and procedure, should not the trial

judge supervise the trial in such a fashion

- 38 -

to insure the Prosecutor complies with the

same rules? The trial court can justify

intervention on behalf of defendant on the

due process notion that some minimal eveness

in operation of the adversary system is

necessary. If it is apparent to the trial

court that defendant is likely to try some or

all of his case in such a farcical manner

that reversal would be required, effective

steps must be taken to protect the defendant.

If it can be argued that the trial judge

has no special duty to protect Defendant from

gross violations of his constitutional rights

and accepted rules of procedure; that all rules

of procedure were technically complied with,

and; that Defendant's: failure to timely ob-

ject waives his right tor review; then praise

is sung to the form of justice and not its

substance. Inasmuch as the acninistration of

justice is the judge's ultimate responsibility,

he or she cannot be indifferent to evens

which diminish the quality of justice in the

courtroom.

Defendant submits that the circumstances

and questions present in this case are of such

constitutional significance that the Supreme

Court should grant this Petition and (1) pro-

vide uniform guidelines for state and federal

courts to utilize in determining a Defen-

dant's waiver of his Sixth Amendment right to

counsel; and (2) where Defendant represents

himself at trial, the court should clarify the

responsibilities of a trial court for insur-

ing Defendant's Sixth Amendment right to con-

front witnesses against him and his Fourteenth

Amendment right to a fair trial, are not

violated.

RESPECTFULLY SUBMITTED:

BUZZARD, wo „ HceNDERSON

: .

1 tor Appellant

- 40 -

"APPENDIX"

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON

IN AND FOR THE COUNTY OF THURSTON

STATE OF WASHINGTON

]

]

Plaintiff, 1

1

vs. ] NO. 79-1-200-7

U March 24, 1980

ANGEL HOFF, ]

]

Defendant. 1

U

ORAL OPINION GRANTING NEW TRIAL

THE COURT: Well, the Court has been

bothered by this case from its very beginning,

as has everyone else. Mr. Tabor was frustrated

with the case, the Court was, Mr. Hoff was.

It was a very difficult set of circumstances,

and the Court is going to grant a new trial based

upon Criminal Rule 7.6, Subsection 8, that

substantial justice has not been done.

The Court relies on the Swenson Case

(62 Wn. (2d) 259). This present case is not

one where there was any prosecutorial mis-

conduct, any kind of vindictive environment,

any attempt to railroad Mr. Hoff at all. In

fact, it was an effort on the part of every-

body to deal with an unrepresented defendant,

where it is not impossible to know answers to

questions, it is not possible to know about

questions the defendant will ask and the

answers to them. It comes to be an almost un-

controllable process.

The Court is relying on the fact that Mr.

Hoff proved particularly inept in his re-

presentation of himself and the Court has to

say that straight away. It is, I believe, not

incumbent on the Court to make every objec-

tion for the defendant.

It is clearly established that Mr. Hoff

did waive his right to counsel and was repre-

senting himself knowingly and voluntarily,

and his responsibility to conduct the trial as

an advocate would conduct a trial is sub-

stantial. However, Mr. Hoff was pecularly un-

able to represent himself and that became more

apparent as the trial went on. The fact

that he insisted upon the retention of Willie

- 42 -

Durden's statement, as well as Mr. Nation's

statement, are good examples of his inability

to represent himself well. And the Court does

have to refer to the word "well" and underline

it, simply because there is no doubt that Mr.

Hoff was competent to waive his counsel, but

there is some area in which, on the other hand,

he was not really up to the job of repre-

senting himself adequately.

Also relying on the Swenson Case, the

Court refers to the affidavit of the juror.

The affidavit of the juror is not definitive

in any way, but it can be considered as one

element along with the others. If there was

simply the affidavit of Mrs. Ulery, the juror,

submited to the Court, the Court would not grant

a new trial. These are simply the matters that

often come up with the jurors when they have

a chance to feel uneasy after a verdict.

They are not normally grounds for granting a

new trial.

- 43 -

However, I do feel that this Court must

take the affidavit into consideration along

with many other things, and the Court will go

on to explain some of the other things.

The Court is particularly hesitant and

cautious in approaching the issue of appear-

ance of fairness. Mr. Hoff's affidavit,

which raises the issue of appearance of fairness,

which is supported by his counsel's brief,

points to an issue that was not raised dur-

ing trial, of which the Court had no idea

during the conduct of the trial, but none the

less, again considering this element with all

the others, the Court feels that it does

have some weight and that in the eyes of the

defendant, even though he did not raise the

issue, it must have seemed particularly un-

fair to him that a judge, who had previously

represented his wife in a very unpleasant dis-

solution case, should come to be his judge in

this very, very serious criminal case. And,

therefore, the Court must give some weight

- 44 -

to this issue of the appearance of fairness.

Further, the Court takes into consider-

ation the fact that there is now an attorney

who can represent Mr. Hoff in the way he

should be represented in our classic adver-

sary system. And even considering the expense,

the time, and effort, and energy involved, it

seems that the system is best served and the

interests of this defendant are best served,

and even the public in the broadest sense is

best served by conducting this trial again

in the way that it is anticipated thet such

trials will be conducted. That is with an

attorney.

The Court is satisfied at this point

that there will not be a new trial in this

matter without an attorney, that in fact an

attorney is available who will be able to

carry the matter through to its conclusion.

Further, the Court is really sobered

by the mandatory five year sentence in this

matter. What would appear perhaps not to

- 45 -

Support a new trial because of the seri-

ousness of the punishment.

It would be so easy to settle all of

this on appeal, but this Court feels that

having seen the trial first hand, having

dealt with the defendant face to face,

that the responsibility for this case must

rest with the trial court. And so the trial

court, even though reluctant to grant a new

trial, feels that in this particular in-

stance it is necessary.

As a short addendum, the Court will

simply address the affidavits of Mrs. Ulery

and Angel Hoff and say that the Court finds

that they come within the order of the

Court, which extended the time for the pre-

sentation of affidavits until the 25th of

February, 1980.

66s

2066

IN THE COURT OF APPEAL OF THE STATE OF WASHINGTON

THE STATE OF WASHINGTON, |

Appellant, NO. 4899-0-II

v. Division Two

ANGEL HOFF, - Filed: May 6, 1982

Respondent. )

WORSWICK, J.--How far may a trial court

go in rescuing a defendant from an inept pro

se defense? Not as far as the court went in

this case. On the State's appeal, we reverse

an order granting a new trial.

On July 26, 1979, defendant pushed a

fully clothed Craig Phelps into the swimming

pool at the Aquarian Apartments in Tumwater.

The next evening, Phelps, accompanied by

Willie Durden, returned to defendant's apart-

ment to secur an apology. An altercation en-

sued; Phelps hit defendant on the head with

a beer mug and Phelps and durden fled in their

car with defendant in hot pursuit. Defen-

dant chased them through two stoplights,

- 47 -

sometimes at high speeds, and allegedly fired

several shots at their car. Phelps and Dur-

den sought refuge in tie Thurston County

jail. Defendant was arrested later that day.

No weapon was ever found.

On August 2, defendant was charged with

second degree assault. He was represented

by counsel at his preliminary appearance and

arraignment, but on September 27, the court

allowed defense counsel to withdraw after de-

fendant stated that he wanted to represent

himself. Defendant indicated that he had

funds to hire a lawyer and that he understood

he had a right to a lawyer’. An amended

information adding the firearm allegation,

RCW 9.41.025, was filed on October 8. The

trial started on October 10 and on October 15,

a jury found defendant guilty of second

de fendant made no contention in the trial

court or here that the trial judge erred in

allowing defendant to represent himself. The

order granting a new trial expressly found

that defendant was competent to waive counsel

and did so knowingly and voluntarily.

- 48 -

degree assault while armed with a firearm.

After the verdict, an attorney other

than original defense counsel appeared and

filed post-trial motions on defendant's behalf.

Several continuances followed, apparently to

allow counsel time to procure affidavits in

support of the motions. Finally, on March 24,

1980, the motions were heard, with defendant

once again being represented by his origi-

nal pretrial defense attorney. A new trial

was granted. The order was extensive and de-

tailed but essentially it concluded that sub-

stantial justice had not been done because

the defense was inept, the juror claimed to

have been pressured into a verdict and there

was an appearance of fairness problem because

the trial judge had represented defendant's

wife several years earlier. The order specifi-

cally stated that no prosecutorial misconduct

occurred.

As to the inept defense issue, the State

apparently contends that defendant's decision

- 49 -

to represent himself precludes any considera-

tion on appeal of his ineffectiveness at

trial. On the other hand, defendant appar-

ently contends that a pro se defendant should

somehow be treated differently than one repre-

sented by counsel. He offers no proposed

standards.

In order properly to focus on this issue,

it is necessary first to consider the prin-

ciples out of which the right of pro se defense

arises. A defendant's right to represent

himself is guaranteed by the sixth amendment

to the United States Constitution and Article

1, Section 22, amendment 10 of our State con-

stitution Paretta v. California, 422 U.S. 806,

45 L. Ed. 2d 562, 95 8. Ct. 2525 (1975);

State v. Jessup, 21 Wn App. 304, 641 P.2d

1185 (1982). But unlike the right to the

assistance of counsel, the right to dispense

with such assistance and to represent one-

self is guaranteed not because it is essen-

tial to a fair trial but because the defendant

- 50 -

has the personal right to be a fool. See

State v. Fritz, 21 Wn. App. 354, 359, 585 P. 2d

173 (1978), quoting People v. Salazar, 74

Cal. App. Id 875, 888, 141 Cal. Rptr. 753

(1977). A pro se defendant must bear the conse-

quences of his or her own representation and

cannot on appeal complain of the quality of

the defense. State v. Fritz, 21 Wn. App. at

360.2

The rules of procedure aply equal ly to a

defendant represented by counsel or appear-

ing pro se. Bonney Lake v. Delany, 22 Wn. App.

193, 196, 588 P.2d 1203 (1978). Counsel cannot,

2% note here that the trial court remarked,

in ruling on the motions, that on retrial de-

fendant would be represented by counsel. This

is an unfound assumption. Defendant's right

to a pro se defense cannot be abridged by the

court. State v. Jessup, 31 Wn.App. 304, 641

p. 2d 1185 (1982). We also note that a new

trial should be granted only if the claimed

error was prejudicial (State v. Forbes, 74 Wn

24 420, 423, 445 p. 2d M (1968)), i.e. en

error which, if eliminated, would change the

result. State v. Smith, 72 Wn.2d 479, 484, 434,

p. 2d 5 (1567). Because defendant has the ab-

solute right to represent himself again, we

see no basis for assuming that he would not

make the same or similar mistakes.

claim errors, and later, if the verdict is

adverse, urge his trial objections for the

first time in his motion for new trial or ap-

peal; (Sherman v. Mobbs, 55 Wn.2d 202, 207,

347 P.2d 189 (1959)); neither may a pro se de-

fendant. In short, a pro se defendant is

simply not entitled to special consideration.

Although the trial court ruled there had

been no prosecutorial misconduct, defendant

appears to argue there was, preferring to de-

scribe it as “over-reaching." He cites 26

examples, the most serious of which involved

the admission into evidence of a hearsay state-

ment by Willie Durden. The record plainly

shows that it was defendant who insisted that

the statement come in because he thought it

supported his theory of the case; further, that

he persisted even after the trial judge had a

conference with him in chambers and offered him

the opportunity to have it withdrawn. The Ro-

secutor had little part in this. The other

examples were essentially trivial events of

= $2 «

the sort to be expected in a vigorously con-

tested adversary proceeding. Defendant ap-

pears to suggest that a prosecutor, as an offi-

cer of the court, is obligated to alter his

trial tactics when his adversary is a pro se

defendant. We reject the notion that the prose-

cutor and trial court must abide by some

special rules in these circumstances. One who

knowingly, intelligently and voluntarily opts

to represent himself is not entitled to three

lawyers: The prosecutor, the court and himself.

United States v. Pinkey, 548 F.2d 305, 311

(10th Cir. 1977); Burstein v. United States,

178 F.2d 665, 670 (9th Cir. 1949). On the

other hand, if there is presecutorial miscon-

duct, a pro se defendant is entitled to the

same relief he would be if represented by

counsel. See State v. Charlton, 90 Wn2d 657,

585 P. 20 142 (1978); State v. Torres, 16 Wn.

App. 254, 554 P.2d 1069 (1976).

Defendant claims an accumulation of

errors in this case similar to those in

- 53 -

State v. Swenson, 62 Wn2d 259, 382 p. 2d 614

(1963); thus, he claims, a new trial is

justified. We disagree. in Swenson, the

Supreme Court reversed the trial court's

denial of a motion for mistrial, primarily on

the basis of defendant's inability to cross-

examine the only witness implicating her in a

murder plot. Repeated emotion and physical

collapses by the witness precluded effective

cross-examination. The errors warranting a

mistrial were beyond the control of either the

court or defense counsel. Here, if anyone can

be blamed for the admission of evidence

damaging to defendant, it is the defendant

himself. His failure to object appropriately

and his lack of knowledge of evidentiary rules

are products of his decision to represent him-

self.

We can conceive of cases where an ap-

pellate court, on reviewing a whole record,

could be so shocked by the proceedings as to

conclude that the trial was a mockery and that

- 54 -

a self-represented defendant should therefore

be granted a new trial. This is not such a

case.

The second reason for the order granting

a new trial was a juror's affidavit stating

that the juror was sick with a clod during de-

liberation and that other jurors exerted

pressure on her to vote to convict the defen-

dant. The effect of a juror's illness and the

claimed pressure by others inheres in the ver-

dict and may not be used to impeach the ver-

dict. State v. Forsyth, 13 Wn. App. 133, 138,

533 P. 2d 847 (1975). In a motion to set aside

a verdict and grant a new trial, the verdict

cannot be affected either favorably or unfavor-

ably by the fact that one or more jurors as-

sented because of weariness, illness or impor-

tunities. Gardner v. Malone, 60 Wn.2d 836, 841,

376 P. 2d 651 (1962). Public policy forbids in-

quiries into the privacy of the jury's deliber-

ations. State v. Gay, 82 Wash. 423 439, 144

P. 711 (1914). The court should not have con-

~~.

sidered this affidavit.

The third reason for the order was a

claimed appearance of fairness question that

was brought brought to the attention of the

court for the first time more than three months

after the verdict. On January 19, 1980, defen-

dant submitted an affidavit advising the court

that three years earlier the judge had repre-

sented defendant's wife in a dissolution pro-

ceeding. We specifically addressed the failure

of a criminal defendant to raise an appearance

of fairness argument until after trial in

State v. Bolton, 23 Wn. App. 708, 598, P2d 734

(1979), in which we stated:

Obviously defendant was willing to take

his chances, hope for a favorable deci-

sion and resort to the appearance of

fairness argument only if he was unsuc-

cessful. Clearly, in these circumstances

defendant has waived any right to object

to the qualifications of the judge or the

fairness of the sentencing proceed-

ings--whether actual or apparent--and

cannot now raise such issue.

23 Wn. App. at 714-15. See also In re Carpen-

ter, 21 Wn. App. 814, 820, 587, P.2d 588 (1978).

Defendant relies on Diimmel v. Campbell, 68

- 56 -

1

Wn2d 697, 414 P. 2d 1022 (1966), in which the

Supreme Court affirmed an order granting a

new trial. In Diimmel, the trial judge's for-

mer law partner had written a letter express-

ing an opinion that coresponded to the judge's

ruling in the case. The judge was made aware

of the existence of the letter before the

trial and of its contents after his ruling.

The case is distinguishable. It involved a

trial by jury where the judge did not decide

th merits of the case and was largely without

discretion in sentencing because of a manda-

tory minimum sentence is involved. The judge

in Diimmel knew of the existence of the letter,

but not its contents, before he made his ruling.

In this case, the court was unaware of the

prior representation until well after the

trial. Defendant waived his right to make an

appearance of fairness objection.

Finally, we recognize that a trial court's

order granting a new trial should be reversed

only for manifest abuse of discretion.

2 §7 «

Diimmel v. Campbell, supra. Such abuse occurs

as a matter of law when there is no adequate

legal basis for the order. Mulka v. Keyes,

41 Wn.2d 427, 441, 249 P.2d 972 (1952). Our

review suggests to us that the trial judge was

principally motivated by compassion in grant-

ing a new trial. Commendable as this most

certainly was, it did not suffice as a substi-

tute for proper judicial discretion.

Reversed.

- 58 -