                                                                 FILED
                                                               JULY 9, 2020
                                                      In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division III



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

STATE OF WASHINGTON,                         )         No. 36552-2-III
                                             )         (consolidated with
                     Respondent,             )         No. 36553-1-III)
                                             )
              v.                             )
                                             )         PUBLISHED OPINION
LANCE THEOPOLIS SMITH,                       )
                                             )
                     Appellant.              )

       LAWRENCE-BERREY, J. — Lance Smith appeals after a jury found him guilty of

two counts of felony violation of a no-contact order. Smith contends the trial court

committed constitutional error when it revoked his self-represented status, appointed

counsel, and later refused to allow him to represent himself. Because Smith lacked the

mental capacity to represent himself, we affirm.

                                         FACTS

       Lance Smith was a server at a restaurant in Richland. Jennifer Bonneru also

worked there. Smith and Bonneru became friends, but were never romantically involved.

They worked together for about six months. During this time, Smith sustained a head

injury from a snowboarding accident.
No. 36552-2-III; No. 36553-1-III
State v. Smith


          When Smith returned to work, Bonneru noticed a change in his behavior. Smith

acted strange, said weird things, began peeling decals from the restaurant’s windows, and

tried to plant trees in concrete outside the restaurant. The restaurant asked Smith not to

come back to work.

          After Smith left the restaurant, he began contacting Bonneru. He sent Bonneru

lengthy messages that did not make sense. She asked him to stop. She blocked him on

social media and changed her telephone number. Smith sent messages to her through

Facebook, sent letters to her place of employment, contacted her sister and mother, and

threatened her ex-boyfriends. At one point, Bonneru’s cell phone was rendered

temporarily inoperable because Smith had sent over 200 texts within a short period of

time.

          Bonneru contacted police and obtained a no-contact order. Additional orders were

placed after misdemeanor violations by Smith.

          In the fall of 2017, Smith sent Bonneru a message through Facebook in violation

of an existing no-contact order. In January 2018, Smith saw Bonneru through the front

window of a bar and waved at her. Bonneru’s friend asked Smith to leave and called the

police.




                                              2
No. 36552-2-III; No. 36553-1-III
State v. Smith


         Procedural History

         The State charged Smith with two felony violations of a no-contact order under

separate cause numbers for the 2017 and 2018 incidents. The trial court consolidated

Smith’s two cases. At his initial appearance, the court appointed public counsel for

Smith.

         At Smith’s omnibus hearing, he requested to represent himself. Smith told the trial

court he self-studied the law, was relatively familiar with the rules of evidence, wanted to

represent himself because he was innocent, and believed he would have a bigger effect

representing himself and proving his innocence. The court denied Smith’s oral motion

but allowed Smith to make a written motion.

         Smith filed a written motion to represent himself and the trial court granted it.

Smith argued for release on his own recognizance. The court denied Smith’s request, but

lowered his bail amount. Smith continued to dispute the court’s decision.

         Throughout pretrial proceedings, Smith continued to argue with, berate, and ask

unusual questions to the trial court. See Report of Proceedings (RP) (Jan. 25, 2018) at 3-

5; RP (Feb. 28, 2018) at 42-45, 47-51, 53; RP (Mar. 7, 2018) at 9-13, 39, 41-46, 67, 71,

74-77, 80, 91-93, 98-104, 106-07, 113-14, 121-24, 161-64, 166-68; RP (Mar. 12, 2018) at

10; RP (Mar. 14, 2018) at 31-39, 42-43, 46; RP (Apr. 11, 2018) at 54; RP (July 25, 2018)


                                                3
No. 36552-2-III; No. 36553-1-III
State v. Smith


at 6-10; RP (Nov. 5, 2018) at 17-18, 20-25, 36-41, 44-45; RP (Dec. 19, 2018) at 48-52.

The court ordered a competency evaluation. Smith’s evaluator found Smith competent to

stand trial.

       Smith’s case proceeded to trial. During voir dire, Smith repeatedly asked the

jurors which of them did not want to be there. A few minutes in, four jurors said they

could not be fair because Smith made a bad decision to represent himself, and he made a

negative impact on them. The trial court excused those jurors.

       Smith then began making an opening argument to the venire jury; the court re-

directed him to ask the jurors questions. Smith then asked a juror who was the most

famous attorney he knew. At that point, a different juror addressed the court and said, “I

am concerned whether the defendant is of a sound mind the way this is proceeding and I

just wanted to bring that to your attention.” RP (Mar. 12, 2018) at 69. Smith responded

to the juror by saying he comes off as a genius to some people or really irritating and

completely mental to others. Smith and the juror then began to argue.

       Smith asked a different juror if he was excited for St. Patrick’s Day. Smith asked

another, “[D]o you like the way our government is being ran right now?” RP (Mar. 12,

2018) at 71. Smith asked another, “[D]o you think it’s cool or not cool that the Bible is

no longer in our courtroom?” RP (Mar. 12, 2018) at 72. Smith stated he had been locked


                                             4
No. 36552-2-III; No. 36553-1-III
State v. Smith


up for two months and asked another juror if it was springtime. He asked two more jurors

if they appreciated the way the government is being run. A juror then addressed Smith

directly: “Mr. Smith, I am concerned about your ability to represent yourself. You are off

topic. You’re—you don’t seem to be aware of what time of the year it is, and I don’t

think I can be fair because I don’t think you have the capability to represent yourself.”

RP (Mar. 12, 2018) at 73.

       At that point, the trial court excused the venire jury and spoke to the parties about

the jurors’ concerns. Those concerns, coupled with the fact that Smith asked repetitive

questions, referred to being locked up, and said he hoped he would be out in the new year,

led the court to declare a mistrial. The court set a hearing date to determine whether

Smith could continue to represent himself.

       At that hearing, the trial court ultimately determined that Smith could not continue

to represent himself and receive a fair trial. The court explained to Smith:

              You have a consistent pattern in hearings and sessions in court of
       being unable to, either through the passage of time or through results that
       you disagree with, that you’re simply unable to keep from acting out. And
       that makes it impossible for you to discharge the role of representing
       yourself.
              As I indicated to you, the problem with that is that your failure to
       comply would have the disastrous result that not only would you be unable
       to represent yourself, but, if I had to remove you from the courtroom for
       your behavior, you would then be left in a position without anyone present
       to be able to vindicate your interests.

                                              5
No. 36552-2-III; No. 36553-1-III
State v. Smith


             Here, using the analogy of State v. Thompson, [169 Wn. App. 436,
      290 P.3d 996 (2012)] which deals with it in the context of appointing
      successor counsel, I find that it’s appropriate to deny you pro se status
      because you’re not merely disruptive but you’re sufficiently disruptive that
      it means that we can’t pick a jury.
             The Court in [State v.] Kolocotronis[, 73 Wn.2d 92, 436 P.2d 774
      (1968)] indicates that mental health is an issue that the Court can consider.
      Mental health issues that don’t rise to the level of incompetency are still
      properly considered by the Court.
             . . . But your behavior, during our attempt to pick a jury, has shown
      that those things about you, which I’ve described, mean that there’s no
      reasonable likelihood that you can effectively represent yourself. . . .

RP (Mar. 14, 2018) at 40-41 (emphasis added). Smith then began to argue, interrupt, and

speak out, and the court removed him from the courtroom.

      At the next hearing, Smith spoke out of turn and asked the trial court if it was

familiar with mutual combat and said, “[Y]ou may be subpoenaed to mutual combat with

me by the State of Washington.” RP (Apr. 11, 2018) at 54. The court ordered a second

competency evaluation. The evaluator again found Smith competent to stand trial.

      Smith continued to argue to the trial court that he wanted to represent himself. At

defense counsel’s request, the court ordered a mental health evaluation to determine




                                            6
No. 36552-2-III; No. 36553-1-III
State v. Smith


Smith’s sanity or diminished capacity.1 With respect to whether Smith had the mens rea

to commit the charged offenses, the evaluator concluded: “‘[I]t is . . . likely that Mr.

Smith experienced reduced mental status due to symptoms of delusional disorder which

overshadowed his rational thinking and impulse control abilities.’” Clerk’s Papers

(CP) at 34. Smith, with counsel, proceeded to trial under a theory of diminished capacity

due to mental defect.

       During voir dire of Smith’s second jury, Smith exclaimed, “For the record,

Attorney Ajax, you are fired because you don’t listen to me and you are jeopardizing my

innocence.” RP (Mar. 7, 2018) at 161. The court excused the venire jury and Smith

continued, “Keep that in mind, jurors. Thank you. . . . As you are leaving, she does not

represent me.” RP (Mar. 7, 2018) at 161. After continued argument and outbursts with

the court, the court removed Smith to a media room. Smith remained in the media room

for the first day of trial, but returned to the courtroom the second day of trial.




       1
         The trial court’s findings in support of its order state in part: “The defendant is
competent to proceed to trial. The defense notified the prosecution that it intends to rely
upon the defense of . . . insanity . . . and/or [lack of] capacity to have a particular state of
mind . . . . Independent evaluator, Dr. Jameson Lontz, previously evaluated the defendant
and supports that affirmative defense.” Clerk’s Papers (CP) at 26.

                                               7
No. 36552-2-III; No. 36553-1-III
State v. Smith


       The jury found Smith guilty of both counts. The court convicted Smith and

sentenced him to 13 months on each count, to run concurrently, with credit for time

served.

       Smith timely appealed.

                                         ANALYSIS

       Smith contends the trial court committed two errors. He claims the court erred by

revoking his right to proceed pro se and the court erred by not adequately considering his

subsequent requests to proceed pro se.

       We review a trial court’s denial of the right to self-representation for an abuse of

discretion. In re Pers. Restraint of Rhome, 172 Wn.2d 654, 667, 260 P.3d 874 (2011). A

trial court abuses its discretion if its “decision is manifestly unreasonable or ‘rests on facts

unsupported in the record or was reached by applying the wrong legal standard.’” State

v. Madsen, 168 Wn.2d 496, 504, 229 P.3d 714 (2010) (quoting State v. Rohrich, 149

Wn.2d 647, 654, 71 P.3d 638 (2003)).

       The Washington Constitution expressly guarantees criminal defendants the right to

self-representation. WASH. CONST. art. I, § 22. The Sixth Amendment to the United

States Constitution implicitly guarantees this right. Faretta v. California, 422 U.S. 806,

819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). Courts regard this right as “so fundamental


                                               8
No. 36552-2-III; No. 36553-1-III
State v. Smith


that it is afforded despite its potentially detrimental impact on both the defendant and the

administration of justice.” Madsen, 168 Wn.2d at 503. Improper denial of the right to

represent oneself requires reversal, and no showing of prejudice is required. Id.

       Smith emphasizes that he has a constitutional right to represent himself and

repeatedly cites Madsen for the proposition that a trial court must honor this constitutional

right even though self-representation might be detrimental to the defendant or a burden on

the efficient administration of justice.

       In Madsen, the defendant requested three times to proceed pro se. The first time,

the trial court appointed new counsel and deferred ruling on the motion. Id. at 501. The

second time, the trial court expressed concerns about Madsen’s competency, stated its

desire for someone to find out if Madsen was competent, appointed new counsel, and

denied the motion. Id. at 501-02. The third time, the trial court denied the motion

because it was made on the eve of trial and granting it would obstruct the orderly

administration of justice. Id. at 502-03. The trial court entered a written order that stated

that Madsen, during the third hearing, had been “‘extremely disruptive,’” “‘repeatedly

addressed the court at inopportune times,’” and “‘consistently showed an inability to

follow or respect the court’s directions.’” Id. Madsen was convicted, and the Supreme




                                              9
No. 36552-2-III; No. 36553-1-III
State v. Smith


Court accepted his petition for review to determine whether the trial court erred in

denying his motion to proceed pro se.

       The Madsen court determined that Madsen’s second request to proceed pro se was

unequivocal, timely, voluntary, knowing, and intelligent. Id. at 506. It explained, if the

trial court had concerns about Madsen’s competency, the trial court should have ordered a

competency hearing. Id. at 510. The Madsen court concluded that the trial court erred in

denying Madsen’s second request to proceed pro se. Id.

       We contrast Madsen with Rhome. In Rhome, our Supreme Court explained that

the right of self-representation does not extend to persons who lack the mental capacity to

represent themselves. Rhome, 172 Wn.2d at 661-62; see also State v. Englund, 186 Wn.

App. 444, 457, 345 P.3d 859 (2015). We quote Rhome at length because it squarely

addresses all of Smith’s arguments raised on appeal:

       [T]he Edwards[2] Court . . . held that it is constitutionally permissible for a
       state to deny a defendant pro se status “on the ground that [he] lacks the
       mental capacity to conduct his trial defense” even though he was found
       competent to stand trial. Id. at 174.
               The Edwards Court observed that the standard to determine whether
       a defendant is competent to stand trial assumes he will assist in his defense,
       not conduct his defense, and therefore competency to stand trial does not
       automatically equate to a right to self-representation. Id. at 174-75. In
       addition, while the dignity and autonomy of an individual underscore the
       right to self-representation, in the Edwards Court’s view,

       2
           Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008).

                                             10
No. 36552-2-III; No. 36553-1-III
State v. Smith


               a right of self-representation at trial will not “affirm the dignity”
               of a defendant who lacks the mental capacity to conduct his defense
               without the assistance of counsel. To the contrary, given that
               defendant’s uncertain mental state, the spectacle that could well
               result from his self-representation at trial is at least as likely to prove
               humiliating as ennobling.
       Id. at 176 (citation omitted) (quoting McKaskle v. Wiggins, 465 U.S. 168,
       176-77, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984)). Furthermore, “insofar as
       a defendant’s lack of capacity [for self-representation] threatens an
       improper conviction or sentence, self-representation in that exceptional
       context undercuts the most basic of the Constitution’s criminal law
       objectives, providing a fair trial.” Id. at 176-77. Finally, in addition to a
       concern that the proceeding be fair, the Edwards Court also worried that
       self-representation in this context might damage the appearance of fairness
       observers expect from our justice system. Id. at 177.

Rhome, 172 Wn.2d at 659-60 (some alterations in original).

       The Rhome court discussed Kolocotronis, 73 Wn.2d 92, and confirmed

       Kolocotronis . . . allows a trial court to limit the right to self-representation
       when there is a question about a defendant’s competency . . . to act as his
       own counsel, even if the defendant has been found competent to stand trial.
       This reflects concern for a defendant’s right to a fair trial and due process of
       law.

Rhome, 172 Wn.2d at 661-62.

       If there are sufficient facts in the record, we defer to the trial court’s finding that a

defendant lacks the mental capacity for self-representation. This is because the trial court

communicates with and observes the defendant’s nonverbal behavior. Englund, 186 Wn.




                                               11
No. 36552-2-III; No. 36553-1-III
State v. Smith


App. at 454 n.5. Nonverbal behavior is often inadequately reflected in the written record

on review.

       Here, the trial court did not make any express finding why it revoked Smith’s self-

represented status. Nevertheless, an appellate court may examine the trial court’s oral

comments to determine the basis for its decision. State v. Kronich, 131 Wn. App. 537,

543, 128 P.3d 119 (2006), aff’d, 160 Wn.2d 893, 161 P.3d 982 (2007). After the trial

court declared a mistrial, it scheduled a hearing. In that hearing, the court explained to

Smith its reasons for revoking his self-represented status and appointing counsel. The

court explained to Smith that his mental health issues caused him to engage in such a high

degree of disruptive behavior that “there’s no reasonable likelihood that you can

effectively represent yourself.” RP (Mar. 14, 2018) at 41. We construe this comment as a

finding that Smith lacked the mental capacity to represent himself. Such a finding is well

supported by the record.

       We distinguish this case from Madsen. Here, the trial court twice ordered a

competency evaluation. Although both evaluations concluded that Smith was competent

to assist trial counsel, they did not conclude that Smith had the mental capacity to conduct

his own defense. As noted in Rhome, one may be competent to assist trial counsel but

lack the mental capacity to conduct one’s own defense. 172 Wn.2d at 659. A medical


                                             12
No. 36552-2-III; No. 36553-1-III
State v. Smith


evaluation later concluded that Smith’s mental capacity was sufficiently impaired that he

lacked the impulse control to comply with the no-contact order. Impulse control was an

important consideration in the trial court’s finding that Smith lacked the mental capacity

to represent himself. The trial court’s finding, supported by a medical opinion, combine

to distinguish this case from Madsen.3 The facts here fit squarely within the rule

announced in Rhome.

       Consistent with Rhome, the trial court properly revoked Smith’s self-represented

status and appointed counsel. This was necessary to protect Smith’s constitutional rights

to a fair trial and due process of law. We conclude the trial court did not abuse its

discretion in doing this. Because there is no evidence that Smith’s mental capacity

improved, we also conclude the trial court did not err in denying Smith’s later requests to

represent himself.




       3
        A medical opinion is not required for a trial court to find that a defendant lacks
the mental capacity for self-representation. But such an opinion will likely avoid a
successful appeal of the issue. In Englund, the majority and the dissent disagreed whether
the defendant’s lack of capacity to represent himself was due to a lack of skill and
education or due to a mental impairment. An expert opinion can be helpful in making this
important distinction. A lack of skill or education is an improper basis to deny a
defendant’s request for self-representation.

                                             13
No. 36552-2-III; No. 36553-1-III
State v. Smith


       Affirmed.




                                                 j
WE CONCUR:




Pennell, C.J.                      Fearing, J.




                                     14
