FILED
COURT OF APPEALS
DIVISION II
1015 FEB - 3 AM 8: 51
STATE OF WASHINGTON
BY
DEP. Y
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 44562 -0 -II
Respondent,
v.
RICHARD ANTHONY CARPENTER, UNPUBLISHED OPINION
Appellant.
JOHANSON, C. J. — Richard Anthony Carpenter appeals his jury convictions for first
degree assault, first degree robbery, and second degree unlawful possession of a firearm. - He
argues that the trial court violated his public trial rights when it permitted the parties to exercise
their peremptory challenges in writing and his .right to counsel when it denied his motion to
1
substitute counsel without an adequate inquiry.
We hold that the trial court did not violate Carpenter' s public trial right regarding
peremptory juror challenges because those challenges do not implicate the public trial right and
1 This case is linked for appeal with No. 44569 -7 -II and the two arguments in this appeal are
identical to the first two arguments in that appeal. Therefore, the language of the two opinions is
similar.
No. 44562 -0 -II
did not violate his Sixth Amendment right to counsel because Carpenter' s reasons for substituting
counsel were clear from the record and a formal inquiry was not necessary. Accordingly, we
affirm Carpenter' s convictions.
FACTS
In December 2011, Robert Bisom opened his front door to an unknown Carpenter
knocking, and Carpenter pushed his way into Bisom' s house. Carpenter asked Bisom for his keys
and when Bisom did not comply, a fight ensued. Finally Bisom surrendered and opened the safe
where he kept his car keys and a pistol. Carpenter threatened Bisom with the pistol, left the house
taking the keys and pistol with him, and was arrested later on unrelated charges. The State charged
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Carpenter with first degree assault, first degree robbery,3 and second degree unlawful possession
of a firearm.4
On May 11, 2012, during a pretrial status hearing, Carpenter' s counsel expressed concerns
about Carpenter' s competency. Although two mental health evaluators had found Carpenter to be
competent, his counsel sought a new evaluation because they were unable to communicate.
Because Carpenter refused to cooperate with his counsel and the mental health evaluators, it took
three visits before the second evaluation was accomplished. The court ordered the third evaluation.
The trial court also asked Carpenter' s counsel about his difficulties communicating with
Carpenter. Carpenter' s counsel explained that, in his opinion, Carpenter' s position was that " he
2 RCW 9A.36. 011.
3 RCW 9A.56. 200.
4
Former RCW 9. 41. 040( 2)( a) ( 2011).
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should go home now and that if [Carpenter' s counsel] can' t do that, [he is] not doing anything for
him." Report of Proceedings ( RP) ( May 11, 2012) at 1. Carpenter responded that "[ w] e don' t
have a, we don' t have a relationship, Judge. We cannot conversate [ sic] with each other." RP
May 11, 2012) at 5. Carpenter asked for a new attorney and the trial court told him to put his
motion for substitution of counsel in writing so that the court could consider it and the State could
respond.
On May 18, 2012, at a second competency status hearing, the trial court learned that
although Carpenter was willing to talk with the new evaluator, he was willing to discuss only topics
that were " acceptable" to him and refused to talk about his case. Due to Carpenter' s failure to
cooperate during the evaluation, the evaluator could not determine the cause of his inability to
work with his counsel. Carpenter' s counsel also told the court that Carpenter had been involved
in two j ail incidents in the 24 hours preceding the hearing, including an incident where he spat on
a corrections officer. Seven corrections officers were needed to escort Carpenter to court, and
because of his behavior, Carpenter had been charged with six counts of custodial assault.
Lieutenant James, a corrections officer, stated that he thought Carpenter might have " some mental
health issues" and that the mental health supervisor at the jail thought Carpenter probably had a
mood disorder. RP ( May 18, 2012) at 12. Lieutenant James also observed, however, that
Carpenter was willing to cooperate at times and usually " understood what was going on." RP
May 18, 2012) at 13.
The trial court found Carpenter to be competent and asked him why he had not submitted
a written motion for new counsel. When Carpenter informed the court that he was not allowed to
have a pencil or paper to prepare the motion, the court decided that " at this point I' m not going to
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allow Mr. Carpenter to discharge Mr. DePan. I think this is just partly his way of trying to
manipulate getting what he wants." RP ( May 18, 2012) at 14 -15. After the May 18 hearing, the
issue of substitution of counsel was not raised again, although trial occurred over eight months
later.
In January 2013, the trial court conducted voir dire in open court, and Carpenter and the
State questioned the venire and exercised their for -cause challenges. The State and Carpenter then
exercised their peremptory challenges on a written form that was later filed with the clerk.5 Based
on that written form, the trial court announced which jurors had been selected and excused the
others.
The jury convicted Carpenter on all three counts. He now appeals those convictions.
ANALYSIS
I. PEREMPTORY CHALLENGES Do NOT IMPLICATE THE PUBLIC TRIAL RIGHT
Carpenter argues that the trial court violated his public trial rights when the parties
exercised their peremptory challenges in writing. We held in State v. Dunn, 180 Wn. App. 570,
575, 321 P. 3d 1283 ( 2014), review denied, No. 90238 -1 ( Wash. Jan. 7, 2015), and again in State
v. Marks, Wn. App. , 339 P. 3d 196, 200 ( 2014), that exercising peremptory challenges
does not implicate the public trial right. Accordingly, we hold that the trial court did not violate
Carpenter' s public trial rights by allowing counsel to make peremptory challenges at a sidebar
conference.
5 As the parties made their challenges, the trial court made small talk with the prospective jurors
on the record. When the parties finalized their peremptory challenges with the clerk, the record
shows a "( Pause)" in the proceedings. RP ( Voir Dire Examination) (Jan. 24, 2013) at 154.
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II. SUBSTITUTION OF COUNSEL
Carpenter next argues that the trial court violated his Sixth Amendment rights when it
denied his motion to substitute counsel because it failed to conduct an adequate inquiry. We hold
that the trial court did not abuse its discretion when it denied Carpenter' s request for substitute
counsel because Carpenter' s reasons for substituting counsel were clear from the record, a formal
inquiry was not necessary, and it was reasonable for the trial court to find that there was not an
irreconcilable conflict or complete breakdown in communication.
A. STANDARD OF REVIEW AND RULES OF LAW
We review a trial court' s decision not to appoint new counsel for an abuse of discretion.
State v. Varga, 151 Wn.2d 179, 200, 86 P. 3d 139 ( 2004). A trial court abuses its discretion when
its decision is "' manifestly unreasonable or based upon untenable grounds or reasons. "' State v.
Garcia, 179 Wn.2d 828, 844, 318 P. 3d 266 ( 2014) ( internal quotation marks omitted) ( quoting
State v. Lamb, 175 Wn.2d 121, 127, 285 P. 3d 27 ( 2012)). Criminal defendants are generally
guaranteed the right to counsel. U. S. CONST. amend. VI; WASH. CONST. art. I, § 22. A defendant,
however, does not have an absolute right "` to choose any particular advocate.'" Varga, 151 Wn.2d
at 200 ( quoting State v. Stenson, 132 Wn.2d 668, 733, 940 P. 2d 1239 ( 1997), cent. denied, 523
U.S. 1008 ( 1998)).
In order to justify substitution of counsel, the defendant must show good cause for the
substitution, such as "' a conflict of interest, an irreconcilable conflict, or a complete breakdown in
communication. "' Varga, 151 Wn.2d at 200 ( quoting Stenson, 132 Wn.2d at 734). A substitution
of counsel may be justified when the attorney -client relationship is plagued by things that suggest
that the attorney cannot provide diligent representation. In re Pers. Restraint of Stenson, 142
No. 44562 -0 -II
Wn.2d 710, 724 -31, 16 P. 3d 1 ( 2001). However, a defendant must show more than a general loss
of trust or confidence. State v. Schaller, 143 Wn. App. 258, 268, 177 P. 3d 1139 ( 2007), review
denied, 164 Wn.2d 1015 ( 2008). The cause of the breakdown in communication matters as well,
and Carpenter must show that the breakdown is not because of his own refusal to cooperate.
Schaller, 143 Wn. App. at 271.
Where the representation was inadequate, this court will presume prejudice. Schaller, 143
Wn. App. at 270. If his counsel' s representation was adequate, however, Carpenter must
demonstrate prejudice. Schaller, 143 Wn. App. at 270. To determine whether the breakdown in
communication entitled Carpenter to new counsel, we examine three factors: ( 1) the extent of the
conflict, (2) the adequacy of the trial court' s inquiry into the conflict, and ( 3) the timeliness of the
motion for substitution of counsel. State v. Cross, 156 Wn.2d 580, 607, 132 P. 3d 80, cert. denied,
549 U. S. 1022 ( 2006).
B. ANALYSIS
1. EXTENT OF THE CONFLICT
We must first consider the extent and nature of the breakdown in communication and what
effect, if any, the breakdown had on the representation that Carpenter received. State v. Thompson,
169 Wn. App. 436, 457, 290 P. 3d 996 ( 2012), review denied, 176 Wn.2d 1023 ( 2013); Schaller,
143 Wn. App. at 270. Carpenter does not argue that his counsel had a conflict of interest and fails
to demonstrate an irreconcilable conflict or a complete breakdown in communication for three
reasons.
First, the record suggests that the reason for the breakdown in communication was
Carpenter' s own refusal to cooperate and not his counsel' s ill will or failure to engage or to try to
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communicate. The record shows that Carpenter refused to communicate with his counsel about
his case, was only willing to engage with the mental health evaluator about topics that were
acceptable" to Carpenter and not about the charges pending against him, and that Carpenter did
not cooperate with the guards at the jail. In fact, because Carpenter refused to cooperate with
corrections officers, seven officers were needed to escort him to court. Carpenter, therefore, did
not only struggle to communicate with his own counsel but was generally uncooperative and
struggled to communicate with everyone. Carpenter, however, is not entitled to new counsel
simply because he refused to cooperate. Thompson, 169 Wn. App. at 457 -58 ( "` It is well settled
that a defendant is not entitled to demand a reassignment of counsel on the basis of a breakdown
in communications where he simply refuses to cooperate with his attorneys. ' ( quoting Schaller,
143 Wn. App. at 271)).
Second, during the May 11 and May 18, 2012 hearings, Carpenter' s counsel thought that
Carpenter' s failure to communicate might have been due, in part, to a competency problem. This
fact suggests that the nature of his failure to communicate was not a deep- seated, irreconcilable
conflict with counsel but latent mental health problems. Carpenter' s counsel sought a new
evaluation and different medication to identify and to remedy these problems so that he could
provide more effective representation. The nature of the conflict between Carpenter and his
counsel is, therefore, at best, the result of Carpenter' s mental health problems and, at worst, due to
Carpenter' s general intransigence. Neither fact suggests that Carpenter and his counsel had a
complete breakdown in communication that prevented diligent, adequate representation.
Finally, there was no evidence at the time of Carpenter' s motion that this problem
prevented his counsel from providing adequate representation, and Carpenter does not argue that
No. 44562 -0 -II
his counsel' s continued representation prejudiced him. Carpenter' s counsel agreed that he had
not been able to converse with Mr. Carpenter regarding the facts of this case, ... his ability to
work with his attorney is zero, and I have no ability to unless Mr. Carpenter' s behavior changes."
RP ( May 18, 2012) at 5 - 6. But he continued to represent Carpenter diligently. The record from
just the May 11 and May 18 hearings shows that Carpenter' s counsel made multiple attempts to
visit him to try to work on their case. Carpenter' s counsel sought an additional mental health
evaluation and different medications to try to address their communication problem.
Carpenter does not argue that his representation was inadequate, only that there was a
breakdown in communication and the trial court' s inquiry was inadequate to determine the extent
of the breakdown. He fails to address the facts in the record, does not claim that they demonstrate
that any alleged breakdown in communication caused deficient representation, and did not.renew
his motion for new counsel in the more than eight months between his first motion and the start of
trial.
The nature and extent of the alleged conflict does not weigh in favor of substitution of
counsel because Carpenter failed to demonstrate that there was a breakdown in communication
that affected his representation.
2. ADEQUACY OF THE TRIAL COURT' S INQUIRY
Carpenter argues that the trial court conducted no inquiry at all into the nature and extent
of his conflict with his attorney. We conclude that the record here provided sufficient information
for the trial court to determine the nature and extent of the conflict.
An adequate inquiry includes a " full airing of the concerns" and a " meaningful inquiry by
the trial court." Cross, 156 Wn.2d at 610. However, a "[ fJormal inquiry is not always essential
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where the defendant otherwise states his reasons for dissatisfaction on the record." Schaller, 143
Wn. App. at 272.
Here, the trial court did not extensively inquire into Carpenter' s reasons for wanting new
counsel, but the reasons Carpenter sought new counsel were clear from the record. As Carpenter
stated, he and his counsel did not "have a relationship" and were struggling to communicate about
his case. RP ( May 11, 2012) at 5. Carpenter' s counsel agreed with Carpenter' s characterization
of their relationship but continued to try to work with Carpenter and with the court so that he could
provide effective representation. From the record of the May 11 and May 18 hearings, the trial
court was also aware of Carpenter' s many struggles to cooperate with his mental health evaluators
and corrections officers as well as his own counsel.
The nature and extent of Carpenter' s conflict with his counsel was evident, and the trial
court did not abuse its discretion when it did not conduct additional, formal inquiry into the
conflict.
3. TIMELINESS OF THE MOTION
Carpenter argues that the trial court did not consider timeliness as a factor when it denied
his motion to substitute counsel and that, regardless, timeliness was not an issue because at the
time of his motion, no trial date had been set.
An untimely motion to substitute counsel weighs against a defendant' s attempt to establish
that an irreconcilable conflict existed. Stenson, 142 Wn.2d at 732. In this case, Carpenter asked
the court for a new attorney on May 11, 2012, and the court denied his request on May 18. Jury
selection for Carpenter' s trial did not begin until January 24, 2013, more than eight months later.
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Timeliness, therefore, weighs in favor of Carpenter' s argument that the trial court erred when it
denied his motion.
4. SUMMARY
The extent of Carpenter' s conflict with his counsel was substantial but not irreconcilable.
The nature of their conflict was, at best, because of Carpenter' s mental health problems and, at
worst, because Carpenter simply refused to cooperate with everyone, and this conflict did not
prevent Carpenter' s counsel from providing adequate representation. The nature and extent of
their conflict was clear from the record and from Carpenter' s own statements.
The trial court denied Carpenter' s motion on May 18 because it found that the motion was
intended to " manipulate getting what he wants," presumably to manipulate the trial process. RP
May 18, 2012) at 15. The trial court did not find a complete breakdown in communication or an
irreconcilable conflict and, based on the May 11 and May 18 hearings, these determinations were
not an abuse of discretion.
The trial court did not abuse its discretion when it denied Carpenter' s request for new
counsel because ( 1) Carpenter' s reasons for substituting counsel were clear from the record, ( 2) a
formal inquiry was not necessary, and ( 3) it was reasonable for the trial court to find that there was
not an irreconcilable conflict or complete breakdown in communication. Accordingly, Carpenter' s
argument fails.
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We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
We concur:
MAX
SUTTON, J.
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