State v. Fisher
State v. Fisher
Opinion of the Court
¶1 A trial court found Troy Fisher guilty of first degree murder for the shooting of his father, Edward Fisher. Troy
¶2 The State charged Troy with first degree premeditated murder or, in the alternative, first degree felony murder with the predicate offense of first degree robbery. For the same incident, the State also charged Troy with one count of second degree murder. The State alleged four aggravating factors, including that Troy demonstrated an egregious lack of remorse in the commission of the offense, the only aggravating factor that is relevant to this appeal.
¶3 Initially, the State appointed Gregg Schile to represent Troy. Schile represented Troy for over a year, filing several motions in his defense. Nevertheless, Troy requested new counsel. The trial court then appointed Charles Buckley to represent Troy, but Troy became dissatisfied with Buckley’s performance as well and demanded to represent himself.
¶4 The trial court conducted an extensive colloquy with Troy regarding his wish to represent himself.
¶5 Buckley subsequently moved to withdraw as standby counsel because Troy filed a grievance against him with the Washington State Bar Association. The court permitted Buckley to withdraw and appointed Bob Yoseph to serve as standby counsel. Troy also waived his right to a jury trial.
¶7 After reminding Troy about the extensive colloquy that it held when he initially requested to represent himself, the trial court concluded that Troy’s request to reappoint counsel was untimely. The trial court did, however, grant a short continuance over the State’s objection so that Troy could consult with his standby counsel over a weekend.
¶8 When trial resumed, Yoseph moved for a mistrial over Troy’s objection, urging the trial court to rule that Troy was both technically as well as mentally incapable of self-representation based on his (Yoseph’s) interactions with Troy.
¶9 The trial court found Troy guilty of first degree murder under both of the two charged alternatives. The
ANALYSIS
Request To Reappoint Counsel
¶10 Troy argues that the trial court violated his constitutional right to counsel when it denied his motion to order standby counsel to take over the defense of his case. We hold that Troy’s claim fails because the decision to reappoint counsel is wholly discretionary with the trial court and the trial court did not abuse its discretion in denying Troy’s request for reappointment of counsel as untimely.
¶11 The United States and Washington Supreme Courts recognize a constitutional right of criminal defendants to waive assistance of counsel and to represent themselves at trial. Faretta v. California, 422 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010). But once an unequivocal waiver of counsel has been made, the defendant may not later demand the assistance of counsel as a matter of right because reappointment is wholly within the discretion of the trial court. State v. DeWeese, 117 Wn.2d 369, 376-77, 816 P.2d 1 (1991).
¶12 Although not required under either the state or federal constitutions, a trial court may appoint standby counsel to aid a pro se defendant at the defendant’s request. State v. McDonald, 143 Wn.2d 506, 511, 22 P.3d 791 (2001). Our Supreme Court “has defined standby counsel’s role as not necessarily representing the defendant but as providing technical information.” McDonald, 143 Wn.2d at 511; see also State v. Bebb, 108 Wn.2d 515, 525, 740 P.2d 829 (1987).
¶13 Here, Troy contends that because Yoseph admitted that he was not prepared to take over Troy’s representation
¶14 In McDonald, our Supreme Court framed the issue presented as whether an actual conflict of interest between standby counsel and a defendant merits an assumption of prejudice justifying reversal of the trial court’s decision. 143 Wn.2d at 510. The McDonald court held that when the trial court knows or should know of a conflict of interest between the defendant and standby counsel, it must conduct an inquiry into the nature and extent of the conflict. 143 Wn.2d at 513. Failure to make such an inquiry and take appropriate action constitutes reversible error, and prejudice will be presumed. McDonald, 143 Wn.2d at 513. Here, there is no alleged conflict of interest between Troy and Yoseph; thus McDonald is inapposite.
¶15 Troy also relies on Bebb to support his argument. The issue in Bebb was whether the trial court’s speculative statement that the attorney-client privilege did not apply to discussions between a pro se defendant and standby counsel ultimately compelled Bebb to relinquish his constitutional right to representation. 108 Wn.2d at 524. The court held that the record did not support Bebb’s claims that the trial court’s statement interfered with his standby counsel’s legitimate functions and that Bebb was ably represented by counsel throughout the trial. Bebb, 108 Wn.2d at 526.
¶16 Nonetheless, Bebb is instructive concerning when it may be appropriate to reappoint standby counsel. In that case, there were lingering concerns regarding Bebb’s mental competence to stand trial and to represent himself. Bebb, 108 Wn.2d at 519. Before his trial began, the court
¶17 Here, unlike Bebb, the trial court expressed no concern as to whether Troy had the mental capacity either to stand trial or to assert his right to self-representation. Accordingly, because those concerns were not present here as they were in Bebb, standby counsel was not instructed to be ready at a moment’s notice to assume responsibility for Troy’s defense. Thus, there was no indication that termination of Troy’s self-representation was necessary here.
¶18 To the contrary, the trial court here refused to declare a mistrial based on the assertion that Troy was not technically or mentally able to represent himself, and the court agreed that standby counsel was appointed to render technical assistance only. Although there were certainly concerns about Troy’s technical, legal efficacy, there were no concerns about Troy’s mental capabilities. And although the trial court did mention its reservations regarding Yoseph’s ability to represent Troy at such a late stage in the trial, the court’s decision not to reappoint counsel rested primarily on the fact that trial was nearly over — not that Yoseph was incapable or unprepared — and, therefore, in the court’s view, the motion was untimely.
¶19 Our decision in State v. Canedo-Astorga, 79 Wn. App. 518, 903 P.2d 500 (1995), offers an apt comparison. There, the trial court granted Canedo-Astorga’s motion to represent himself, but designated his appointed attorney as standby counsel. Canedo-Astorga, 79 Wn. App. at 521-22. During the trial, Canedo-Astorga’s codefendant moved for
¶20 We held that the trial court did not abuse its discretion by declining to reappoint Canedo-Astorga’s standby counsel because the request was made in the midst of a trial and the only reason it was made was because of Canedo-Astorga’s own ineptitude, which was the very reason the trial court originally tried to dissuade him from representing himself. Canedo-Astorga, 79 Wn. App. at 526. Canedo-Astorga also continued to have standby counsel to answer his questions. Canedo-Astorga, 79 Wn. App. at 526. In so holding, we said that “the request for reappointment should be granted absent reasons to deny. In some cases, however, there will be reasons to deny — for example, that the request comes on the eve of or during trial, and will delay or interrupt the trial if granted.” Canedo-Astorga, 79 Wn. App. at 525 (emphasis added).
¶21 The facts here are similar. Troy knowingly and voluntarily moved to represent himself. After an extensive colloquy, the trial court granted his motion and appointed standby counsel. After the State presented its entire case and rested, Troy then requested reappointment of counsel due to his technical inability to represent himself. The trial court rejected Troy’s motion as untimely. Accordingly, we hold that Troy had not established that reappointment of counsel was necessary and, therefore, the trial court did not abuse its discretion by denying Troy’s untimely motion to reappoint standby counsel.
We refer to Edward and Troy Fisher by their first names for clarity, intending no disrespect.
Troy does not allege that this Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), colloquy was insufficient on appeal.
Yoseph also suggested, however, that the court should conduct some investigation into Troy’s mental health generally. But Troy withdrew his claim that the trial court erred by failing to order a competency evaluation after standby counsel placed Troy’s mental capacity in question. Wash. Court of Appeals oral argument, State v. Fisher, No. 45129-8-II (Mar. 30, 2015), at 0 min., 26 sec. through 0 min., 32 sec. (on file with court). Accordingly, references herein to Troy’s mental health are related only to his ability to represent himself.
Without fully developing his argument, Troy suggests that standby counsel was also ineffective for failing to be prepared to take over his defense on a moment’s notice. Because Troy fails to show that reappointment of counsel was necessary as we have explained, we reject this argument.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.