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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                        )       No. 66348-8-I
                                            )
                      Respondent,           )       DIVISION ONE
                                            )
                v.                          )
                                            )       UNPUBLISHED OPINION
MARIO SUGGS                                 )
AKA MARIO T. BROWN,                         )
                                            )
                      Appellant.            )       FILED:  June 11, 2012
       Schindler, J.  --  Mario Suggs1 seeks reversal of his conviction of domestic 

violence assault in the third degree of Miranda Haddow.  Suggs claims the trial court 

violated his constitutional right to self-representation by failing to engage in a colloquy 

to determine whether his request was voluntary, knowing, and intelligent.  Because the 

record shows that Suggs did not make an unequivocal request to represent himself, we 

affirm.

                                            FACTS

       On June 20, 2010, Mario Suggs and his girlfriend Miranda Haddow argued.

Haddow testified that when she asked Suggs to leave the apartment,he threw a cell 

phone at her, threw her down on the floor, and began kicking her.  Haddow said that 

       1 As reflected in the caption, the record indicates Mario Suggs is also known as Mario T. Brown. 

No. 66348-8-I/2

Suggs then dragged her into the bedroom by her hair, kicked her in the legs and neck, 

and punched her in the face.  Haddow testified that Suggs told her, "I'm going to have 

to keep you here . . . [m]aybe I could kill you."

       The State charged Suggs with domestic violence assault in the second degree, 

Count 1; domestic violence unlawful imprisonment, Count 2; domestic violence felony 

harassment, Count 3; and interfering with domestic violence reporting, Count 4. At the 

arraignment on July 6, Suggs pleaded not guilty.

       Before trial, the State filed a trial brief indentifying a number of issues, including 

the admissibility of ER 404(b) evidence.  The trial began on September 2.  At the 

beginning of the trial, the attorneys addressed scheduling conflicts and the need for 

additional time to prepare before jury selection on September 13.  Defense counsel 

confirmed that with the additional time, he would be "fully prepared."  Defense counsel 

also informed the court that Suggs "wants to go forward because he's been persistent 

in that position so far." The court explained to Suggs "what I am proposing would 

essentially give both counsel an additional ten days or so to get through some 

additional preparation." The court then asked, "Mr. Suggs given that, all you've heard 

so far, are you comfortable with us proceeding on that schedule and starting trial now, 

getting through pre-trial and starting with jury selection on Monday the 13th?" In 

response, Suggs told the court, "Yes, Your Honor, I agree with that, that would be the

best for me."

       At the pretrial hearing on September 7, the State addressed the admissibility of

two prior incidents between Suggs and Haddow that occurred in April and on June 13.  

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The State relied on statements Haddow made under oath in police reports.  The 

defense stated that it anticipated offering evidence about the prior incidents by calling 

Suggs to testify, but asked for a brief recess "to speak with Mr. Suggs and explain."  

       After the recess, defense counsel told the court that Suggs "prefers not to give 

testimony, he prefers the testimony be presented by other witnesses who have 

knowledge of the events besides himself." The attorney told the court that because he 

was "not prepared today to present that testimony," Suggs "is displeased with the state 

of my preparation." The defense attorney said that "the level of cooperation that exists 

presently as a result of that interferes with my ability to effectively proceed," and asked 

the court to address "that question now before we get into a further complication as trial 

progresses." The defense also told the court:

       I am anticipating what other problems might develop and I think it's better 
       to try to capture them now than before we've gotten to a point where we 
       can't.  But my present concern is that after two meetings with Mr. Suggs 
       yesterday and today -- briefly today, a little longer yesterday -- I am 
       satisfied that there is a developing barrier that will prevent effective 
       communication that will affect the quality and the presentation of the 
       defense in this case and whether it's merited or not, it exists.

       The court asked Suggs if he wanted to address defense counsel's concern 

about "the communication between the two of you." In response, Suggs told the court:

       Just the fact that my concerns are not able to be expressed.  I feel like my 
       voice is being muffled, a lot of questions I have and things of that nature 
       are not answered and I try to contact my lawyer, it's just like you said 
       there's a continual barrier, there's like this ever existing barrier that makes 
       it hard to really communicate.  I don't know, like I have a few concerns like 
       regarding my situation and my trial, like he had contacted some of the 
       witnesses like my uncle and the people that were all present, I mean
       some of the past allegations Miranda was talking about, you know, they
       were present during all that. 

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No. 66348-8-I/4

       The court then reiterated to Suggs that his attorney would have additional time 

to prepare and emphasized the need to communicate with his attorney.  

              THE COURT:  As I am understanding [defense counsel, he] is 
       saying that if the court were to grant him that time between now and 
       Monday he would have the time to do that, that's what I am hearing 
       [defense counsel] indicate to me.
              MR. SUGGS:  I mean isn't that common sense to do that though in 
       trial, just one call to my grandma's house and they are all there waiting.
              THE COURT:  But Mr. Suggs hold on a minute.  You also have to 
       listen to [defense counsel] because sometimes you may think evidence 
       may be relevant and [defense counsel] may disagree with you, so make 
       sure that the two of you are communicating.

       Suggs continued to complain about his attorney, expressing frustration with the

ability to communicate with his attorney.  "[I]t's like I don't get an opportunity to express 

myself period, or any questions I have or anything, it's like I can't think, he doesn't want 

me to think or something, you know what I mean?"  

       In response, the court asked Suggs what he was proposing.  "I hear you. I 

understand your concerns.  Well what are you proposing?  What are the two of you 

proposing?" Suggs replied, "I am just asking how do you come to the conclusion that I 

am being represented adequately if I can't, in light of all that?  I don't understand." The 

court then asked whether Suggs was asking to represent himself.  "How am I to 

interpret this, that you are requesting to represent yourself?" Suggs replied, "I would 

love that. I would love that. Really would."

       The court suggested Suggs discuss with his attorney whether he wanted to 

represent himself "because representing yourself is a very complicated procedure" and 

"it's not generally perceived as the best way to proceed."  Defense counsel then 

addressed the concerns Suggs expressed about communication.

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              Because of the brevity of time, sometimes I am required to cut it 
       short so that I can get the information out on the table . . . I understand 
       that I may need to be more patient, and with some individuals it's better to 
       listen longer and speak shorter, and I haven't always been good with that 
       with Mr. Suggs.

       The court then asked Suggs if he was willing, "based on what [defense counsel] 

has just represented," to continue to work with defense counsel.

       Well Mr. Suggs are you willing, based on what [defense counsel] has just 
       represented to the court, are you willing to give it a try this afternoon to 
       talk with him, sit down and go through and listen to him and his advice 
       and share with him your concerns in a constructive manner and see if the 
       two of you can in fact come up with a plan that you're comfortable with 
       and that [defense counsel] is comfortable with for how to proceed . . . . 
       Are you willing to give that a try this afternoon?

Suggs told the court, "Yes Your Honor."  

       The court then directed Suggs and his attorney to "come up with a way of 

communicating" with each other.

       Okay, then I would like the two of you to take some time this afternoon 
       and try to come up with a way of communicating one with each other, 
       showing respect for each other and patience with one another, and trying 
       to see if you can't develop a better interpersonal communication, and Mr. 
       Suggs if you are willing to try that then I will give the defense until Monday 
       morning to put together the list of witnesses.

       When the trial resumed on September 14, defense counsel informed the court 

that after further investigation and interviews, the defense did not intend to present 

pretrial evidence to rebut the admission of the two incidents under ER 404(b).  The 

court ruled that testimony from Haddow about the incident that occurred in April and the 

week before the charged crime was admissible under ER 404(b) and agreed to give a 

limiting instruction proposed by defense.  "It will ultimately be for the jury to determine if

those acts occurred beyond a reasonable doubt."

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No. 66348-8-I/6

       After Haddow testified, Suggs expressed dissatisfaction with his attorney's cross 
examination of her and asked the court to appoint new counsel.2 The court denied the 

motion, ruling that Suggs's attorney was providing effective assistance of counsel and 

there was no basis to change counsel mid-trial.  The court then informed Suggs that he 

could continue with existing counsel or represent himself.  Suggs said he wanted his 
defense counsel to stop representing him.3 After considering Suggs's request to 

represent himself, the court ruled the request was untimely.4

       The jury found Suggs not guilty on three counts: unlawful imprisonment, Count 2; 

felony harassment, Count 3; and interfering with domestic violence reporting, Count 4.  

On Count 1, the jury convicted Suggs of the lesser included offense of domestic 

violence assault in the third degree.  

                                          ANALYSIS

       Suggs claims he was denied his constitutional right to represent himself. Suggs 

asserts that his request to represent himself during the pretrial hearing on September 7 

was unequivocal and the trial court erred in failing to engage in a colloquy to determine 

whether the request was voluntary, knowing, and intelligent.  

       The United States Constitution, amendments VI and XIV, and the Washington 

       2 THE COURT: [W]hat essentially I am hearing Mr. Suggs say is he wants a different attorney.
        DEFENDANT:  Yes, Your Honor. . . . I just feel totally uncomfortable with the whole, 
       everything, this isn't true, and it just doesn't make sense to me how I don't know what's 
       going on.
       3 DEFENDANT:  I don't feel like even up to this point I don't feel (inaudible) up to this point I feel 
uncomfortable.
        THE COURT:  All right. I understand. You've made your position known. 
       4 The court ruled: 
       Given the stage that we are in in this trial and given the problems that we have with the 
       scheduling of these witnesses and the proceeding, if we were to stop right now and 
       consider anything further on the motion to represent yourself, I deem this to be an 
       untimely request to represent yourself.    
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No. 66348-8-I/7

Constitution, article I, section 22 (amend. 10), guarantee a criminal defendant the right 

to self representation.  See Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 45 

L. Ed. 2d 562 (1975); State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010).  

However, the right to self representation is not self-executing.  State v. Woods, 143 

Wn.2d 561, 586, 23 P.3d 1046 (2001).  It is well-established that a defendant's request 

to proceed pro se must be stated unequivocally and must be timely.  State v. 

DeWeese, 117 Wn.2d 369, 377, 816 P.2d 1 (1991). The demand must be unequivocal 

in the context of the record as a whole.  State v. Luvene, 127 Wn.2d 690, 698-99, 903 

P.2d 9960 (1995).  A request to waive assistance of counsel that indicates 

dissatisfaction with appointed counsel may indicate the request to proceed pro se is 

equivocal. Woods, 143 Wn.2d at 586-87.  

       If the court determines the request is unequivocal and timely, the court must 

then determine whether it is voluntary, knowing, and intelligent.  Madsen, 168 Wn.2d at 

504.  Although courts must honor a properly made request for self-representation, the 

court must also indulge in " 'every reasonable presumption' " against the defendant's 
waiver of the right to counsel. Madsen, 168 Wn.2d at 5045 (quoting In re Det. of Turay, 

139 Wn.2d 379, 396, 986 P.2d 790 (1999)). We review the trial court's denial of a 

request for self representation for abuse of discretion.  Madsen, 168 Wn.2d at 504. A 

trial court abuses its discretion when its decision is manifestly unreasonable or is 

based on untenable grounds.  State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 

(2003).  

       In the context of the record as a whole, we conclude that Suggs did not make an

       5 (Internal quotation marks and citation omitted.)

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No. 66348-8-I/8

unequivocal request to represent himself at the pretrial hearing on September 7. After 

Suggs expressed dissatisfaction with his attorney, the court asked Suggs whether he 

was asking to represent himself.  In response to the court's question, Suggs said, "I 

would love that," but did not affirmatively or unequivocally make a request to represent 

himself. 

       After Suggs's attorney told the court he would make an effort to better 

communicate with his client, Suggs agreed to continue to work with his attorney.  

Because Suggs did not make an unequivocal request to represent himself at the 

pretrial hearing on September 7, the court was not required to engage in a colloquy as 

to whether waiver was voluntary, knowing, and intelligent.  See Madsen, 168 Wn.2d at 
504.6

       Affirmed.

WE CONCUR:

       6 To the extent Suggs argues the court abused its discretion in denying his request to represent 
himself after Haddow testified, we reject that argument.  " 'If the demand for self-representation is 
made . . . during the trial or hearing, the right to proceed pro se rests largely in the informed discretion of 
the trial court.' " Madsen, 168 Wn.2d at 508 (quoting State v. Barker, 75 Wn. App. 236, 241, 881 P.2d 
1051 (1994)).  The trial court did not abuse its discretion in denying the request as untimely.

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