                                                                         COURT OFF1L.E0
                                                                          STATE OFAPPEALS DIV     •
                                                                                   W
                                                                                    ASHINGTON
                                                                         2018 NOV -5
                                                                                       Ati 9:45


       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                No. 76806-9-1
                              Respondent,
                                                DIVISION ONE
                     V.
                                                PUBLISHED OPINION
 KEITH ADAIR DAVIS,

                              Appellant.        FILED: November 5, 2018


       CHUN, J. — Defendant appeals a judgment convicting him of two counts of

possession of a stolen vehicle and one count of possession of a controlled

substance. He assigns error to the trial court's decisions to (1) deny his motions

for standby counsel,(2) remove him from the courtroom during trial, and (3)

proceed with trial in his absence while he was self-represented.

       The trial court did not abuse its discretion in denying Davis's requests for

standby counsel. Nor did the trial court abuse its discretion in removing Davis

from the courtroom during trial, after it warned him, due to his disruptive

behavior. The court, however, allowed two material witnesses to testify in

Davis's absence, with an empty defense table, and it did not afford him an

opportunity to cross-examine either witness. For the reasons set forth below, we

conclude this decision violated Davis's Sixth Amendment right to representation.

       We affirm Davis's criminal judgment and sentence as to count 1

(possession of stolen vehicle). However, as the portion of the trial held in Davis's
No. 76806-9-1/2


absence included testimony to support counts 2(possession of a stolen vehicle)

and 3(possession of a controlled substance), we reverse as to those counts and

remand.
                                        1.
                                   BACKGROUND

      On January 23, 2014, Sergeant Timothy Gillette of the King County

Sheriff's Office arrested Davis for possession of a stolen Hyundai vehicle.

      Two and a half weeks later, on February 11,2014, Officer Danny Graf of

the Federal Way Police Department observed a Buick parked near a park-and-

ride and saw Davis standing outside the car, making furtive movements. As

Davis got into the car to drive away, Officer Graf recorded the license plate. The

owner had reported the vehicle as stolen. Officer Graf then initiated a traffic stop

and arrested Davis for possession of a stolen vehicle -- the Buick. Officer Justin

Antholt, also of the Federal Way Police Department, arrived as backup and

conducted a search incident to arrest. He discovered 2.18 grams of crack

cocaine in Davis's shirt pocket.

       On May 19, 2014, the State charged Davis with two counts of possession

of a stolen vehicle, and one count of possession of a controlled substance. On

February 6, 2015, Davis moved to proceed without legal counsel. The court

granted the motion. During the trial court's colloquy to assure a proper waiver,

Davis requested standby counsel. The court warned Davis it would likely not

grant such a request, but told him he could file a motion.




                                         2
No. 76806-9-1/3


        Davis moved for standby counsel at a case setting hearing on January 28,

2016.1 The court explained to Davis that he did not have a right to standby

counsel and ordering such counsel could raise ethical and practical concerns.

Davis then elaborated on his reasons for requesting standby counsel, namely

access to office equipment, and unfamiliarity with the judicial process. The trial

court denied Davis's motion.

        At another case setting hearing on February 11, 2016, Davis again moved

for standby counsel. Davis stated he needed standby counsel because "there

aren't any resources available and they're limited to my health2 as well. I may

not be able to proceed." The trial court stated Washington law does not favor

standby counsel. The court denied the motion.

        On April 1, 2016, Davis renewed his motion for standby counsel. Citing

State v. Romero, 95 Wn. App. 323, 975 P.2d 564 (1999), the trial court reiterated

to Davis that he did not have a right to standby counsel. Davis claimed an

"implied right" to standby counsel in the event he could not continue representing

himself. The court declined to order standby counsel, and stated Davis must

choose between having counsel and representing himself. Davis chose to

proceed without a lawyer.

        Davis made another motion for standby counsel on May 10, 2016. The

trial court asked if Davis's circumstances had changed since his last motion for


        1The case was significantly delayed because the trial court originally transferred it to Drug
Court. Additionally, during Davis's release in this matter, he was arrested in Thurston County,
charged with assault, and convicted there.
        2 Davis suffers from several medical conditions, including active multiple sclerosis, a
ruptured hernia, and an obstructed bowel. Davis used a wheelchair during the trial.


                                                 3
No. 76806-9-1/4


standby counsel. In response, Davis referenced "doctor appointments" and

being a "layperson." Seeing no change in circumstances, the trial court denied

Davis's motion.

       On February 27, 2017, the parties appeared for pretrial hearings. Davis

moved for a continuance. The trial court denied the request, as trial was set to

begin the next day and the case had already been significantly delayed. 3 Davis

then stated he wanted to "withdraw" as his counsel and that the court could go to

trial without him. The court attempted to clarify Davis's statements and asked

him if he was requesting counsel when he said he wanted to withdraw, but Davis

just repeated he would not come to trial and cited health issues. The trial court

denied Davis's motion to withdraw as counsel because it would unnecessarily

delay trial. The court also declined to appoint standby counsel.

       Trial started the next day and Davis moved for standby counsel and a

continuance. The court denied both motions because it had already ruled on

them. The case proceeded to trial.

       After a CrR 3.5 hearing, Davis claimed he could not continue with the trial

because of excessive pain. Davis again moved for a continuance and the trial

court told him it had already denied the motion. Davis stated he was "unable to

continue as [his] own counsel." The court reminded Davis it had denied that

motion as well. In an attempt to advise Davis of what was expected at trial, the

court warned Davis it would remove him if he acted disruptively. Davis said he



        3 The court had already continued the case considerably to allow Davis to hire an
investigator and prepare for trial.


                                               4
No. 76806-9-1/5


did not care and that the court could hold trial without him.

       Davis appeared for trial on March 7,2017. In the middle of the afternoon,

during the State's examination of Officer Antholt, the court excused Davis for a

restroom break. When Davis returned, he noticed the water had been removed

from his table. He began banging his fists on the table, screaming he needed

water. The court told Davis the water was removed because Davis took

restroom breaks every twenty-five minutes. The court noted Davis had

consumed twice as much water as the day before and that the proceeding would

soon adjourn for the day. The court tried to proceed with trial. The State

attempted to continue its examination of Officer Antholt, but Davis repeatedly

interrupted to make comments about the water. The trial court temporarily retired

the jury and the following exchange took place:

          THE COURT: I'm going to take the jury back now.
          THE DEFENDANT: Thank you. You can hold your trial without
       me. How's that?
          THE COURT: I'm going to do that.
          THE DEFENDANT: Do that. Thank you. Thank you. Thank
       you. Just go ahead with your kangaroo court and your ridiculous
       charges, and your little games and that you do that. Load
       somebody else up in the prison system. Get your next victim lined
       up. I'm done with it. I could care less.
          THE COURT: All right. Wait a minute. Mr. Davis, you have
       one more--
           THE DEFENDANT: What do you want? I need water. I'm
       done talking. What's there to talk about? You're playing a game.
       I'm done playing your games.
           THE COURT: All right. The record's going to reflect--
           THE DEFENDANT: All right. The record this -- all right, for the
       record this. I said that, I mean that. I'm not going to continue to be
       a gentleman and polite. I could care less what you say. I'm done
       with it.


                                          5
No. 76806-9-1/6

          THE COURT: I'm going to find that you are voluntarily
      absenting yourself--
          THE DEFENDANT: Whatever. Do whatever you want.
          THE COURT: --from these proceedings.
          THE DEFENDANT: You're going to deny me water when 1
      need water, whatever.
          THE COURT: I need him present so I can make the record, so
      don't take him out yet.
          THE DEFENDANT: I don't care about your record.
          THE COURT: Well, I do.
          THE DEFENDANT: I don't. And I know your buddies up at the
      appellate court ain't gonna give a shit either, so fuck the record.
          THE COURT: So the record should reflect that Mr. Davis has
      been given twice as much water as he had yesterday and,
      therefore, he's--
          THE DEFENDANT: So what?
          THE COURT: Had to use the restroom twice as much.
          THE DEFENDANT: I had to use the restroom because I had a
      digestive dysfunction. 1 piss a lot. Ask the god damn — the officers.
      1 piss.
          THE COURT: Can you keep your voice down?
          THE DEFENDANT: No, I'm not. Freedom of expression. You
      don't want to listen then shut your ears.
          THE COURT: So at about -- ten after 3:00 he was brought back
      here and I've explained to him that--
          THE DEFENDANT: We gonna do this, we gonna play the
      kangaroo game. I don't care, either. You can keep playing, play
      with yourself. Stop playing with me. Who cares?
          THE COURT: This is not about the--
           THE DEFENDANT: I don't care.
           THE COURT: This is about you disrupting the trial, delaying the
      trial.
           THE DEFENDANT: Doesn't matter what it's about. What it's
      really about, nothing.
           THE COURT: Screaming at the top of his lungs, the jury--
           THE DEFENDANT: And I'm going to continue to scream.
      Where's my fucking water?
          (Defendant screaming simultaneously with court)
           THE COURT: I need to proceed with the trial, and I am finding
      that he is voluntarily absenting himself from the rest of these
      proceedings under State v. Garza, G-A-R-Z-A, and the record


                                       6
No. 76806-9-1/7

       should reflect that he continues to speak on top of his lungs,
       swearing, accusing me of all kinds of things.
          THE DEFENDANT: You're being an asshole, and I can be one,
       too.
          THE COURT: You're now removed from the court.
          THE DEFENDANT: Good. And fuck you very much, asshole.
       Fuck this kangaroo court shit.
       At this point, it was after three o'clock in the afternoon. In Davis's

absence, the State continued questioning Officer Antholt, who testified as to

finding crack cocaine in Davis's pocket. The State then examined Officer Graf,

who had identified the stolen Buick, initiated the traffic stop, and arrested Davis.

Officer Graf also testified as to Davis's alleged statements about how he had

obtained the Buick. The court did not give Davis an opportunity to cross-examine

either officer.

       Davis returned to court the next morning. The trial court noted Davis's

outburst on March 7 amounted to one of the worst it had seen. The court again

warned Davis it would remove him if he raised his voice or used profanity. In its

findings, the court indicated Davis's outburst also disrupted trial in the courtroom

down the hall. The court noted Davis "did not have any further behavior issues of

significance," and he attended the remainder of the trial.

                                     ANALYSIS

       A.         Standby Counsel

        While Davis concedes he lacks a constitutional right to standby counsel,

he claims the trial court abused its discretion by categorically denying his

requests for such counsel. He mischaracterizes the record. The trial court

properly considered Davis's requests for standby counsel.


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No. 76806-9-1/8


      An appellate court reviews a decision to deny standby counsel for an

abuse of discretion. State v. DeWeese, 117 Wn.2d 369, 379, 816 P.2d 1(1991).

A trial court abuses its discretion when its "decision is manifestly unreasonable,

or is exercised on untenable grounds, or for untenable reasons." State v. Garza,

150 Wn.2d 360, 366, 77 P.3d 347 (2003).

       Defendants may waive their Sixth Amendment right to assistance of

counsel and decide to represent themselves at trial. Romero, 95 Wn. App. at

326. If a defendant chooses self-representation, he or she does not have a right

to standby counsel. DeWeese, 117 Wn.2d at 379. "The right to self-

representation in a criminal matter... is an all-or-nothing process." Romero,95

Wn. App. at 326.

       Nevertheless, a defendant may request standby counsel, and the trial

court must exercise its discretion in considering the request. See State v.

Stearman, 187 Wn. App. 257, 265, 348 P.3d 394. A court abuses its discretion

when it fails to exercise its discretion. State v. Flieger, 91 Wn. App. 236, 242,

955 P.2d 872(1998).

       Davis contends that, because two judges told him obtaining standby

counsel was unlikely, no judge meaningfully considered his requests for standby

counsel. The record does not support this argument.

       The court heard Davis's motions for standby counsel in at least six

separate hearings before five different judges. Initially, the trial court engaged in

a colloquy with Davis to ensure he made a knowing and voluntary waiver of his

right to counsel. Indeed, Davis does not challenge the validity of his waiver. The


                                          8
No. 76806-9-1/9


court told Davis he could submit a motion for standby counsel, but warned it

would not likely grant it.

       At the next hearing, Davis presented his reasons for requesting standby

counsel. He referenced issues such as lack of access to office equipment, and

unfamiliarity with legal processes. The trial court explained at some length its

view as to why Washington courts disfavor standby counsel. The court also told

Davis that, though he could request standby counsel, such requests were rarely

granted. The record shows the court considered his motion and denied it

because, in its view, the appointment of standby counsel could give rise to ethical

and practical concerns, and Davis failed to demonstrate his need for standby

counsel overcame these concerns.

       Davis moved for standby counsel several more times. Each time the trial

court allowed him to be heard. The court also explained to Davis the reasons it

denied his requests. The court afforded Davis opportunities to argue whether his

circumstances had changed since the court denied his original motion.

Concluding Davis's responses did not justify granting standby counsel, the court

denied his motions.

       The court considered each of Davis's numerous requests for standby

counsel. Nothing in the record suggests the court believed it did not need to

exercise its discretion. The record also does not suggest the court refused to

exercise its discretion in denying the motions. The trial court adequately

considered Davis's requests for standby counsel.




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No. 76806-9-1/10


      B.     Voluntary Absence

      Davis asserts the trial court removed him from trial for disruptive behavior.

The State counters Davis voluntarily absented himself. We agree with Davis.

      Appellate courts review a trial court's finding of voluntary absence for an

abuse of discretion. Garza, 150 Wn.2d at 365-66.

      The Sixth Amendment grants defendants the right to be present at their

trial. State v. Thomson, 123 Wn.2d 877, 880, 872 P.2d 1097(1994). However, a

defendant may voluntarily absent himself or herself and thereby waive the right to

be present. Thomson, 123 Wn.2d at 881. Notably, the court should "indulge[]

every reasonable presumption against waiver." Garza, 150 Wn.2d at 367.

      The State argues Davis's statement,"You can hold your trial without me,"

indicates he voluntarily absented himself. Washington case law has not yet

addressed whether and how a defendant may voluntary absent himself or herself

by requesting to leave the courtroom. Our voluntary absence cases consider

only scenarios in which the defendant either does not appear for court or does

not return after removal.

       Under Washington law, "the court only need answer one question:

whether the defendant's absence is voluntary." Thomson, 123 Wn.2d at 881.

When deciding whether a defendant's absence qualifies as voluntary, courts

consider the totality of the circumstances. Thomson, 123 Wn.2d at 881.

Specifically, appellate courts look to whether the trial court "(1)[made]sufficient

inquiry into the circumstances of a defendant's disappearance to justify a finding

whether the absence was voluntary,(2)[made] a preliminary finding of


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No. 76806-9-1/11


voluntariness, when justified, and (3)[gave] the defendant an adequate

opportunity to explain his absence when he is returned to custody." Garza, 150

Wn.2d at 367. These factors are most applicable to situations where a defendant

does not appear for court or does not return to court after a removal. As such,

they are not readily applicable to the facts in this case. In particular, the first and

third factors assume the defendant failed to appear without first explaining his or

her absence to the court.

       Given the lack of Washington case law on the question, we turn to

decisions from other jurisdictions for guidance. The facts here resemble those of

State v. Menefee, an Oregon case. In Menefee a self-represented defendant

made improper arguments during his opening statement and refused to confine

the scope of his presentation. 268 Or. App. 154, 160-64, 341 P.3d 229(2014).

When the defendant began arguing with the court, it warned the defendant it

would remove him if he did not behave properly. Menefee, 268 Or. App. at 163-

68. When the defendant continued his unruly behavior, the court stated the

defendant intentionally undermined the trial and concluded this constituted a

voluntary absence. Menefee, 268 Or. App. at 166-68. Though the trial court

characterized the defendant's departure as a voluntary absence, the Oregon

Appellate Court concluded the record showed the trial court removed the

defendant for misconduct. Menefee, 268 Or. App. at 182.

       Similarly, here, the trial court found Davis intentionally undermined the

trial, and stated he voluntarily absented himself and "was removed from the




                                           11
No. 76806-9-1/12


courtroom due to his behavior." Although Davis made the statement "You can

hold your trial without me," he made it in an irate state, claiming he needed water

for medical reasons. As mentioned above, Washington law requires the court

indulge every reasonable presumption against waiver, which must be knowing

and voluntary to be effective. Neither his statements nor his misconduct

amounted to his voluntarily absenting himself. Thus, his absence from trial is

more properly categorized as one due to removal rather than waiver. We next

examine whether the court abused its discretion in removing Davis.

       C.      Removal

       Davis contends the trial court erred by removing him from the courtroom

without first considering less severe alternatives. The State argues the trial court

was not required to do so. We agree with the State.

       Trial judges facing disruptive defendants must be given sufficient

discretion to maintain order in their court. DeWeese, 117 Wn.2d at 380. An

appellate court reviews a trial court's decision to remove a defendant for an

abuse of discretion. DeWeese, 117 Wn.2d at 380. A trial court abuses its

discretion when its "decision is manifestly unreasonable, or is exercised on

untenable reasons, or for untenable reasons." Garza, 150 Wn.2d at 366.

       The Washington Supreme Court listed several guidelines to aid courts in

deciding whether to remove a defendant. State v. Chapple, 145 Wn.2d 310, 320,

36 P.3d 576 (2001). First, a trial court should warn the defendant that continued



       4 The trial court did so in its May 26, 2017 Findings of Fact and Conclusions of Law
Regarding Defendant Voluntarily Absenting Himself from Trial Due to His Disruptive Behavior.


                                              12
No. 76806-9-1/13


disruptions could lead to removal. Chapple, 145 Wn.2d at 320. Second, the

defendant's obstreperous behavior must be severe enough to justify removal.

Chapple, 145 Wn.2d at 320. Third, the Court stated a preference for the least

severe alternative that will prevent interferences with the trial. Chapple, 145

Wn.2d at 320. Finally, if the defendant assures the court his or her conduct will

improve, he or she must be allowed to reclaim the right to be present. Chapple,

145 Wn.2d at 320. These instructions "are not meant to be constraints on trial

court discretion, but rather to be relative to the exercise of that discretion such

that the defendant will be afforded a fair trial while maintaining the safety and

decorum of the proceedings." Chapple, 145 Wn.2d at 320.

       Davis bases his challenge on only the third factor, and argues the court

erred in completely removing him from trial without considering less severe

alternatives. Davis says that, because the record does not show he behaved

severely enough to warrant complete removal, the court should have instead

allowed him to watch the proceedings from a video monitor in another room,

allowed him to return to the trial sooner than the following day, or provided him

with transcripts of the proceedings for his closing argument.

       Here, the trial court warned Davis he risked removal if he continued to

interrupt the proceedings. Nevertheless, Davis continued to act disruptively and

disregard court orders. The court tolerated much of Davis's inappropriate

behavior and finally removed him following an outburst in which Davis repeatedly

screamed, banged on the table, and used profanity in the courtroom. Davis




                                          13
No. 76806-9-1/14


yelled so loudly that proceedings in the courtroom across the hall recessed.

Such conduct warrants removal from the courtroom.

        When considering the least severe alternative, the trial court can best

assess both the technological limitations of its courthouse and the defendant's

impending threat to disrupt the proceedings. Chapple, 145 Wn.2d at 324. Here,

the record does not show the court considered having Davis attend trial in some

other way, such as through video monitoring. But this is not mandated. Because

there exists only a preference, as opposed to a requirement, for trial courts to

use the least severe means, nothing in the record shows the trial court did not act

within its discretion when removing Davis from the courtroom.

        D.      Right to Representation

        Davis maintains, even if the trial court properly removed him, it violated his

Sixth Amendment right to representation by allowing the State to examine two of

its witnesses in his absence and not affording him an opportunity to cross-

examine the witnesses. Relying on DeWeese, the State contends Davis had

waived his right to counsel and the court had no obligation to reappoint counsel

or obtain a waiver from Davis of his right to representation.5 Washington cases

         5 The State points to DeWeese to argue the trial court did not need to obtain a waiver of
the right to representation or appoint counsel after it removed the defendant. However, DeWeese
does not apply on this issue, as it involved very different facts. In DeWeese, the defendant
watched the State's examination of a witness from a television monitor in another room after the
court removed him for violating its rulings. 117 Wn.2d at 373. The court then invited the
defendant to return to cross-examine the witness, but the defendant declined. DeWeese, 117
Wn.2d at 374. The court warned the defendant of the consequences of absenting himself from
court, but the defendant continued to refuse to participate and asked to return to jail. DeWeese,
117 Wn.2d at 374. The trial court allowed the State to present the remainder of its case in the
defendant's absence and proceeded to closing arguments after the defendant chose not to
return. DeWeese, 117 Wn.2d at 374. Because the defendant voluntarily absented himself, the
Supreme Court upheld the trial court's decision not to appoint counsel for the defendant during
his absence. DeWeese, 117 Wn.2d at 379.


                                               14
No. 76806-9-1/15


have not yet addressed the propriety of going forward with trial after a court

properly removes a self-represented defendant for disruptive behavior. After a

review of cases from other jurisdictions, we conclude that, in this case,

proceeding with trial in Davis's absence violated his Sixth Amendment right to

representation.

       Appellate courts review de novo whether a trial court violated a

defendant's right to representation. State v. Jones, 168 Wn.2d 713, 719, 230

P.3d 576 (2010). Several state appellate courts and the Ninth Circuit have

addressed legal questions similar to the one before us.

       In People v. Carroll, the defendant chose to represent himself, but later

requested an attorney. 140 Cal.App.3d 135, 137-38, 189 Cal.Rptr. 327(Ct. App.

1983). The court declined to appoint counsel and then removed the defendant

several times during the trial for mentioning his lack of representation in front of

the jury. Carroll, 140 Cal.App.3d at 138-39. Specifically, the court removed the

defendant during portions of jury selection, his opening statement, and the

testimony of three witnesses. Carroll, 140 Cal.App.3d at 139. For two of the

witnesses, the court gave the defendant an opportunity to cross-examine, but he.

declined. Carroll, 140 Cal.App.3d at 139.

       The California Court of Appeal held the court violated the defendant's

Sixth Amendment right when it "deprived him not only of his own presence, but of

legal representation." Carroll, 140 Cal.App.3d at 140. As an alternative to

removal, the court noted the trial court could have appointed counsel, instituted

contempt proceedings, or restrained the defendant. Carroll, 140 Cal.App.3d at


                                         15
No. 76806-9-1/16


141. The California Court of Appeal has since reaffirmed Carroll's holding. See

People v. Ramos,5 Cal.App.5th 897, 907 n.5, 210 Cal.Rptr.3d 242(Ct. App.

2016)(holding when a trial court removes a self-represented defendant, the

defendant is necessarily deprived of the Sixth Amendment right to representation

during the absence); People v. Soukomlane, 162 Cal.App.4th 214, 75

Cal.Rptr.3d 496 (Ct. App. 2008)(noting the court's removal of a defendant during

the direct examination of a state's witness violated the Sixth Amendment to

counsel). Other courts have come to the same conclusion. See People v. Cohn,

160'P.3d 336, 343(Colo. App 2007)(determining the court violated the pro se

defendant's right to counsel when it removed him during segments of his trial).

       The Ninth Circuit addressed a similar issue in United States v. Mack,

where the trial court warned a disruptive defendant it would remove him and not

permit him to question witnesses if he continued his behavior. 362 F.3d 597, 599

(9th Cir. 2014). After the defendant's inappropriate behavior continued, the court

removed the defendant during his case. Mack, 362 F.3d at 599. Once the

defendant returned, the court did not allow him to continue to put on his defense.

Mack, 362 F.3d at 601. Instead, it halted the questioning of any witnesses and

did not allow closing argument by either side. Mack, 362 F.3d at 599. "In

practical effect,[the defendant] had been removed as his own counsel and

nobody stepped in to fill the gap." Mack, 362 F.3d at 601.

        The Mack court acknowledged a trial court may properly remove a

disruptive defendant. Mack, 362 F.3d at 600. The court held, however, that

while a self-represented defendant's disorderly conduct may forfeit his or her


                                        16
No. 76806-9-1/17


right to represent themselves and the right to be present, he or she does not

forfeit the right to representation. Mack, 362 F.3d at 601.6 Though a court may

remove a defendant for disrupting trial, "leaving [a defendant] without

representation is still far from appropriate." Mack, 362 F.3d at 601. The court

stated a trial court commits structural error when it prevents a self-represented

defendant from cross-examining witnesses, even if the defendant was

contemptuous of the court. Mack, 362 F.3d at 601-603.

        In Menefee, the Oregon Court of Appeals followed Mack. 268 Or. App. at

183. As discussed above, the trial court in Menefee characterized the removal of

the defendant as a voluntary absence because it found the defendant

intentionally acted disruptively to undermine the trial. See Menefee, 268 Or. App.

at 168. In the defendant's absence the State examined two witnesses.

Menefee, 268 Or. App. at 169. The Oregon Court reversed the defendant's

conviction, concluding the trial court violated the Sixth Amendment by failing to




          6 We note proceeding with trial in Davis's absence would not have been error if he had
voluntarily absented himself. See DeWeese, 117 Wn.2d at 379. Though DeWeese does not
address the effect of a voluntary absence on the right to representation, the issue was recently
before the Rhode Island Supreme Court. In State v. Eddy, a defendant dismissed his attorney
and chose to represent himself. 68 A.3d 1089,1092 (R.I. 2013). After the defendant then
dismissed two more attorneys whom the court appointed as standby counsel, the court denied
the defendant's request for appointed counsel on the morning of trial. Eddy,68 A.3d at 1092-96.
In response, the defendant told the court, "I don't want to be in the courtroom so the trial may
proceed in my absence.... I ask I be allowed to be removed from the courtroom during this
process because I don't want to cause a situation of a forced removal." Eddy,68 A.3d at 1096.
The court explained to the defendant he had a Sixth Amendment right to be present and, if he
waived that right, he would not be represented by counsel and would also be waiving his right to
cross-examination. Eddy,68 A.3d at 1097. The court allowed the defendant to leave after he
stated he understood the consequences and still did not want to attend. Eddy,68 A.3d at 1096-
97. The Rhode Island Supreme Court agreed the defendant knowingly and voluntarily waived
both his right to be present and right to representation, because he insisted on leaving trial after
the trial court explained all the rights he would be abandoning. Eddy,68 A.3d at 1103-04.



                                                17
No. 76806-9-1/18


appoint counsel or have the defendant waive his right to representation before

continuing without him. Menefee, 268 Or. App. at 185.

       Shortly after Menefee, the Oregon Court of Appeals reaffirmed its holding

that removing a self-represented defendant from a courtroom without first

appointing an attorney violates the right to representation. See State v. Lacey,

282 Or. App. 123, 127, 385 P.3d 1151 (2016). There, the trial court warned the

defendant that, if he disrupted the trial, it would proceed in his absence. Lacey,

282 Or. App. at 125. The appellate court rejected the argument that disruptive

conduct, in light of such a warning, led to a proper waiver of the right to

representation. Lacey, 282 Or. App. at 130. It held instead that, to find a valid

waiver, the court should have informed the defendant of his ongoing right to

representation, even if removed for misconduct. Lacey, 282 Or. App. at 130.

Additionally, it ruled the trial court should have advised the defendant he could

have an attorney appointed to represent him during his absence. Lacey, 282 Or.

App. at 130. The court stated that, if the trial court cannot obtain a valid waiver,

"the court may have to appoint counsel for a defendant who previously elected to

proceed pro se, notwithstanding the awkwardness of doing so mid-trial." Lacey,

282 Or. App. at 126-27. The court explained its approach as one to protect the

structural integrity of the criminal justice system. Lacey, 282 Or. App. at 126.

"Where a criminal case is tried against a vacant defense table, the adversarial

process has broken down, and cannot ensure that the convictions rendered are

fair and reliable. Our system strives to be fair, even to those who... work the

hardest to undermine it." Lacey, 282 Or. App. at 126.


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        Earlier this year, the Superior Court of Pennsylvania concluded a

defendant cannot forfeit his right to representation through misconduct.

Commonwealth v. Telada, 188 A.3d 1288, 1290-92, 2018 PA Super 145(2018).

In Te'ada, the trial court removed a self-represented defendant from trial after he

acted disruptively during jury selection. Te'ada, 188 A.3d at 1291. Following the

line of cases from California, the Ninth Circuit, and Oregon, the appellate court

held "the issue of removal is distinct from the right of representation by counsel,

and the related right of self-representation." Te'ada, 188 A.3d at 1293.

Concluding the defendant did not waive his right to representation, the court

reversed the conviction and remanded for a new trial. Te'ada, 188 A.3d at 1300.

        In this case, Davis chose to represent himself and then behaved

obstreperously throughout the court proceedings. The court finally removed him

and allowed the State to examine Officers Antholt and Graf before recessing for

the day.' Davis went unrepresented during these testimonies and was not given

the opportunity to cross-examine the two officers. He did not knowingly and

voluntarily waive his right to representation and agree to have an empty defense

table while the State questioned two critical witnesses. This remains the case

despite his decision to represent himself. As reflected above, cases from other


         7 We are mindful of the difficult situation posed by Davis's conduct, especially where
there was no directly applicable Washington case law. We note that trial courts can explore a
number of alternatives in such situations, including the following: engaging in a colloquy regarding
the right to representation, as the court did in Eddy, to see whether there is a waiver of the right to
representation; recessing, to give the defendant time to calm down (suggested in Menefee, 268
Or. App. at 185-86); having the defendant attend trial via video conference or providing the
defendant with a recording or transcript of the missed testimony and allowing the defendant the
opportunity to cross-examine the witnesses(proposed in Lacey, 282 Or. App. at 137(citing Cohn,
160 P.3d 343)); restraining defendant in the courtroom (allowed under Chapple, 145 Wn.2d 310
at 315); or appointing the defendant counsel(advanced in Carroll, 140 Cal.App.3d at 141).


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jurisdictions support this conclusion. We are unaware of authority supporting a

contrary result.

        Accordingly, we conclude leaving Davis without representation at trial

violated his Sixth Amendment right to representation. Because this error is

structural, we remand for a new trial on counts 2 and 3. See Mack, 362 F.3d at

601-603; State v. Wise, 176 Wn.2d 1, 14, 288 P.3d 1113(2012)("Structural

error... is not subject to harmlessness analysis.").8

        Davis missed the testimony of Officers Antholt and Graf, who arrested and

searched Davis in relation to his February 11, 2014 arrest for possessing a stolen

Buick vehicle and crack cocaine (counts 2 and 3). These officers, however, did

not participate in Davis's January 23, 2014 arrest for possessing a stolen

Hyundai vehicle (count 1). Since Davis was only absent for testimony pertaining

to counts 2 and 3, we see no error and affirm as to count 1.

        We affirm in part, reverse in part, and remand for a new trial.



                                                              c/......,
WE CONCUR:




       8 Because we find the trial court committed only a single error, we reject Davis's
cumulative error argument.


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