Supreme Court of the State of Washington 

Opinion Information Sheet


Docket Number: 81450-3
Title of Case: State v. Madsen
File Date: 03/25/2010
Oral Argument Date: 09/15/2009


SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
04-1-06136-5
Honorable Jeffrey M. Ramsdell


JUSTICES
--------
Barbara A. Madsen Signed Majority
Charles W. Johnson Signed Concurrence
Gerry L. Alexander Signed Majority
Richard B. Sanders Signed Majority
Tom Chambers Signed Majority
Susan Owens Signed Concurrence
Mary E. Fairhurst Concurrence Author
James M. Johnson Majority Author
Debra L. Stephens Signed Majority result only


COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
Lila Jane Silverstein
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647

Counsel for Respondent(s)
William Leonard Doyle
King County Prosecutors' Office
W554 King County Courthouse
516 Third Ave
Seattle, WA, 98104-2390


Prosecuting Atty King County
King Co Pros/App Unit Supervisor
W554 King County Courthouse
516 Third Avenue
Seattle, WA, 98104


James Morrissey Whisman
King County Prosecutor's Office
W554 King County Courthouse
516 3rd Ave
Seattle, WA, 98104-2362



IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,

Respondent, No. 81450-3

v. En Banc

KURT RANDALL MADSEN, Filed March 25, 2010

Petitioner.

J.M. JOHNSON, J. -- This case involves a criminal defendant's "right

to appear and defend in person, or by counsel," which is expressly protected

by Washington Constitution article I, section 22. Kurt Madsen was first

represented in a criminal proceeding by counsel appointed for him. Unhappy

with counsel, Madsen moved to proceed pro se on three occasions, citing and

quoting the relevant Washington constitutional provision. The trial court

deferred ruling on the first two motions and instead appointed new counsel.

State v. Madsen, No. 81450-3

Madsen's third motion was formally denied the day before scheduled jury

selection. We reverse the Court of Appeals and hold that the trial court

abused its discretion by denying Madsen the right of self-representation.

Facts and Procedural History

On September 2, 2004, Madsen placed three telephone calls to

Deborah Stuart in violation of a no-contact order. Between the first and

second call Stuart notified the police, and Madsen was later arrested and

charged with three counts of felony violation of a court order under former

RCW 26.50.110(1), (5) (2000).

At a court proceeding on January 24, 2006, Madsen's privately

retained counsel withdrew and Madsen personally moved to proceed pro se.

When the trial court inquired why Madsen wished to represent himself,

Madsen replied that he believed he "could resolve the whole issue."

Verbatim Report of Proceedings (VRP) (Jan. 24, 2006) at 5. The court

deferred on ruling on the pro se request, instead appointing Madsen new

counsel and stating, "After you have a chance to talk with them [new

counsel], if you still want to proceed pro se, I'm more than happy to hear the

motion." Id.

2

State v. Madsen, No. 81450-3

On March 7, 2006, the trial court held a hearing to consider Madsen's

motion to proceed pro se or in the alternative to terminate his counsel's

representation. VRP (Mar. 7, 2006) at 3. Madsen stated several reasons why

he did not want to be represented by his then-counsel and concluded, "I think

that I'd be better off representing myself . . . . Under Article I [Section] 22 I

have a right to represent myself." Id. at 8. Madsen also tried to argue several

substantive points and interrupted the court on several occasions.

The trial court expressed concern that Madsen's true motive was to fire

counsel, not necessarily to proceed pro se, and suggested an intermediate step

of assigning new counsel. Madsen replied, "I'd rather represent myself." Id.

at 12. The court asked Madsen's counsel if he had any concerns regarding

Madsen's competency, and counsel responded affirmatively. Madsen then

said to the court, "I am gonna revert to my constitutional rights, Washington

State constitutional rights, Article 1, Subsection 22, I have a right to represent

myself and that's what I'm going to move forward with doing." Id. at 13.

The trial court responded that if Madsen wanted to proceed pro se after

new counsel was appointed, the court would "entertain the motion." Id. at

19. The court also stated that it wanted someone to find out whether Madsen

3

State v. Madsen, No. 81450-3

was competent. Madsen objected to appointment of new counsel and

volunteered to take an "IQ test" or a "psychological exam[,] [w]hatever you

need." Id. at 18-19. No competency hearing or exam was ever ordered. At a

hearing on March 9, Madsen's new appointed counsel informed the court she

had no concerns regarding Madsen. The court made no further comments

regarding Madsen's competency.

On May 2, 2006, Madsen renewed his motion to proceed pro se. The

trial court replied that it did not think Madsen was prepared to interview and

select jury members or become sufficiently familiar with trial procedures in

time for trial. The court then asked Madsen whether he still wished to

represent himself, and Madsen replied, "at this point I am forced, almost

forced into doing that, so I would say yes." VRP (May 2, 3, 4, 8, 2006) at

87. The court then stated, "I am going to deny your motion to proceed pro

se. I don't feel you are prepared." Id. at 89.

On May 3, at the prosecutor's urging, the trial court clarified its

grounds for denying Madsen's motion. The court stated it had denied

Madsen's pro se motion after noting that Madsen had not been to law school,

did not know how to select a jury, and that the court had noticed Madsen

4

State v. Madsen, No. 81450-3

rolling his eyes and interpreted such as Madsen "not relish[ing] the idea" of

representing himself. Id. at 138. The court again asked if Madsen wished to

represent himself. Madsen refused to answer, stating that the judge had

earlier told him that "the only decisions you have at this point is whether to

plead guilty or not guilty." Id. at 125, 138-39. The court then noted that

Madsen's motion was made when the jury was about to be selected and

adjourned the hearing.

The trial court entered a written order on May 4, 2006, denying

Madsen's pro se motion. The order stated that during the May 2 hearing,

Madsen had been "extremely disruptive," "repeatedly addressed the court at

inopportune times," and "consistently showed an inability to follow or respect

the court's directions." Clerk's Papers (CP) at 21. The court found that

Madsen "at first was equivocal" in his pro se request, that Madsen was

concerned about his attorney's preparation for trial, and that the "court

engaged in a colloquoy [sic] with the defendant to ensure that the defendant

understood the risks and consequences of self-representation." Id. The

written order noted that trial was set to commence the next day, but that

"regardless of whether defendant's request to proceed pro se is in his best

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State v. Madsen, No. 81450-3

interests, the Court finds that defendant's request was untimely, and granting

the request would obstruct the orderly administration of justice." CP at 22.

The first witness for trial was actually called on May 8, 2006.

Madsen was convicted and received an 18 month sentence on

August 9, 2006. The Court of Appeals upheld Madsen's conviction. State v.

Madsen, noted at 143 Wn. App. 1028, 2008 WL 625282. Madsen petitioned
this court, and we granted review.1

Analysis

Criminal defendants have an explicit right to self-representation under

the Washington Constitution and an implicit right under the Sixth Amendment

to the United States Constitution. Wash. Const. art. I, ยง 22 ("the accused

shall have the right to appear and defend in person"); Faretta v. California,

422 U.S. 806, 819, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). This right is so

fundamental that it is afforded despite its potentially detrimental impact on

both the defendant and the administration of justice. Faretta, 422 U.S. at

834; State v. Vermillion, 112 Wn. App. 844, 51 P.3d 188 (2002). "The

unjustified denial of this [pro se] right requires reversal." State v. Stenson,

1 Because we find error in the trial court's denial of Madsen's motion to proceed pro se,
we need not address other claims raised by Madsen.

6

State v. Madsen, No. 81450-3

132 Wn.2d 668, 737, 940 P.2d 1239 (1997) (emphasis added).

However, both the United States Supreme Court and this court have

held that 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

Turay, 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)). As a

request for pro se status is a waiver of the constitutional right to counsel,

appellate courts have regularly and properly reviewed denials of requests for

pro se status under an abuse of discretion standard. E.g., State v. Hemenway,

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." State v.

Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).

The right to proceed pro se is neither absolute nor self-executing. 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. Stenson, 132 Wn.2d at 737. Absent a finding that

the request was equivocal or untimely, the court must then determine if the

7

State v. Madsen, No. 81450-3

defendant's request is voluntary, knowing, and intelligent, usually by

colloquy.2 Faretta, 422 U.S. at 835; State v. Stegall, 124 Wn.2d 719, 881

P.2d 979 (1994). Even if a request is unequivocal, timely, voluntary,

knowing, and intelligent, a court may defer ruling if the court is reasonably

unprepared to immediately respond to the request. Again, the court shall

indulge in "'every reasonable presumption' against a defendant's waiver of

his or her right to counsel." Turay, 139 Wn.2d at 396 (quoting Brewer, 430

U.S. at 404).

This presumption does not give a court carte blanche to deny a motion

to proceed pro se. The grounds that allow a court to deny a defendant the

right to self-representation are limited to a finding that the defendant's request

is equivocal, untimely, involuntary, or made without a general understanding

of the consequences. Such a finding must be based on some identifiable fact;

the presumption in Turay does not go so far as to eliminate the need for any

basis for denying a motion for pro se status. Were it otherwise, the

presumption could make the right itself illusory.

A court may not deny a motion for self-representation based on

2 A colloquy is unnecessary if there are independent, identifiable facts that show whether
the request is voluntary, knowing, and intelligent.

8

State v. Madsen, No. 81450-3

grounds that self-representation would be detrimental to the defendant's

ability to present his case or concerns that courtroom proceedings will be less

efficient and orderly than if the defendant were represented by counsel.

Similarly, concern regarding a defendant's competency alone is insufficient; if

the court doubts the defendant's competency, the necessary course is to order

a competency review. In re Fleming, 142 Wn.2d 853, 863, 16 P.3d 610

(2001); RCW 10.77.060(1)(a).

Madsen made three separate motions to proceed pro se, one each in

January, March, and May 2006. Though the trial court deferred its decision

on Madsen's first two motions, we examine each motion independently to

determine if the requirements for pro se status were met. If so, then deferring

ruling on the motion is as erroneous as a denial.

a. January 24, 2006

Madsen's motion for pro se status on January 24, 2006, was

unequivocal, timely, voluntary, knowing, and intelligent. Thus, had Madsen's

motion been denied, the trial court would have committed reversible error.

Madsen clearly stated that he sought pro se status and never wavered from

that position. As the case had not yet been set for trial, the only conclusion

9

State v. Madsen, No. 81450-3

that can be drawn is that Madsen's motion was both unequivocal and timely.

The trial court's colloquy to determine whether Madsen's motion was

voluntary, knowing, and intelligent was limited to asking why Madsen wanted

to represent himself, and Madsen answered that he thought he could resolve

the case on his own. We need not decide whether this answer is sufficient to

show that Madsen made a voluntary, knowing, and intelligent waiver of his

right to counsel. Madsen gave a complete answer to the court's question.

The court failed to inquire further or identify facts suggesting that Madsen's

request was legally deficient. As stated above, the presumption in Turay

must be coupled with some factual basis; the court cannot stack the deck

against a defendant by not conducting a proper colloquy to determine whether

the requirements for waiver are sufficiently met. As the court failed to ask

further questions and there is no evidence to the contrary, the only

permissible conclusion is that Madsen's request was voluntary, knowing, and

intelligent.

However, the trial court did not err by deferring Madsen's motion. As

the Court of Appeals properly noted, a trial court must be allowed the

flexibility and discretionary authority to properly manage its own affairs.

10

State v. Madsen, No. 81450-3

Madsen, 2008 WL 625282, at * 5. The record reflects that the trial court had

no notice of Madsen's desire to request pro se status prior to Madsen's

saying so in the midst of his counsel's motion to withdraw. The court may

reasonably have felt unprepared to immediately consider a request for pro se

status. The trial court was within the bounds of proper discretion to delay

ruling on the matter until it could properly prepare to rule on the issue.

b. March 7, 2006

Madsen's second request for pro se status was unequivocal, timely,

voluntary, knowing, and intelligent, and the trial court had advance notice of

Madsen's request. The trial court therefore abused its discretion by failing to

grant Madsen pro se status after this request.

Madsen explicitly and repeatedly cited article I, section 22 of the

Washington State Constitution -- the provision protecting Madsen's right to

represent himself. Madsen never wavered from his demand for self-

representation. Unlike his January motion, the court had clear notice; the

hearing was explicitly set to consider Madsen's motion to proceed pro se or,

alternatively, to fire his attorney.

The Court of Appeals identifies two reasons why Madsen's request

11

State v. Madsen, No. 81450-3

was equivocal. First, it was coupled with an alternative remedy to fire

Madsen's then counsel. Second, there had been court appearances after both

the January and March requests where Madsen did not raise his pro se

request. Both of these reasons rely on improper legal reasoning and thus

reliance on such is an abuse of discretion.

We have previously stated that an unequivocal request to proceed

pro se is valid even if combined with an alternative request for new counsel.

See Stenson, 132 Wn.2d at 741. The argument that Madsen's request was

equivocal because it was coupled with an alternative request is fallacious and

ignores this court's precedent. Madsen twice invoked and cited, by article

and section, his state constitutional right to represent himself. There was no

equivocation. Madsen's inclusion of an alternative remedy is irrelevant to

whether Madsen's request was unequivocal.

The Court of Appeals also held that Madsen's motion was equivocal

because Madsen waited over a month to renew his first motion, and Madsen

did not subsequently renew his request for a period of time. Madsen, 2008

WL 625282, at *6. This is not the correct test. There is no requirement that

a request to proceed pro se be made at every opportunity. Further, a trial

12

State v. Madsen, No. 81450-3

court's finding of equivocation may not be justified by referencing future

events then unknown to the trial court. Such prophetic vision is impossible

for the trial court.3 The trial court told Madsen on both January 24 and

March 7 that it was deferring its ruling on Madsen's motion until Madsen

consulted with new counsel. Madsen cannot be punished for doing exactly as

the court required.

Madsen's request was timely. The trial court clearly thought there was

sufficient time for new counsel to be appointed and become familiar with the

case. In such a situation, the trial court should find that a defendant's request

for pro se status is also timely unless there are specific facts that provide

grounds for a contrary ruling.

Here, however, the trial court did not find Madsen's March 7 motion

untimely as of March 7, but instead treated the motion as deferred and

renewed on May 2, the day before jury selection. The trial court then held

that the motion occurred the day before the scheduled jury selection and was

untimely. The court erred by assessing the timeliness of all three pro se

requests on the basis of the final motion renewal on May 2. As the Court of

3 The Court of Appeals succumbed to the historian's fallacy by relying on then-future
events to justify the trial court's denial of Madsen's request.

13

State v. Madsen, No. 81450-3

Appeals on another occasion has properly identified, timeliness is determined

on a continuum:

If the demand for self-representation is made (1) well before the
trial or hearing and unaccompanied by a motion for a
continuance, the right of self representation exists as a matter
of law; (2) as the trial or hearing is about to commence, or
shortly before, the existence of the right depends on the facts of
the particular case with a measure of discretion reposing in the
trial court in the matter; and (3) during the trial or hearing, the
right to proceed pro se rests largely in the informed discretion of
the trial court.

State v. Barker, 75 Wn. App. 236, 241, 881 P.2d 1051 (1994) (emphasis

added). This continuum standard was cited but improperly applied by the

Court of Appeals. Madsen, 2008 WL 625282, at *5. Where a court is put on

notice of a defendant's desire to proceed pro se but nevertheless delays ruling

on the motion, fairness requires the timeliness of the request must be

measured from the date of the initial request. State v. Breedlove, 79 Wn.

App. 101, 109, 900 P.2d 586 (1995). Madsen clearly indicated on January

24 and March 7 that he desired to proceed pro se. The Court of Appeals

distinguished Breedlove by noting that "Madsen allowed new counsel to

represent him for substantial periods of time" and that "Madsen's persistent

disruptions impaired the orderly administration of justice." Madsen, 2008

14

State v. Madsen, No. 81450-3

WL 625282, at *7. These distinctions are insufficient. Although the trial

court's duties of maintaining the courtroom and the orderly administration of

justice are extremely important, the right to represent oneself is a fundamental

right explicitly enshrined in the Washington Constitution and implicitly

contained in the United States Constitution. The value of respecting this right

outweighs any resulting difficulty in the administration of justice.4

Closely related to timeliness is the concern that a defendant will invoke

the right to self-representation to obstruct or delay the administration of

justice. The Court of Appeals held that Madsen was generally disruptive,

particularly during the May hearing. It must be remembered, however, that a

criminal defendant's right to pro se status cannot be denied simply because

affording the right will be a burden on the efficient administration of justice.

Faretta, 422 U.S. at 834; Vermillion, 112 Wn. App. at 850-51. Though

Madsen did interrupt the trial court on several occasions, Madsen was trying

to address substantive issues that the record shows he clearly thought were

unresolved and were not addressed by the court. A court may deny pro se

4 After pro se status is granted, the court retains power to impose sanctions for improper
courtroom behavior. The court may also appoint standby counsel or allow hybrid
representation and even terminate pro se status if a defendant is sufficiently disruptive or if
delay becomes the chief motive.

15

State v. Madsen, No. 81450-3

status if the defendant is trying to postpone the administration of justice.

Madsen never requested a continuance. A court may not deny pro se status

merely because the defendant is unfamiliar with legal rules or because the

defendant is obnoxious. Courts must not sacrifice constitutional rights on the

altar of efficiency.

The record suggests that one reason the trial court deferred ruling on

Madsen's March 7 motion was concern over competency. The trial court

asked Madsen's counsel if he had concerns regarding Madsen's competency.

After counsel replied in the affirmative, the court immediately decided to

defer ruling on the motion. Once Madsen had new counsel appointed, the

court inquired as to whether this counsel had such concerns. Counsel replied

that she did not, and the court voiced no further competency concerns.

Incompetency may be a legitimate basis to find a request for self-

representation equivocal, involuntary, unknowing, or unintelligent. However,

simply deferring ruling is incorrect as a matter of law. If the trial court was

concerned with Madsen's competency, it should have ordered a competency

hearing. Fleming, 142 Wn.2d at 863 ("'once there is a reason to doubt a

defendant's competency, the court must follow the statute to determine his or

16

State v. Madsen, No. 81450-3

her competency to stand trial'" (quoting City of Seattle v. Gordon, 39 Wn.

App. 437, 441, 693 P.2d 741 (1985))); RCW 10.77.060(1)(a). Appointing

new counsel to evaluate competency is not proper because lawyers are not

mental health experts. Madsen's motion should have been granted.

c. May 2, 2006

Because we find that Madsen's motion to proceed pro se was

improperly denied on March 7, 2006, we need not determine whether the trial

court's denial of Madsen's May 2, 2006, motion was further error.

Conclusion

We hold the trial court's denial of Madsen's motion for pro se status

was error. Madsen was entitled as a matter of law to an order allowing him

to defend in person as guaranteed by the Washington Constitution. We

reverse the Court of Appeals and remand for further proceedings.

17

State v. Madsen, No. 81450-3

AUTHOR:

Justice James M. Johnson

WE CONCUR:

Chief Justice Barbara A. Madsen

Justice Gerry L. Alexander

Justice Richard B. Sanders Justice Debra L. Stephens, result

Justice Tom Chambers

18