160 Wn. App. 374, IN RE DET. OF BERRY
[No. 64226-0-I. Division One. March 7, 2011.]
In the Matter of the Detention of JOHN WARREN BERRY, Appellant.
January 10, 2011, Oral Argument
Thomas M. Kummerow (of Washington Appellate Project), for appellant.
Robert M. McKenna, Attorney General, and Malcolm S. Ross, Assistant, for respondent.
Author: Anne Ellington, J.
We concur: Ann Schindler, J., C. Kenneth Grosse, J.Anne Ellington
1 ELLINGTON, J. -- John Berry challenges his commitment as a sexually violent predator, in part because the court admitted an expert's testimony without first conducting a Frye 1 hearing. But because the evidence implicated no novel scientific principle or procedure, no Frye hearing was required, and we affirm. In the unpublished portion of this opinion, we reject Berry's argument that he had an irreconcilable conflict with his assigned counsel.
1 Frye v. United States, 54 App. D.C. 46, 293 F. 1013, 1014 (1923).
BACKGROUND
2 Berry has been convicted of five sexually violent offenses, including second degree rape by forcible compulsion in 1975, second degree rape and kidnapping with a sexual motivation in 1979, and first degree rape with a deadly weapon and kidnapping with a sexual motivation in 1988. In February 2003, before Berry's release from prison on the 1988 convictions, the State filed a petition to commit Berry as a sexually violent predator (SVP) under chapter 71.09 RCW.
3 Before trial, Berry moved for summary judgment or, in the alternative, a Frye hearing to determine the validity of the State's expert's diagnosis of "paraphilia not otherwise specified (NOS) nonconsent." The court denied the motion.
4 At trial, the State presented the testimony of Dr. Amy Phenix, a clinical psychologist specializing in the evaluation of sex offenders. Dr. Phenix testified that Berry suffers from a personality disorder (severe antisocial personality disorder) and a mental abnormality (paraphilia NOS nonconsent, with sadistic traits), both of which cause him serious difficulty in controlling his behavior. Her diagnoses were based on Berry's criminal history, previous psychological or psychiatric evaluations, interviews she conducted with Berry in 2005 and 2009, and the criteria found in the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Text Revision (4th ed. 2000) (DSM-IV-TR). Dr. Phenix also relied upon various actuarial instruments for her conclusion that Berry was at high risk to reoffend if not confined.
5 Dr. Richard Wollert, a clinical psychologist specializing in the treatment of sex offenders, testified for Berry. He agreed that Berry has antisocial personality disorder. But Dr. Wollert testified that the paraphilia NOS nonconsent diagnosis is not commonly accepted in the psychological community, not defined in psychology, unreliable, and did not apply to Berry in any event.
6 A jury found Berry to be an SVP, and the court entered an order of commitment. He appeals.
DISCUSSION
[1] 7 Under Kansas v. Crane, 2 evidence is constitutionally sufficient to commit a sexual predator only if it is "sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case." The same standard applies under the Washington Constitution under In re Detention of Thorell. 3
2 534 U.S. 407, 413, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002).
3 149 Wn.2d 724, 72 P.3d 708 (2003).
[2] 8 "Paraphilia NOS nonconsent" is a condition that subjects a person to recurrent, intense sexually arousing fantasies, urges, or behaviors involving rape. 4 Berry argues this diagnosis does not satisfy the Crane standard because it does not satisfy Frye.
4 See Report of Proceedings (RP) (Sept. 17, 2009) at 326-33 (testimony of Dr. Phenix).
9 A similar argument was presented in In re Detention of Post. 5 But there, the appellant failed to challenge the evidence at trial and we declined to address the issue:
Post improperly attempts to transform that which should have been raised as an evidentiary challenge in the trial court into a question of constitutional significance on appeal. In point of fact, Post attempts to sidestep the fact that he did not seek a Frye hearing in the trial court, and, thus, has not preserved an evidentiary challenge for review. [6]
Like Post, Berry attempts to cast an evidentiary issue as one of constitutional significance. But unlike Post, Berry requested a Frye hearing. The issue is thus whether the hearing was properly denied.
5 145 Wn. App. 728, 754-56, 187 P.3d 803 (2008).
6 Id. at 755-56 (footnote omitted).
Standard of Review
[3] 10 Our Supreme Court has observed that "[i]t is not clear what standard of review should be applied to a trial court's decision not to conduct a Frye hearing at all." 7 In this case, the record indicates the court denied Berry's motion either because it concluded the diagnosis was already generally accepted in the scientific community or because the nature of the evidence simply was not subject to Frye. 8 In the former situation, de novo review is appropriate because the court resolved for itself the same question ultimately addressed after a Frye hearing. 9 The latter proposition presents a question of law. In either case, therefore, the de novo standard applies. 10
7 State v. Gregory, 158 Wn.2d 759, 830, 147 P.3d 1201 (2006).
8 In denying Berry's motion, the court expressed its reasoning as follows: "[W]ith respect to the diagnosis of paraphilia not otherwise specified and whether or not there needs to be a Frye hearing on that, obviously, I've tried a number of these cases and that is a diagnosis I hear. I understand there is a debate with respect to how it is applied, but I don't believe, and I'm going back to the case law as well, specifically In re [Pers. Restraint] of Young, [122 Wn.2d 1, 857 P.2d 989 (1993),] I don't believe that a Frye test is the arena to determine whether or not this diagnosis is appropriate and whether or not it can even be offered to the jury. I just don't think this is the context that a Frye hearing is appropriate for." RP (Feb. 27, 2009) at 25-26.
9 Gregory, 158 Wn.2d at 830.
10 Stone v. Sw. Suburban Sewer Dist., 116 Wn. App. 434, 438, 65 P.3d 1230 (2003) (questions of law reviewed de novo).
ANALYSIS
[4] 11 Frye applies when a party seeks to admit "evidence based upon novel scientific procedures." 11 Such evidence is admissible "'only if that theory or principle has achieved general acceptance in the relevant scientific community.'" 12 Frye's "'core concern . . . is only whether the evidence being offered is based upon established scientific methodology.'" 13
11 Young, 122 Wn.2d at 56 (citing Frye, 293 F. at 1014).
12 Id. (quoting State v. Martin, 101 Wn.2d 713, 719, 684 P.2d 651 (1984)).
13 Id. (alteration in original) (quoting State v. Cauthron, 120 Wn.2d 879, 889, 846 P.2d 502 (1993)).
[5-7] 12 We conclude Frye does not apply to Dr. Phenix's diagnosis. First, the proper focus of Frye is the science upon which the expert's opinion is founded. Here, the science at issue is standard psychological analysis. Dr. Phenix rendered her opinion based on Berry's offense and treatment history, his previous evaluations, interviews with Berry, the psychological literature including the DSM-IV-TR, and her own experience in the field. As the Supreme Court observed in In re Personal Restraint of Young nearly 20 years ago, nothing about this is novel:
The sciences of psychology and psychiatry are not novel; they have been an integral part of the American legal system since its inception. Although testimony relating to mental illnesses and disorders is not amenable to the types of precise and verifiable cause and effect relation petitioners seek, the level of acceptance is sufficient to merit consideration at trial. [14]
Berry presents nothing new about psychological/psychiatric evaluation or the paraphilia NOS nonconsent/rape diagnosis to call Young's holding into question.
14 122 Wn.2d 1, 57, 857 P.2d 989 (1993).
13 The courts of many other states have held that expert testimony from psychologists and psychiatrists about a sex offender's mental illness or abnormality is not subject to Frye. 15 The courts of this state have repeatedly upheld SVP commitments based upon this diagnosis. 16
15 See, e.g., Commonwealth v. Dengler, 2004 PA Super 38, 843 A.2d 1241, 1245 (agreeing with out-of-state cases and holding "that psychological or psychiatric testimony of an expert at an SVP proceeding is not novel scientific evidence subject to Frye"), aff'd, 890 A.2d 372 (2005); Westerheide v. State, 767 So. 2d 637, 657-58 (Fla. Dist. Ct. App. 2000) ("The admission of expert testimony from psychologists and psychiatrists for the purpose of predicting future dangerousness caused by mental illness or abnormalities is nothing new or novel to the law."); People v. Ward, 71 Cal. App. 4th 368, 373, 83 Cal. Rptr. 2d 828 (1999) ("Kelly-Frye applies to cases involving novel devices or processes, not to expert medical testimony, such as a psychiatrist's prediction of future dangerousness or a diagnosis of mental illness."); see also In re Det. of Bolton, 343 Ill. App. 3d 1223, 1228, 800 N.E.2d 128, 279 Ill. Dec. 286 (2003) (noting that "a psychologist's or psychiatrist's opinion as to an individual's future dangerousness is generally admissible when that opinion is based upon clinical observation or the evaluator's personal experience"); People v. Therrian, 113 Cal. App. 4th 609, 615-16, 6 Cal. Rptr. 3d 415 (2003) (Frye hearing not required where actuarial test was merely starting point and not sole basis for psychologist's opinion regarding offender's risk of recidivism); Logerquist v. McVey, 196 Ariz. 470, 1 P.3d 113, 123 (2000) ("Frye is inapplicable when a qualified witness offers relevant testimony or conclusions based on experience and observation about human behavior for the purpose of explaining that behavior.").
16 See Post, 145 Wn. App. at 756-57 & n.18 (collecting cases).
14 Though Berry identifies scientific criticism of the criteria and reliability of the diagnosis, he does not establish that it is no longer generally accepted. Dr. Phenix testified that critics, including Dr. Wollert, were among "two or three psychologists" who decry the diagnosis. 17
17 RP (Sept. 18, 2009) at 490.
15 Berry relies heavily on the fact that "paraphilia NOS nonconsent" is not included in the DSM-IV-TR. But the Young court specifically rejected the argument that paraphilia NOS nonconsent/rape was an "invalid" diagnosis, offensive to substantive due process, because it did not appear in the then-current edition of the Diagnostic and Statistical Manual (DSM):
"The fact that pathologically driven rape, for example, is not yet listed in the DSM-III-R[18] does not invalidate such a diagnosis. The DSM is, after all, an evolving and imperfect document. Nor is it sacrosanct. Furthermore, it is in some areas a political document whose diagnoses are based, in some cases, on what American Psychiatric Association . . . leaders consider to be practical realities. What is critical for our purposes is that psychiatric and psychological clinicians who testify in good faith as to mental abnormality are able to identify sexual pathologies that are as real and meaningful as other pathologies already listed in the DSM." [19]
Indeed, both Drs. Phenix and Wollert testified that rape paraphilia was proposed for inclusion in the DSM and rejected because of concern that criminal defendants would avoid punishment by claiming the affliction. That the diagnosis is nonetheless generally accepted is evident from the inclusion of paraphilic rape in the casebook "learning companion" to the DSM-IV-TR. 20
18 Young, 122 Wn.2d at 29 (referring to the American Psychiatric Ass'n Diagnostic and Statistical Manual of Mental Disorders (3d rev. ed. 1987) (DSM-III-R)).
19 122 Wn.2d at 28 (emphasis omitted) (quoting Alexander D. Brooks, The Constitutionality and Morality of Civilly Committing Sexually Violent Predators, 15 U. PUGET SOUND L. REV. 709, 733 (1992)).
20 Clerk's Papers at 733.
16 Moreover, as the State points out, "paraphilia NOS" does appear in the DSM-IV-TR. The DSM-IV-TR defines "paraphilia" as "recurrent, intense sexually arousing fantasies, sexual urges, or behaviors generally involving nonhuman objects, the suffering or humiliation of oneself or one's partner, or children or other nonconsenting persons that occur over a period of at least 6 months." 21 "Paraphilia not otherwise specified" is a "residual category in the DSM-III-R which encompasses both less commonly encountered paraphilias and those not yet sufficiently described to merit formal inclusion in the DSM-III-R." 22 The DSM-IV-TR provides a number of examples of paraphilia NOS but clearly states that the category is "not limited to" that list. 23 The omission of "nonconsent" or "rape" from these examples does not prove it is an invalid diagnosis. In fact, as Young points out, the seminal 1990 article on rape paraphilia "reviews the pertinent scientific literature and concludes that '[t]he weight of scientific evidence, therefore, supports rape of adults as a specific category of paraphilia'." 24
21 DSM-IV-TR at 566.
22 Young, 122 Wn.2d at 29 (referring to DSM-III-R).
23 DSM-IV-TR at 576 ("This category is included for coding Paraphilias that do not meet the criteria for any of the specific categories. Examples include, but are not limited to, telephone scatologia (obscene phone calls), necrophilia (corpses), partialism (exclusive focus on part of body), zoophilia (animals), coprophilia (feces), klismaphilia (enemas), and urophilia (urine).").
24 Young, 122 Wn.2d at 30 n.6 (alteration in original) (quoting Gene G. Abel & Joanne-L. Rouleau, The Nature and Extent of Sexual Assault, in HANDBOOK OF SEXUAL ASSAULT: ISSUES, THEORIES AND TREATMENT OF THE OFFENDER 9, 19 (W.L. Marshall et al. eds., 1990)).
17 The trial court properly denied Berry's motion for a Frye hearing. His arguments thus went to the weight of the evidence, not its admissibility. 25 Berry cross-examined Dr. Phenix about the diagnosis and presented his own expert to testify to its shortcomings. There was no evidentiary error and no violation of due process.
25 See Thorell, 149 Wn.2d at 756 (use of actuarial instruments to predict future dangerousness not subject to Frye; arguments against them "go to the weight of the evidence rather than its admissibility and are to be assessed under ER 702 and ER 703"). Berry does not challenge the evidence under ER 702 or ER 703.
18 We affirm.
19 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040.
20 Berry also contends the court erred in denying his request for substitute counsel. We review the decision for abuse of discretion. 26
26 State v. Schaller, 143 Wn. App. 258, 260, 177 P.3d 1139 (2007).
BACKGROUND
21 During the six years that his case was pending, 27 Berry lodged several complaints concerning his various appointed counsel and repeatedly sought substitution. After his initial and first substitute counsel withdrew, attorneys Thomas Cox and Michael Kahrs represented Berry. Eventually, both Berry and his attorneys requested that substitute counsel be appointed. The court refused.
27 The matter was delayed by a number of continuances, including a 14 month continuance to allow Berry to receive treatment for hepatitis.
22 When the State filed its petition in 2003, Berry was represented by attorney Martin Mooney. Berry immediately requested new counsel, alleging Mooney had provided ineffective representation, was unethical and untruthful, had withheld discovery, and that there was a complete breakdown in communication. Judge Thomas Wynne addressed Berry's motion at the probable cause hearing. Berry insisted he would not speak to Mooney. Mooney explained the delays in providing Berry certain transcripts and materials, denied lying to Berry, and confirmed that Berry would not speak to him despite his efforts. The court did not believe Mooney had lied to Berry. Noting that the breakdown in communication was entirely one-sided, the court denied Berry's request for substitute counsel.
23 In January 2004, Mooney moved to withdraw from the representation because Berry refused to speak to him and had threatened to file bar complaints and federal lawsuits against him. The court allowed Mooney to withdraw and Harvey Chamberlin took over.
24 Meanwhile, attorney Michael Kahrs was representing a class of inmates in a civil suit against the Department of Corrections alleging they were falsely imprisoned under In re Personal Restraint of Capello. 28 Berry was a member of this class. Kahrs associated with Chamberlin in April 2006 expressly to file a motion to dismiss the SVP petition on grounds that the Department of Corrections had unlawfully detained Berry past his release date and then filed a civil commitment petition. Once the court denied the motion to dismiss, Kahrs withdrew from the case.
28 106 Wn. App. 576, 582-85, 24 P.3d 1074 (2001) (holding Department of Corrections lacked authority to require offender to obtain preapproved residence location and living arrangement before transfer to community custody in lieu of early release) (expressly superseded by 2002 amendments to RCW 9.94A.728).
25 In May 2007, attorney Thomas Cox associated with Chamberlin on Berry's case. In October, Chamberlin withdrew for health reasons. In December, Kahrs associated with Cox. Berry objected to appointment of Cox and Kahrs because neither of them had SVP commitment trial experience, but did not move for substitute counsel. Berry agreed that Cox and Kahrs were competent.
26 Berry expressed concerns about Kahrs and Cox in a March 10, 2009 letter to the court. Berry stated that Kahrs and Cox had not yet conducted any depositions, had not provided him a copy of his own deposition, and had not returned his calls. Berry also indicated he did not understand why attorney Chamberlin was no longer representing him and why Kahrs was on the case when he had formally withdrawn months earlier.
27 Judge Fair held a hearing on the matter on April 15, 2009. Berry reiterated his confusion about Chamberlin and asserted that Kahrs had been removed from his case "because of some issues with some dishonesty on his behalf." 29 The court reminded Berry that Chamberlin had retired because of medical problems and that Cox and Kahrs had been representing him for some time with no objection from Berry. Kahrs explained his past involvement with Berry's case and denied any dishonesty. The court agreed there was nothing to support Berry's assertion in that respect. Berry nevertheless stated he would file a motion to have Cox and Kahrs removed and would no longer speak to counsel. The court advised Berry that his case "has been litigated as aggressively and in your interest as any of the other sexual predator civil commitment cases," and the court had "no concerns at all with respect to the quality of your representation." 30
29 RP (Apr. 15, 2009) at 6.
30 Id. at 10.
28 Berry filed a motion to substitute counsel in May 2009, alleging he was embroiled in an irreconcilable conflict with counsel. He asserted counsel had not attempted to have the petition dismissed, failed to obtain an investigator who would work with Berry, had not stayed in contact about the case, and failed to respond to communication. Berry also stated that counsel had withheld documents from him and would not allow him to participate in forming defense strategy. He argued the relationship had deteriorated to such an extent that he did not trust them to adequately represent his interests.
29 Judge Fair held a hearing on Berry's motion on June 22, 2009. At that time, the trial was set to begin September 14. The court indicated it had read the motion and asked Berry if he had anything to add. Berry stated, "Well, it's pretty much all repetitive, because we've talked about this before, basically." 31 Nevertheless, Berry reiterated his confusion about Chamberlin's withdrawal and elaborated on his dissatisfaction with Cox and Kahrs, emphasizing their failure to provide him certain documents. The court asked Berry to clarify which documents he had not been given. Berry again asserted that Kahrs had been removed from his case for dishonesty and insisted he would not work with Cox and Kahrs. He also complained that his counsel allowed Dr. Phenix to inquire about and include in her report crimes he had in fact not committed. 32
31 RP (June 22, 2009) at 2.
32 The State had inadvertently provided Dr. Phenix with documents pertaining to a different John Berry.
30 Cox stated that Berry refused his visits. Cox had made a point to personally answer Berry's calls or to call him right back. He noted Berry's severe antisocial personality disorder and said he and Kahrs had been working "within that disability" to represent him. 33 Contrary to Berry's assertions, they had deposed multiple people and had been in contact with all the witnesses they could find except for those Berry had forbidden them to contact. Cox also explained that he actually stopped Dr. Phenix from asking about the crimes Berry had not committed and planned to redepose her about her report and to impeach her testimony by pointing out the mistake.
33 RP (June 22, 2009) at 10.
31 Kahrs again explained his past involvement in the case and that he had attempted to have Berry's petition dismissed. Cox and Kahrs also stated they had provided Berry with transcripts of every deposition they had conducted, though they had not yet provided Berry with the video.
32 The court denied Berry's motion. Judge Fair stated that Berry's counsel "are representing him at least as vigorously, if not more so, as any other SVP case that I have presided over." 34 Specifically:
They have brought numerous motions both while I have been presiding on the case and while Judge Wynne was presiding on the case. They have moved to dismiss both in front of Judge Wynne and in front of myself and apparently have moved to appeal those rulings. They have conducted depositions. They have investigated. They have asked for funding[ ] for investigators, for experts. I mean, there legitimately can be no quarrel with the quality and nature of their representation. [35]
The court also noted that "it is likely that a substitution of counsel would lead to delay, but I think the Court does not even get there, because there is just nothing wrong with the counsel that Mr. Berry has." 36
34 Id. at 23-24.
35 Id. at 24.
36 Id. at 25.
33 The court thus found the motion was not well founded, cautioning Berry that it would be in his interests to cooperate with counsel and that he could not create a conflict simply by refusing to participate in his defense.
34 Berry wrote to the court again in August 2009, alleging that Cox and Kahrs "allowed [State's expert] Amy Phenix to add several charges to my case." 37 Berry also complained that Cox told the court that he was antisocial. He requested a continuance so that the issues with counsel could be dealt with.
37 Clerk's Papers at 358.
35 The court evidently held an ex parte hearing to discuss Berry's letter and counsel's concerns about his health. 38
38 Because the record before us contains no transcript of this hearing, we do not know what transpired. Indeed, we know it occurred only because at a subsequent hearing, the prosecutor objected to it. See RP (Sept. 10, 2009) at 2.
36 On September 8, 2009, four weekdays before trial was set, Cox and Kahrs moved to withdraw or continue trial so that a guardian ad litem could be appointed. Counsel represented that Berry's health was in significant decline, which caused them to question his competency and implicated his risk of future dangerousness.
37 The court held a hearing on the matter on September 10. Cox explained that he and Kahrs were advised by an ethics expert they should move to withdraw "because of the irreconcilable differences that he placed on the record I believe on April 15th and June 22nd, and the fact that he refuses to communicate with counsel." 39 Counsel wanted a guardian ad litem appointed to facilitate access to Berry's health records, to which he refused to grant them access.
39 Id. at 4.
38 When Berry addressed the court, he spoke primarily about his health. He denied that he was incompetent and asserted, "I understand full well what's going on here." 40 Berry also addressed the issues with counsel:
We have some issues. We're not communicating. I've stressed that three or four times. . . . I've had some conflict with these gentlemen. Someone indicated I called Mr. Kahrs a liar. That's not true. . . . We've had our troubles, and I think it's best that we part. You know what I'm saying? I really do. I'm not trying to downgrade these gentlemen for the work that they've done, but we've had some issues. [41]
Berry then returned to discussing his health and spoke no more about counsel.
40 Id. at 15.
41 Id. at 20.
39 The State opposed the motion, pointing out there was no evidence of further deterioration of his relationship with counsel since the last hearing on the matter and no evidence that Berry lacked competence.
40 The court denied the motion to withdraw:
So I don't see any basis for the withdrawal of counsel at this time. I think counsel have brought the issue to the attention of the Court. They've fulfilled their ethical obligation. The fact that Mr. Berry is uncooperative does not bar the matter proceeding to trial.
It's clear that Mr. Berry doesn't want to have a trial in this case. And it appears to me, from my prior experience, that Mr. Berry would sooner not have a trial ever in this case. But the matter has been pending six years, and I think it's time we got the issue before a jury. [42]
42 Id. at 44-45.
ANALYSIS
41 To warrant substitution of counsel, Berry must show good cause, "such as a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication." 43 It is not enough that a defendant has lost confidence or trust in his attorney; "[c]ounsel and defendant must be at such odds as to prevent presentation of an adequate defense." 44
43 Schaller, 143 Wn. App. at 267-68.
44 Id. at 268.
42 In deciding whether to grant a motion to substitute counsel, the trial court considers "(1) the reasons given for the dissatisfaction, (2) the court's own evaluation of counsel, and (3) the effect of any substitution upon the scheduled proceedings." 45 To determine whether the court erred in failing to substitute counsel on the basis of an irreconcilable conflict, the reviewing court considers "(1) the extent of the conflict, (2) the adequacy of the inquiry, and (3) the timeliness of the motion." 46
45 State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997).
46 In re Pers. Restraint of Stenson, 142 Wn.2d 710, 724, 16 P.3d 1 (2001).
43 Our first consideration in reviewing the court's denial of a motion to substitute counsel is the nature and extent of the conflict. The conflicts Berry articulated were unfounded. Berry argued counsel should have attempted to have the petition dismissed. Counsel had already made several such attempts. Berry argued counsel had not delivered certain materials, including videotaped depositions. But his attorneys had provided him the entire court file, all discovery received from the State, and transcripts of all depositions. They were working to provide the video in a format Berry could view as well. Berry maintained that Kahrs had previously been removed from his case for dishonesty. There was no evidence of that. Berry alleged a total breakdown in communication, but that was entirely one-sided. Berry complained that his counsel allowed the State's expert to "add several charges to [his] case." 47 That is, of course, untrue and, in any event, Cox explained how they would address the errors in Dr. Phenix's report.
47 Clerk's Papers at 358.
44 Berry contends the conflicts he experienced with counsel are comparable to those at issue in United States v. Moore 48 and United States v. Nguyen. 49 They are not. In Moore, the defendant requested substitute counsel after his attorney failed to inform him of the government's rejection of his counter offer to plead guilty. 50 The defendant also believed counsel failed to investigate his defense, interview defense witnesses or otherwise adequately prepare for trial. 51 The conflict rose to the level that the defendant threatened to sue the attorney for malpractice and the attorney felt physically threatened. 52 Here, Berry's only complaints about the quality of representation were demonstrably untrue and the court, counsel, and prosecutor all made Berry aware of that. The record indicates Berry and his counsel interacted in court without rancor, and Berry never threatened to sue Cox and Kahrs (unlike his first attorney, Mooney).
48 159 F.3d 1154 (9th Cir. 1998).
49 262 F.3d 998 (9th Cir. 2001).
50 159 F.3d at 1156, n.2.
51 Id.
52 Id. at 1159.
45 Nguyen is also easily distinguishable. There, a nonEnglish speaking defendant repeatedly asked to substitute privately retained counsel for his public defender with whom he had ceased communicating. 53 Nguyen offered witnesses to support his claims about his attorney's conduct, and a privately retained attorney actually came to court, but upon learning that trial was to begin that day was unable to represent Nguyen. 54 The court did not pursue any of Nguyen's allegations and did not afford Nguyen a full hearing on the issue. 55 Rather, the court decided the issue at a pretrial hearing at which Nguyen was not present. The only fact similar to this case is that Nguyen, like Berry, refused to speak to counsel. But this is insufficient in and of itself to constitute an irreconcilable conflict. "It is well settled that a defendant is not entitled to demand a reassignment of counsel on the basis of a breakdown in communications where he simply refuses to cooperate with his attorneys." 56
53 Nguyen, 262 F.3d at 999-1001.
54 Id. at 999.
55 Id. at 1002.
56 Schaller, 143 Wn. App. at 271.
46 The second issue is whether the court conducted an adequate inquiry into Berry's relationship with counsel. "[A] trial court conducts an adequate inquiry by allowing the defendant and counsel to express their concerns fully. . . . Formal inquiry is not always essential where the defendant states his reasons for dissatisfaction on the record." 57 The inquiry must provide a " 'sufficient basis for reaching an informed decision.' " 58
57 Id. (footnote omitted).
58 United States v. Adelzo-Gonzalez, 268 F.3d 772, 777 (9th Cir. 2001) (quoting United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986)).
47 The court's inquiry was sufficient. Because Berry had written the court two letters and made one formal motion detailing his complaints, a searching inquiry was unnecessary to provide the court an adequate basis for reaching a decision. Nevertheless, the court held at least two hearings at which Berry was able to fully articulate his concerns. 59 The court sought counsel's response and inquired specifically into Berry's complaints about materials being withheld.
59 It is unclear whether or to what extent Berry addressed issues with counsel at the untranscribed ex parte hearing in August or September 2009.
48 Berry argues the court's inquiry on September 10 was inadequate because the court's focus was on Berry's health rather than his complaints about counsel. But the court had conducted a hearing devoted to the counsel issue less than three months before, and neither Berry nor his counsel could articulate any new basis for substitution of counsel.
49 Based upon its inquiry into the nature of the conflict, the court was satisfied that it would not hinder counsel's representation. The court recorded its positive evaluation of counsel's performance, stating that "there legitimately can be no quarrel with the quality and the nature of their representation." 60
60 RP (June 22, 2009) at 24.
50 The last issue is the timeliness of the motion and its effect on the scheduled proceedings. Without any reference to the record, Berry asserts the motion was timely made. Berry's May 2009 motion to substitute counsel came only four months before trial in a case that had dragged on for six years. By that point, Kahrs had been representing Berry for over a year and Cox had done so for two. Cox and Kahrs filed their motion to withdraw only four days before trial. Granting either of the motions would have resulted in another delay of a matter that had already been pending for several years. The court properly denied Berry's motion for substitute counsel.
51 We affirm.
GROSSE and SCHINDLER, JJ., concur.