STATE OF WASHINGTON v. GREGORY LEE ALLEN (2011)

BACKGROUND

On May 13, 2008, Allen filed two pro se hand-printed documents:  (1) a “Notice of motion to withdraw counsel and allow Defendant to proceed Pro se” dated May 7 and indicating a hearing date of May 12;  and (2) a “Notice of Motion to withdraw Counsel and appointment of New Counsel” dated May 8 and indicating a hearing date of May 19.   At a hearing on May 30, 2008, Allen complained that Mosley had not communicated with him or spent enough time on his case and indicated his wish to “fire him.” ⁵  Based on Mosley's assurances regarding additional communications, the trial court stated, “So any motion to terminate that relationship for today is denied.” ⁶

At a hearing on January 9, 2009, the trial court allowed Mosley to withdraw due to conflict.   Allen stated, “I want a new lawyer” and “I need counsel.” ⁷  On February 9, 2009, the trial court appointed Karen Halverson, an attorney in private practice in Snohomish County, to represent Allen.   After trial in May 2009, the jury convicted Allen as charged.

Allen appeals.

Analysis

Allen contends that the trial court denied his right to represent himself.   Although the constitutional right to self-representation is fundamental, it is neither absolute nor self-executing.⁸  A request to proceed pro se must be timely made and stated unequivocally.⁹  We review a trial court's denial of a motion to proceed pro se for abuse of discretion.¹⁰

Allen claims that his “notice of motion” dated May 7 and filed May 13, 2008, constitutes a timely and unequivocal request to proceed pro se and the trial court abused its discretion by “denying” his request.   The record does not support his claim.   At the May 30 hearing, the trial court asked Allen, “What would you like the court to do today?” ¹¹  Allen did not refer to the “notice of motion,” did not ask to proceed pro se, and did not state any desire to waive his right to counsel.   On the contrary, Allen continued to request new counsel.   And he repeatedly requested new counsel at subsequent hearings.   In light of this record, Allen fails to identify an unequivocal request to proceed pro se and, therefore, cannot establish a denial of his right to represent himself.

In his statement of additional grounds for review, Allen first argues that the State failed to present sufficient evidence to prove that his letter to the Bar investigator constituted a “true threat” to McConnell.   Under the First Amendment, the State may not criminalize threats which are “merely jokes, idle talk, or hyperbole,” but may proscribe a “true threat,” that is, “ ‘a statement made in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted as a serious expression of intention to inflict bodily harm upon or to take the life of another person.’ ” ¹²  Evidence is sufficient if it permits a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.¹³

Allen contends that his statement regarding “thoughts” could not be considered more than idle talk, particularly in light of the fact that the Bar investigator did not reopen the complaint and McConnell's testimony that he “didn't consider it a direct threat to kill me,” because Allen “wasn't talking directly to me.   Just saying what was going on in his mind.” ¹⁴  But McConnell also testified that the combination of the statement in the letter that “threatens murder-suicide of me ․ if the Bar Association didn't do something about me,” and the Bar association's letter to Allen stating that it would take no action made McConnell believe that Allen would act on the threat to kill him.¹⁵  McConnell testified that he had “a history with this guy, and it was awful,” and that he took the threat seriously.¹⁶  As part of that history, McConnell testified that he had requested an armed guard to stand behind him during pretrial hearings in Allen's theft case because Allen had threatened to assault McConnell.   From the evidence, the jury could have concluded that a reasonable person in Allen's position would have foreseen that his expression of “very strong thoughts of murder-suicide” and his intention to “go after” McConnell in his letter to the Bar regarding his dissatisfaction with McConnell's performance and the Bar's response would be interpreted as a serious expression of his intention to take McConnell's life.

Allen next claims that Halverson provided ineffective assistance by failing to raise an affirmative defense that Allen was unable to form the requisite intent to commit the crimes charged because of his extreme emotional and physical distress before, during, and after the offense.   To prove ineffective assistance, Allen must show both deficient performance and resulting prejudice.¹⁷  Legitimate trial tactics or strategy cannot be the basis for an ineffective assistance of counsel claim.¹⁸

In closing, defense counsel argued that when viewed in the context of the whole letter and along with his other letters to the Bar investigator, Allen's statement that he would “go after” McConnell referred only to filing a civil law suit.   Admitting that Allen was frustrated and angry, defense counsel argued that Allen's actions were reasonable given his circumstances and that McConnell understood that Allen was not seriously threatening physical violence.   Counsel highlighted evidence showing that Allen referred to a civil suit and requested documents and other evidence to support his claims against McConnell throughout his communication with the Bar. Defense counsel also referred to McConnell's testimony that Allen had not acted on any threats of assault in the past and that McConnell did not consider certain statements by Allen as threats to kill.   Given these arguments, Allen fails to demonstrate how it was not a legitimate strategic decision for counsel to decide not to argue that Allen was, in effect, emotionally out of control.   Moreover, Allen fails to identify any evidence to support such a claim beyond his own self-serving statements.   This claim fails.

In his third ground, Allen argues that the State failed to present sufficient evidence to support the two additional counts of harassment.   The State presented evidence that Allen sent documents entitled “Last Will and Testament” to McConnell and Furness.   Allen claims that because the documents were blank, they could not be considered true threats.   But the jury heard evidence that Allen made threats to “go after” McConnell and to “come after” Furness.   McConnell and Furness each testified to receiving a will form from Allen with the name filled in.   Both McConnell and Furness believed the document communicated a threat to kill.   From this evidence, the jury could conclude that a reasonable person in Allen's position would have foreseen that sending will forms to people to whom he had made threatening statements would have been interpreted as a serious expression of intent to kill.

Citing WPIC 36.21.01, Allen next contends for the first time on appeal that the trial court failed to properly instruct the jury by including the term “felony” in the “to convict” instruction for the stalking count involving McConnell.   WPIC 36.21.01 provides a definition of stalking to be used “if it will help the jury understand the charged offense or if it is necessary to define this particular offense for the jury,” and further provides that the term “felony” may be included in a stalking definition “only if the jury is also being instructed on the gross misdemeanor from of stalking.” ¹⁹  But Allen fails to establish that the WPIC necessarily requires the term “felony” in the definition instruction, let alone the “to convict” instruction as he claims.   Moreover, Allen fails to identify any resulting prejudice that would survive a harmless error analysis.

Allen next challenges his exceptional sentenced on the felony stalking charge involving McConnell, claiming that the jury's findings do not justify both the exceptional sentence and the elevation of the charge to a felony.  RCW 9A.46.110(5)(b)(v) elevates stalking to a felony when the jury finds that the defendant stalked an attorney to retaliate for actions performed in the course of the attorney's official duties.  RCW 9.94A.535(3)(r) provides for an exceptional sentence above the standard range based on a jury's finding that the offense “involved a destructive and foreseeable impact on persons other than the victim.”   The jury answered special verdict forms finding both of these circumstances with respect to the stalking count involving McConnell.   This claim has no merit.

Allen claims that a 20 year sentence for stalking and harassment is excessive because he has “no history of drugs, weapons or violence.” ²⁰  He suggests 20 years is appropriate for murder.   But the trial court entered findings and conclusions detailing the jury's findings of aggravating circumstances, as well as Allen's prior unscored misdemeanor history, multiple current offenses, and high offender score.²¹  Allen has not shown a sufficient basis to question these findings and conclusions in his bare assertion regarding excessiveness.

In his eighth ground, Allen claims that his conviction for stalking and harassment violate double jeopardy.   But the predicate acts supporting the stalking conviction are distinct from the pattern of conduct they together comprise.²²  There is no double jeopardy violation.

Next, Allen appears to claim that he was denied his Sixth Amendment right to conflict-free counsel because the trial court did not remove Mosley as defense counsel at a hearing on November 14, 2008.   He also claims that the trial court failed to conduct an adequate inquiry into his potential conflict of interest with Halverson at trial on May 18, 2009.   Because these claims are not sufficiently explained or supported by evidence in the record, we cannot review them.²³

In his eleventh ground, Allen complains that the State presented evidence that he had a prior conviction for theft despite the fact that he did not testify.   Allen has not referred to the record to support his claim.   On the first day of trial, outside the presence of the jury, the trial court granted the defense request that the State be prohibited from identifying the charges against Allen in the prior case in which McConnell represented Allen.   Although McConnell testified that Corvettes were “at the heart of the case,” he did not identify the crime charged or describe the underlying facts.²⁴  Allen fails to identify grounds for relief.

Next, Allen includes a list of 49 items under the heading “Cumulative Error Doctrine.”   Items 1 through 25 and 29 through 49 attribute errors to defense counsel regarding the alleged failure to interview and call several witnesses, request certain hearings, provide Allen with clothing for trial, present evidence and defenses, impeach State witnesses, challenge venue, and object to exhibits.   The majority of these items are supported by little or no explanation, appear to refer to matters outside the record, or do not allege or explain any resulting prejudice.   Under these circumstances, we cannot review them.²⁵  Items 27 and 28 appear to restate issues addressed above.   In item 26, Allen assigns error to the trial court's failure to conduct a CrR 3.5 hearing to determine whether statements identified as the basis for the harassment charges “fall within or without the protections of the First Amendment.” ²⁶  Because CrR 3.5 does not require such an inquiry, Allen fails to establish error.

In his final ground, Allen contends that the prosecutor failed to provide to defense counsel in discovery copies of certain letters in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).   He also alleges Halverson filed a false declaration claiming to have found the letters after trial in a box of discovery she had previously received from Mosley in order to harm his motion for a new trial based on the alleged Brady violation.   But the trial court denied the defense motion for a new trial on July 10, 2009, based on its finding that the State provided the letters to the defense, and

more importantly, these particular letters would not have been admissible at trial, nor would they have led to any admissible evidence.   They are letters that by their own dates were created after the alleged acts occurred in this case, and they would have no bearing on the charges that this case went to trial on.

So and I think it's also noteworthy, of course, that the letters themselves were generated from the defendant.   They're not material that was unknown to the defendant.   So for all those reasons, the motion for new trial is denied.[[27]

Because Allen fails to show a sufficient basis to question the trial court's findings that the letters in question were not material or exculpatory, he is not entitled to relief.

Affirmed.

WE CONCUR:

FOOTNOTES

FOOTNOTE.  

FOOTNOTE.  

FOOTNOTE.  

FOOTNOTE.  

FN5. RP (May 30, 2008) at 5..  FN5. RP (May 30, 2008) at 5.

FN6. Id. at 6..  FN6. Id. at 6.

FN7. RP (Jan. 9, 2009) at 6;  11..  FN7. RP (Jan. 9, 2009) at 6;  11.

FN8. Wash. Const.. art.   I, § 22;  Faretta v. California, 422 U.S. 806, 816, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975);  State v. Madsen, 168 Wn.2d 469, 504, 229 P.3d 714 (2010);  State v. Woods, 143 Wn.2d 561, 585–86, 23 P.3d 1046 (2001)..  FN8. Wash. Const.. art.   I, § 22;  Faretta v. California, 422 U.S. 806, 816, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975);  State v. Madsen, 168 Wn.2d 469, 504, 229 P.3d 714 (2010);  State v. Woods, 143 Wn.2d 561, 585–86, 23 P.3d 1046 (2001).

FN9. State v. Stenson, 132 Wn.2d 668, 737, 940 P.2d 1239 (1997) (trial court did not abuse discretion by denying request to proceed pro se based on conditional and equivocal statements regarding self-representation during request for new counsel)..  FN9. State v. Stenson, 132 Wn.2d 668, 737, 940 P.2d 1239 (1997) (trial court did not abuse discretion by denying request to proceed pro se based on conditional and equivocal statements regarding self-representation during request for new counsel).

FN10. Madsen, 168 Wn.2d at 504..  FN10. Madsen, 168 Wn.2d at 504.

FN11. RP (May 30, 2008) at 5..  FN11. RP (May 30, 2008) at 5.

FN12. State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010) (quoting State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004))..  FN12. State v. Schaler, 169 Wn.2d 274, 283, 236 P.3d 858 (2010) (quoting State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004)).

FN13. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)..  FN13. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

FN14. RP (May 19, 2009) at 88–89..  FN14. RP (May 19, 2009) at 88–89.

FN15. Id. at 87..  FN15. Id. at 87.

FN16. Id. at 88..  FN16. Id. at 88.

FN17. State v. McFarland, 127 Wn.2d 322, 334–35, 899 P.2d 1251 (1995)..  FN17. State v. McFarland, 127 Wn.2d 322, 334–35, 899 P.2d 1251 (1995).

FN18. State v. Alvarado, 89 Wn.App. 543, 553, 949 P.2d 831 (1998)..  FN18. State v. Alvarado, 89 Wn.App. 543, 553, 949 P.2d 831 (1998).

FN19. 11 Washington Practice:  Washington Pattern Jury Instructions:  Criminal § 36.21.01, note on use at 597 (3d ed.2008)..  FN19. 11 Washington Practice:  Washington Pattern Jury Instructions:  Criminal § 36.21.01, note on use at 597 (3d ed.2008).

FN20. Statement of Additional Grounds (SAG), Ground # 7..  FN20. Statement of Additional Grounds (SAG), Ground # 7.

FN21. See RCW 9.94A.535(2)(b)-(c)..  FN21. See RCW 9.94A.535(2)(b)-(c).

FN22. State v. Haines, 151 Wn.App. 428, 440–41, 213 P.3d 602 (2009) (no double jeopardy violation in imposition of sentence on stalking charge based on threats as well as two harassment charges for threats on two separate occasions), review denied, 167 Wn.2d 1022 (2010);  State v. Parmelee, 108 Wn.App. 702, 709, 32 P.3d 1029 (2001) (no double jeopardy violation in sentences for stalking and multiple court order violations because each court order violation charge was based on a different letter and the stalking charge was established by the multiple letters)..  FN22. State v. Haines, 151 Wn.App. 428, 440–41, 213 P.3d 602 (2009) (no double jeopardy violation in imposition of sentence on stalking charge based on threats as well as two harassment charges for threats on two separate occasions), review denied, 167 Wn.2d 1022 (2010);  State v. Parmelee, 108 Wn.App. 702, 709, 32 P.3d 1029 (2001) (no double jeopardy violation in sentences for stalking and multiple court order violations because each court order violation charge was based on a different letter and the stalking charge was established by the multiple letters).

FN23. See RAP 10.10(c)..  FN23. See RAP 10.10(c).

FN24. RP (May 19, 2009) at 67..  FN24. RP (May 19, 2009) at 67.

FN25. See RAP 10.10(c);  McFarland, 127 Wn.2d at 335..  FN25. See RAP 10.10(c);  McFarland, 127 Wn.2d at 335.

FN26. SAG, Ground # 12(26)..  FN26. SAG, Ground # 12(26).

FN27. RP (July 10, 2009) at 4–5..  FN27. RP (July 10, 2009) at 4–5.

Ellington, J.—Gregory Allen appeals his conviction for stalking and harassing his former defense counsel and an employee of the Office of Public Defense.   Allen contends that he was denied his right to represent himself at trial.   Because Allen fails to identify in the record an unequivocal request to proceed pro se and because he fails to demonstrate grounds for relief in his additional assignments of error, we affirm.   In 2004, the State charged Gregory Allen with certain crimes, including first degree theft.   Over a period of several months, Allen repeatedly complained about his court appointed attorneys to Carole Furness, the felony coordinator for the Office of Public Defense.   After allowing a series of defense attorneys to withdraw from Allen's case, the trial court appointed Kevin McConnell to represent Allen.   In March 2005, McConnell represented Allen at trial and the jury convicted Allen as charged.1  Some months after Allen's sentencing in June 2005, the Washington State Bar Association notified McConnell that it had dismissed a complaint filed against him by Allen.   The notice included a copy of Allen's letter to the Bar investigator stating:  You know this whole mess has inflicted an enormous amount of emotional and physical distress upon me.   I've even had very strong thoughts of murder-suicide.   I'm an innocent man who was convicted by his own freaking lawyer.   If you don't reopen my complaint, then I'll just go after that fucker myself.[2]  Over the next several months, McConnell received correspondence indicating that Allen knew McConnell's home address and containing various statements McConnell found threatening.   McConnell notified police, obtained a concealed weapons permit, and assisted his employer in implementing special security measures.   Furness also received threatening letters from Allen and notified police.   The State charged Allen with felony stalking as to McConnell, misdemeanor stalking as to Furness, two counts of felony harassment of McConnell and one count of felony harassment of Furness.   Between the initial filing in late December 2007 and the trial in May 2009, Allen repeatedly expressed dissatisfaction with appointed counsel.   Because Allen had conflicts with the public defense agencies in King County, the trial court appointed Kirk Mosley, an attorney from Pierce County.At a hearing on March 28, 2008, Allen complained that Mosley had not met with him and that they had a conflict of interest.   After Mosley agreed to meet with Allen, the trial court denied Allen's motion for new counsel.   At a hearing on a defense motion to continue on April 25, 2008, Allen mentioned that he had “filed motions myself” but did not receive “a response from the court.” 3  The trial court specifically stated that it was “not in a position ․ to even respond, as long as you have any attorney representing you,” recognized that Allen had “a number of concerns,” and advised him to speak to his attorney “about setting a motion before the criminal motions judge.” 4 FN1. This court affirmed the conviction in an unpublished decision in State v. Allen, No. 55957–5–I (Wash.Ct.App. Jan. 16, 2007). FN2. Report of Proceedings (RP) (May 19, 2009) at 87–88. FN3. RP (Apr. 25, 2008) at 7. FN4. Id. at 7–8.