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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON —r1 "71
STATE OF WASHINGTON, ) r_n—Vri rci
) DIVISION ONE r—
Lt., cm
Respondent, ) ‘P.
) No. 76033-5-1 7: "'—
I.-4
v. )
) UNPUBLISHED OPINION
MARKIS ADAM OVERLY, )
)
Appellant. ) FILED: January 17, 2017
)
DWYER, J. — Markis Overly appeals from the judgment entered on a jury's
verdict finding him guilty of one count of harassment of a criminal justice
participant, a class C felony. The same jury acquitted him of a charge of threats
to bomb or injure property, a class B felony. He asserts that the State failed to
present sufficient evidence to support his conviction, that his counsel provided
constitutionally ineffective representation by not pursuing a diminished capacity
defense, that the trial court improperly denied his two requests to proceed pro se,
and that the sentencing court erred by imposing mandatory legal financial
obligations without first conducting an inquiry into his ability to pay pursuant to
RCW 9.94A.777. There was no error. We affirm.
No. 76033-5-1/2
Overly was employed by the Department of Veterans Affairs (VA).
Overly's supervisor and coworkers viewed him as a good worker who was
generally cordial and pleasant.
Overly went on temporary medical leave in November 2012. Three
months later, while visiting the VA for medical treatment, Overly had a negative
interaction with two elderly patients.' The incident caused Overly to urge the VA
police to arrest the patients. However, the responding officer, Detective Ulysses
Rambayon, declined to take further action.
A month later, as part of his ongoing medical treatment, Overly began
seeing a psychiatrist, Dr. Deborah Hickey, for treatment of his depression and
anxiety and to evaluate him for bipolar mood disorder. Overly visited with Dr.
Hickey eight times between March and the end of June.
On June 27, Overly met with Dr. Hickey for a scheduled appointment. He
seemed "extremely agitated," having just arrived from an encounter with the
same elderly couple from the February incident. Overly said that he had not
taken his medication for several weeks.
During the session, Overly repeated an earlier request that Dr. Hickey
write a letter diagnosing him as suffering from a permanent disability so that he
could retire from working at the VA. Dr. Hickey declined, explaining that she had
not yet completed his evaluation and treatment. Dr. Hickey further told Overly
that, as he was aware, she had already written a letter extending his temporary
1 Overly believed he had been assaulted.
-2-
No. 76033-5-1/3
medical leave for an additional two months. Overly intimated that, if he could not
get the letter diagnosing him as permanently disabled, he would "solve it in his
own fashion."
Overly began to voice his frustration with the VA and that he felt
disrespected by the VA police—specifically for their failure to arrest the elderly
patients involved in the February incident. Overly then became "very angry,"
saying that he was going to go to the VA with a gun and kill 20 people and that,
after the shooting, he planned to commit "suicide by police." Overly said that,
because he did not currently own a gun, his plan was to wait until he received his
paycheck the next day, use that money to purchase a gun, and then go to the
VA.
In an attempt to defuse the situation, Dr. Hickey asked Overly how his son
would feel about the actions he described. Overly replied that his son "would be
proud of him when he grew up and understood what the issues were." Near the
end of the appointment, Overly stood up and began shaking his finger in Dr.
Hickey's face, telling her that, if she had been "legally raped" by the VA police,
she would understand why he did not want to go back to the VA. Despite Dr.
Hickey's efforts to convince him to stay, Overly left the therapy session 20
minutes early, saying that he would not be returning.
Throughout the day, Dr. Hickey repeatedly attempted to contact Overly's
psychologist, Dr. Coon, who had been treating Overly for more than a year. She
was unable to reach him. Dr. Hickey did not contact the VA.
-3
No. 76033-5-1/4
Meanwhile, nearly 20 minutes after he left his therapy session, Overly
telephoned the VA police department and spoke with the supervising officer,
Lieutenant Freedom Hadnot. During the conversation, Overly heatedly
expressed his frustration about the inadequacy of the response by the VA police
to the February incident.
One hour later, Overly telephoned Richard Tangen, his supervisor at the
VA, with whom he had worked for a year and a half. They spoke for 40 minutes.
The tone of Overly's voice was "very agitated" throughout. At the outset of their
conversation, Overly stated that "things were coming to an end," that he was not
coming back to work, that he was "tired of dealing with everyone," and that the
VA police violated his rights by failing to pursue the arrests he requested.
Overly said that he had not taken his medication recently and that, in
response to his situation, he planned to "exercise his Second Amendment right"
and "strap up." Overly further said that the sign near the entrance to the VA
indicating that no weapons were permitted on the campus was a "joke" and that
the media would be all over the place after "the incident," wondering why an
"exemplary employee did what - - whatever would happen." He said that he was
going to target the VA police first and that he was particularly upset with
Detective Rambayon. He said that he was going to start with the building in
which Detective Rambayon worked and that he was going to blow up a building,
not caring if it took out an entire block. Overly repeatedly indicated that he had a
plan for how to proceed in his journal and on his computer, but when pressed for
more detail, he declined to elaborate.
4
No. 76033-5-1/5
Tangen urged Overly not to purchase a firearm. Overly replied that he did
not presently have a gun but that he could go out and purchase one that day.
Tangen asked him to consider about what his kids would think if he followed
through on his statements. Overly replied that entries on his computer and in his
journal would explain what he was thinking.
Early in the conversation, Tangen became concerned that Overly would
actually carry out the threats. Tangen felt this way for several reasons, including
that he felt that working at a government installation placed him at a greater risk
of harm than the average person, that Overly's angry and upset demeanor on the
telephone call strongly clashed with his prior view of Overly as a pleasant and
cordial employee, and that he did not know what Overly was capable of doing.
Tangen urged a coworker to contact the VA police. The coworker did so.
Officers John Gladson and Scott Sherman, who worked in a building a few
minutes away, were dispatched to Tangen's office. The telephone call had been
placed on speakerphone in Tangen's office and Officers Gladson and Sherman
listened in. Officer Gladson left 10 minutes after arriving to notify his superior
about the call and but later spoke with Officer Sherman about that which had
transpired while he was out of the room. Officer Sherman listened to the call for
between 20 and 30 minutes.
Officer Gladson became concerned that Overly intended to carry out the
actions that he described. Officer Gladson had known Overly beforehand and
had not heard this level of anger from him before. Officer Sherman, who had
never met Overly, also felt concerned that Overly intended to carry out his threats
5
No. 76033-5-1/6
because of his angry tone and the methodical manner in which he explained his
plan and the actions he would take.
Overly was arrested later that day. He was charged with the crimes of
harassment of a criminal justice participant, a class C felony, and threats to bomb
or injure property, a class B felony.
Prior to trial, Overly's attorneys elected to argue a theory of general denial
for both charges and declined to pursue a diminished capacity defense.
On the first day of trial, after the jury was empaneled, Overly requested to
proceed pro se. Soon thereafter, he clarified his request as one to have more
time with his attorneys before each day of trial. The trial court asked Overly if he
was withdrawing his motion to represent himself and he replied, "Correct. I just
want contact. If I get that, that's fine."
At trial, the State called Dr. Hickey, who testified to her psychiatric
treatment of Overly and the statements that he made during the June 27 therapy
session. The State also called Tangen, Lieutenant Hadnot, Officer Gladson, and
Officer Sherman, who testified regarding Overly's statements on the telephone.
The jury convicted Overly of harassment of a criminal justice participant
and found him not guilty of the charge of threats to bomb or injure property.
Immediately after the jury verdict, and again on the day of his sentencing
hearing, Overly requested to proceed pro se at sentencing. The trial court
initially denied his motion but, at the sentencing hearing, the court permitted him
to proceed pro se. Overly then represented himself at the hearing.
6
No. 76033-5-1/7
The court sentenced Overly to 12 months of community custody and
imposed legal financial obligations of $800.
11
A
Overly contends that the State failed to present sufficient evidence to
support his conviction. This is so, he asserts, because insufficient evidence was
presented to support either the jury's finding that his statements constituted a
"true threat" or the jury's finding that his statements placed Officers Sherman and
Gladson under a fear that a reasonable justice participant would have
experienced under all the circumstances present in this case. We disagree.
1
Overly first asserts that the State failed to present a constitutionally
sufficient quantum of evidence that his statements constituted a "true threat."
In a criminal prosecution, "the Due Process Clause protects the accused
against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is charged." In re Winship, 397
U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). On an appeal from a
criminal conviction, due process further guarantees a defendant the right to
challenge the sufficiency of the evidence proffered by the government. Jackson
v. Virginia, 443 U.S. 307, 314-16, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). A
reviewing court conducting an evidentiary sufficiency inquiry must consider
"whether, after viewing the evidence in the light most favorable to the
7
No. 76033-5-1/8
prosecution, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." Jackson, 443 U.S. at 319.
"A challenge to the sufficiency of the evidence admits the truth of the
State's evidence and all reasonable inferences from that evidence." State v.
Boyle, 183 Wn. App. 1, 6-7, 335 P.3d 954 (2014) (citing State v. Salinas, 119
Wn.2d 192, 201, 829 P.2d 1068 (1992)), review denied, 184 Wn.2d 1002 (2015).
"We defer to the trier of fact on issues of credibility or persuasiveness of the
evidence." Boyle, 183 Wn. App. at 7 (citing State v. Johnston, 156 Wn.2d 355,
365-66, 127 P.3d 707 (2006)).
In addition to generally applicable sufficiency principles, because of the
constitutional implications inherent in our review of a "true threat," we conduct a
limited independent review of the facts crucial to the true threat inquiry. State v.
Kohonen, 192 Wn. App. 567, 577, 370 P.3d 16 (2016).
"[T]he First Amendment demands more than application of our
usual standard of review for sufficiency of the evidence. [State
v. ]Kilburn, 151 Wn.2d [36,] 48-49[, 84 P.3d 1215 (2004)]. Instead,
we must independently examine the whole record to ensure that
the judgment does not constitute a forbidden intrusion into the field
of free expression. Kilburn, 151 Wn.2d at 50. We are required to
independently review only crucial facts, that is, those facts so
intermingled with the legal question that it is necessary to analyze
them in order to pass on the constitutional question. Kilburn, 151
Wn.2d at 50-51. In doing so, we may review evidence in the record
not considered by the lower court in deciding the constitutional
question. Kilburn, 151 Wn.2d at 51. However, our review does not
extend to factual determinations such as witness credibility. State
v. Johnston, 156 Wn.2d 355, 365-66, 127 P.3d 707 (2006)."
Kohonen, 192 Wn. App. at 577 (alteration in original) (quoting State v. Locke,
175 Wn. App. 779, 790-91, 307 P.3d 771 (2013)).
8
No. 76033-5-1/9
To support a conviction for harassment of a criminal justice participant, the
State must establish that a threat to commit bodily harm was made. RCW
9A.46.020. Thus, because RCW 9A.46.020 criminalizes pure speech, the State
must also prove that the alleged threat was a "true threat." Kohonen, 192 Wn.
App. at 575 (citing Kilburn, 151 Wn.2d at 54).2
The test for determining a "true threat" is an objective test
that focuses on the speaker." Kilburn, 151 Wn.2d at 54. The
question is whether a reasonable person in the speaker's position
would foresee that the threat would be interpreted as a serious
expression of intention to inflict the harm threatened. State v.
Allen, 176 Wn.2d 611, 626, 294 P.3d 679 (2013); accord Kilburn,
151 Wn.2d at 46.
A true threat is a serious threat, not one said in
jest, idle talk, or political argument. Kilburn, 151 Wn.2d
at 43 (citing United States v. Howell, 719 F.2d 1258,
1260 (5th Cir.1983)). Stated another way,
communications that "bear the wording of threats but
which are in fact merely jokes, idle talk, or hyperbole"
are not true threats. State v. Schaler, 169 Wn.2d 274,
283, 236 P.3d 858 (2010). The nature of a threat
"depends on all the facts and circumstances, and it is not
proper to limit the inquiry to a literal translation of the
words spoken." State v. C.G., 150 Wn.2d 604, 611, 80
P.3d 594 (2003). Statements may "connote something
they do not literally say. . . ." Planned Parenthood of
Columbia/Willamette, Inc. v. Am. Coal. of Life Activists,
290 F.3d 1058, 1085 (9th Cir. 2002). Consistently with
this recognition, our court has held that "[w]hether a
statement is a true threat or a joke is determined in light
of the entire context" and that a person can indirectly
threaten to harm or kill another. Kilburn, 151 Wn.2d at
46, 48. Further, "[t]he speaker of a 'true threat' need not
actually intend to carry it out. It is enough that a
reasonable speaker would foresee that the threat would
2 The State's burden concerning proof of "true threats" arises from "the danger that the
criminal statute will be used to criminalize pure speech and impinge on First Amendment rights.
True threats are not protected speech because of the 'fear of harm aroused in the person
threatened and the disruption that may occur as a result of that fear." Kohonen, 192 Wn. App. at
575 (quoting Kilburn, 151 Wn.2d at 46).
-9
No. 76033-5-1/10
be considered serious." Schaler, 169 Wn.2d at 283
(citation omitted).
Kohonen, 192 Wn. App. at 576-77 (alterations in original) (quoting Locke, 175
Wn. App. at 790).
Thus, the question presented is whether sufficient evidence supports the
conclusion that a reasonable person in Overly's position would have foreseen
that his statements would be interpreted as a serious expression of an intent to
inflict the harm threatened. A sufficient quantum of such evidence was adduced.
First, many of Overly's statements reflected an explicit expression of an
intent to do harm, including that he was going to purchase a firearm and shoot 20
people at the VA and that he was going to blow up a building, not caring if it "took
out an entire block."
Other statements by Overly bolstered the seriousness of his threats.
Overly implied that he had dedicated a substantial quantity of consideration
toward doing harm by emphasizing that he had a plan written down in two
separate locations, that his son would be proud of him when he was old enough
to understand, and that the media would cover the incident. Further, Overly's
statements implied a certain immediacy behind them by indicating to Dr. Hickey
that he was not going to return (after quitting his therapy session 20 minutes
early), that he was going to pursue "his solution," and that he was going to buy a
gun the following day once he received his paycheck, and to Tangen that he was
not coming back to work, that "it was coming to an end," that he was "tired of
dealing with everyone," and that he could go and buy a gun that day.
-10-
No. 76033-5-1/11
In addition, Overly's demeanor during his therapy session and telephone
calls supported the seriousness of his expression of an intent to do harm. His
tone was described as angry and agitated by Dr. Hickey, Lieutenant Hadnot,
Tangen, Officer Gladson, and Officer Sherman. Two individuals who knew
Overly beforehand, Tangen and Officer Gladson, had never before heard him
speak in such a manner or make such violent suggestions. Indeed, prior to this
incident, both Tangen and Gladson thought Overly was a pleasant and cordial
coworker. Additionally, by expressing that he had not taken his medication,
Overly's statements took on an added undercurrent of danger as to what he was
capable of doing.
Furthermore, other statements by Overly, when taken in context,
conveyed that he was seriously expressing a desire to cause harm to the VA
police. Overly was clearly frustrated by the response of the VA police to the
February incident, indicating that he felt "legally raped" by their failure to arrest
the elderly couple who he felt had wronged him. This frustration was repeatedly
referenced during his therapy session with Dr. Hickey and his telephone calls
with Lieutenant Hadnot and Tangen. This frustration was also specific,
identifying Detective Rambayon in particular as a miscreant in Overly's view.
In this way, many of Overly's statements implied an intent to commit an
act of violence and could reasonably be understood to express an intent to harm
the VA police and, as collateral damage, other VA employees. By conveying that
he was going "strap up," "exercise his Second Amendment right," "start with the
building where Detective Rambayon works," and commit "suicide by police," and
No. 76033-5-1/12
by stating that the no-weapons sign outside of the VA was a "joke," Overly's
statements could reasonably be interpreted to express an intent to commit harm
to the VA police and other VA employees.
Taken together, Overly's statements explicitly and implicitly conveyed his
anger, frustration, and, ultimately, his expression of an intent to cause bodily
injury to the VA police. A reasonable person in Overly's position would foresee
that these statements would be treated as a serious expression of his intention to
commit the harm that he threatened. Thus, sufficient evidence was adduced to
support the determination that Overly's statements constituted a "true threat."
2
Overly next contends that the State failed to present sufficient evidence to
support the jury's determination that his statements placed Officers Sherman and
Gladson under a fear that a reasonable justice participant would have
experienced under all the circumstances.
RCW 9A.46.020 sets forth the crime of harassment:
(1) A person is guilty of harassment if:
(a) Without lawful authority, the person knowingly threatens:
(i) To cause bodily injury immediately or in the future to the person
threatened or to any other person . . .
. . . and
(b) The person by words or conduct places the person
threatened in reasonable fear that the threat will be carried out.
(2)
(b) A person who harasses another is guilty of a class C
felony if any of the following apply: . . . (iii) the person harasses a
criminal justice participant who is performing his or her official
duties at the time the threat is made. . . . For the purposes of
(b)(iii) . . . the fear from the threat must be a fear that a reasonable
criminal justice participant would have under all the circumstances.
Threatening words do not constitute harassment if it is apparent to
the criminal justice participant that the person does not have the
-12-
No. 76033-5-1/13
present and future ability to carry out the threat.
The evidence proffered by the State was sufficient to support the
determination that the officers experienced fear of a type that a reasonable
criminal justice participant would have had under all of the circumstances present
in this case. Overly's statements made during the telephone call to Tangen, in
which Officers Gladson and Sherman participated, provided sufficient proof on
this question. Officer Gladson, who had known Overly beforehand as a pleasant
person, had never heard him speak in such a violent manner. Based on Overly's
demeanor, Officer Gladson's experience as a police officer, and what he heard
Overly say, he was concerned that Overly would actually carry out the threats.
After listening to Overly speak for half an hour, Officer Sherman—based
on Overly's tone and the seriousness with which he discussed his plan to do
harm—shared Officer Gladson's concern:
He seemed like he had -- he was -- he had a plan. He was very
methodical about it, because he was able to stay calm and not --
not raise his voice to the point where 1 wasn't unable to understand
him or -- it was very clear what he was saying.
Thus, sufficient evidence was adduced that the officers were placed under a fear
of a type experienced by a reasonable criminal justice participant that Overly
would carry out his threat of violence against them.
The State presented sufficient evidence to support the conviction for
harassment of a criminal justice participant.
-13-
No. 76033-5-1/14
B
Overly next asserts that he was denied effective assistance of counsel
because his attorneys declined to pursue a diminished capacity defense on his
behalf. We disagree.
In order to prevail on a claim of ineffective assistance of counsel, a
defendant must show both deficient performance and resulting prejudice.
Strickland v. Washinqton, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Failure to make the necessary showing on either prong of the test
defeats the claim. Strickland, 466 U.S. at 697.
Counsel's performance is deficient when it falls below an objective
standard of reasonableness. State v. Stenson, 132 Wn.2d 668, 705, 940 P.2d
1239 (1997). Our scrutiny of defense counsel's performance is highly deferential
and employs a strong presumption of reasonableness. Strickland, 466 U.S. at
689; State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995). "To
rebut this presumption, the defendant bears the burden of establishing the
absence of any 'conceivable legitimate tactic explaining counsel's performance."
State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011) (quoting State v.
Reichenbach, 153 Wn.2d 126, 130, 101 P.3d 80 (2004)).
Defense counsel must investigate
all reasonable lines of defense, [Kimmelman v. Morrison, 477 U.S.
365, 384, 106 S. Ct. 2574, 91 L. Ed. 2d 305 (1986)] especially "the
defendant's 'most important defense." [Bram v. Galaza, 242 F.3d
1082, 1088 (9th Cir. 2001) (quoting Sanders v. RateIle, 21 F.3d
1446, 1457 (9th Cir. 1994)), amended by 253 F.3d 1150 (9th Cir.
2001)1 . . . Once counsel reasonably selects a defense, however,
"it is not deficient performance to fail to pursue alternative
defenses." [Rios v. Rocha, 299 F.3d 796, 807 (9th Cir. 2002)].
- 14 -
No. 76033-5-1/15
In re Pers. Restraint of Davis, 152 Wn.2d 647, 721-22, 101 P.3d 1 (2004)
(footnotes omitted). It is a legitimate trial tactic for defense counsel, when
defending against multiple charges, to focus on acquittal of the more serious of
the charges. See, e.g., State v. Silva, 106 Wn. App. 586, 596, 24 P.3d 477
(2001) (counsel admitting, during closing argument, that defendant probably
committed crimes of attempting to elude a police vehicle and forgery and
focusing on acquittal of second degree assault and felony hit and run); State v.
Hermann, 138 Wn. App. 596, 605-06, 158 P.3d 96(2007) (counsel admitting,
during closing argument, that defendant likely committed crime of first degree
theft and focusing on acquittal of two counts of first degree trafficking in stolen
property).
Overly was charged with two crimes, threats to bomb or injure property, a
class B felony, and harassment of a criminal justice participant, a class C felony.
Faced with these charges, Overly's attorneys elected a defense of general
denial, rather than both general denial and diminished capacity.
Raising a defense of general denial to both charges was a legitimate trial
strategy. We can conceive that Overly's attorneys contemplated that they had a
strong general denial defense to the threat to bomb charge. The jury's decision
to acquit Overly supports this analysis. This was the most serious of the two
charges. We can also conceive that the attorneys also believed that their
general denial defense was strong as to the harassment charge (the fact that the
primary claim on appeal is that insufficient evidence was adduced on that charge
supports this inference). We can further conceive that counsel thought it a bad
- 15-
No. 76033-5-1/16
tactic to defend in the alternative—asserting both general denial and diminished
capacity on both charges. We can conceive that defense counsel may have
worried that this would weaken their defense on the class B felony count. Finally,
we can conceive that defense counsel may have considered it a poor tactic to
plead general denial on the class B felony count while pleading diminished
capacity on the class C felony count. Based on the jury's acquittal of Overly of
the crime of threats to bomb or injure property, the tactics employed by defense
counsel were largely successful. Overly has not shown that his attorneys'
decision not to pursue a diminished capacity defense was other than a
conceivable trial tactic. Thus, he fails to establish a ground for appellate relief.
Overly next contends that the trial court, in separate rulings, erroneously
deprived him of his right to proceed pro se both at trial and at sentencing. We
disagree.
We review the denial of a request to proceed pro se for abuse of
discretion. State v. Madsen, 168 Wn.2d 496, 504, 229 P.3d 714 (2010) (citing
State v. Hemenwav, 122 Wn. App. 787, 792, 95 P.3d 408 (2004)). "Discretion is
abused if a decision is manifestly unreasonable or 'rests on facts unsupported in
the record or was reached by applying the wrong legal standard." Madsen, 168
Wn.2d at 504 (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638
(2003)).
A defendant in a criminal prosecution has a right to the assistance of
counsel. U.S. CONST. amend. VI; Wash. CONST. art. I, § 22 (amend.10). This
- 16 -
No. 76033-5-1/17
right to counsel may be waived, but such a waiver must be "knowing, voluntary,
and intelligent." City of Bellevue v. Acrey, 103 Wn.2d 203, 208-09, 691 P.2d 957
(1984) (citing Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d
530 (1972)). "If counsel is properly waived, a criminal defendant has a right to
self-representation." Acrev, 103 Wn.2d at 209 (citing Wash. CONST. art. I, § 22
(amend.10); U.S. CONST. amend. VI; Faretta v. California, 422 U.S. 806, 95 S.
Ct. 2525, 45 L. Ed. 2d 562 (1975)).
The right to proceed pro se, however, is not absolute. Madsen, 168
Wn.2d at 504 (citing State v. Woods, 143 Wn.2d 561, 586, 23 P.3d 1046 (2001)).
"When a defendant requests pro se status, the trial court must determine whether
the request is unequivocal and timely." Madsen, 168 Wn.2d at 504 (citing
Stenson, 132 Wn.2d at 737). If the request is unequivocal and timely, the court
must then determine if the request is voluntary, knowing, and intelligent.
Madsen, 168 Wn.2d at 504 (citing Faretta, 422 U.S. at 835; State v. Stegall, 124
Wn.2d 719, 881 P.2d 979 (1994)). Courts are required to "indulge in every
reasonable presumption' against a defendant's waiver of his or her right to
counsel." In re Det. of Turav, 139 Wn.2d 379, 396, 986 P.2d 790 (1999) (quoting
Brewer v. Williams, 430 U.S. 387, 404, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977)).
"The trial court's discretion lies along a continuum that corresponds with
the timeliness of the request to proceed pro se." State v. Breedlove, 79 Wn. App.
101, 107, 900 P.2d 586 (1995). If a request is "made during the trial or hearing,
the right to proceed pro se rests largely in the informed discretion of the trial
court." State v. Fritz, 21 Wn. App. 354, 361, 585 P.2d 173 (1978)).
- 17-
No. 76033-5-1/18
We review each motion to proceed pro se independently to determine
whether the requirements for pro se status were met. Madsen, 168 Wn.2d at
505.
1
Overly first requested to proceed pro se on the first day of trial, after the
jury had been empaneled and jeopardy attached, requesting to represent himself
at trial. During his discussion with the trial court, however, Overly clarified that he
was actually requesting additional "personal time with my attorneys prior to court
every day so we can discuss -- so I know what we're going to do." The trial court
granted Overly's request for additional time with his counsel, requiring that one of
the two attorneys representing Overly meet with him every day prior to trial. At
the end of the discussion, the court inquired: "So you're withdrawing your motion
to represent yourself?" to which Overly replied, "Correct. I just want contact. If I
get that, that's fine."
Overly affirmatively withdrew his request to proceed pro se at trial. This
was obviously not an unequivocal request to proceed pro se. There was no trial
court error.
2
Overly renewed his request to proceed pro se shortly after the jury verdict,
requesting to represent himself at sentencing. The trial court did not then grant
his request. However, when Overly renewed this request at the start of the
sentencing hearing, the trial court granted him pro se status. Overly then
represented himself at the sentencing hearing.
-18-
No. 76033-5-1/19
Because Overly's request to represent himself at sentencing was granted,
his contention that the trial court erred by denying his request fails. There was
no error.
D
Overly next contends that the sentencing court erred by assessing the
mandatory $100 DNA fee and $200 criminal filing fee against him without first
determining whether he had the ability to pay such fees pursuant to RCW
9.94A.777.3 ,
After being allowed to proceed pro se, Overly represented himself at his
sentencing hearing. He did not request that the sentencing court determine that
he suffers from a mental health condition pursuant to RCW 9.94A.777. Because
he failed to raise this issue at his sentencing hearing, Overly waived any claim of
error in this regard. Pro se litigants are held to the same standards as attorneys.
State v. Bebb, 108 Wn.2d 515, 524, 740 P.2d 829 (1987). Overly's decision to
proceed pro se does not entitle him to a special dispensation from normal
procedural requirements.4
3 "Before imposing any legal financial obligations upon a defendant who suffers from a
mental health condition, other than restitution or the victim penalty assessment under RCW
7.68.035, a judge must first determine that the defendant, under the terms of this section, has the
means to pay such additional sums." RCW 9.94A.777.
4 Overly submitted a pro se statement of additional grounds in which he advances
several arguments. None call for appellate relief. He claims that the trial court improperly
deprived him of his right to proceed pro se and that he received ineffective assistance of counsel
by his attorneys' failing to bring a diminished capacity defense on his behalf. These claims have
been discussed herein. No further discussion is warranted.
Overly next argues that his counsel was ineffective for not sufficiently communicating with
him prior to trial. As mentioned herein, Overly raised this issue before the trial court and the trial
court granted him additional time with his attorneys prior to each day of trial. Having received the
remedy he requested, Overly cannot now assign error to this matter.
Overly next claims that he was denied his Sixth Amendment right to confront witnesses
against him. This claim, along with his remaining claims, is largely incoherent, failing to
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No. 76033-5-1/20
Affirmed.
We concur:
?[ V D A1/61
e/N3(
adequately inform this court of the nature and occurrence of the alleged errors. RAP 10.10(c);
State v. Alvarado, 164 Wn.2d 556, 569, 192 P.3d 345 (2008).
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State Of Washington v. Marcus Adam Overly
Combined Opinion