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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
                                       DIVISION ONE

STATE OF WASHINGTON,                        )       No.  67566-4-I
                                            )
                      Respondent,           )
          v.                                )       UNPUBLISHED OPINION
                                            )
JORDAN D. KNIPPLING,                        )
                                            )
                      Appellant.            )       FILED:  January 17, 2012

       Schindler, J.  --  The State charged Jordan D. Knippling with two counts of 

custodial assault.  At the conclusion of the first trial, the jury was unable to reach a 

unanimous verdict and the court declared a mistrial.  Knippling appeals his convictions 

claiming the trial court abused its discretion by denying his request to represent himself 

in the first trial.  Because the request was equivocal and, in any event, Knippling cannot 

establish prejudice, we reject his argument.  We also reject Knippling's argument that 

the court erred in declaring a mistrial, and affirm.

                                            FACTS

       In 2009, Knippling was an inmate at the Washington Corrections Center in 

Shelton.  On March 3, Knippling approached Officer Christopher Farringer and 

punched him in the face several times.  Corrections Officer Juan Barcelona tried to get 

No.  67566-4-I/2

Knippling away from Officer Farringer, but Knippling resisted his attempts by punching

Officer Barcelona repeatedly in the head.  Eventually, Officer Barcelona and Officer 

Farringer were able to restrain Knippling.  

       The State charged Knippling with two counts of custodial assault in violation of 

RCW 9A.36.100(1)(b).  Knippling pleaded not guilty and asserted an insanity or 

diminished capacity defense.  After an evaluation at Western State Hospital, Knippling 

abandoned the defense of insanity or diminished capacity.  

       Prior to the first trial, Knippling asked the court on several occasions to appoint a 

different attorney based on lack of communication and disagreements about strategy.  

The court denied the requests to appoint a new attorney.  

       On the first day of trial, Knippling frequently addressed the court directly rather 

than through his attorney.  When the court instructed Knippling to let his attorney speak 

for him, Knippling asked the court to appoint his attorney as standby counsel, but made 

clear that he did not want to represent himself pro se. 

       But yes, I -- I would ask not to go pro se because that would be a stupid 
       thing because without an attorney I would have -- I am not good enough 
       to go against the court of law with -- by myself.  But I would like to do a 
       standby counsel where I'm able to, you know what I'm saying, dictate 
       what motions we are filing and what -- what we are doing.  
              And what I -- really what I -- I need to do is -- here is reopen, you 
       know what I'm saying, because I was not allowed in these -- these matters -- 
       is to reopen some of these, you know, proceedings so I can make my 
       motions here.  He's not making any motions for me, so I'm going to have 
       to try to make my motions myself.  But I'm not equipped to try to do my 
       motions by myself.  But I do have the, you know what I'm saying, authority 
       to dictate what I'm going to do.  
              But if you would please appoint him as standby counsel for me.  
       And I as the lead counsel here.  That would be, you know what I'm saying, 
       greatly appreciated.

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No.  67566-4-I/3

       The court denied Knippling's motion to appoint standby counsel. "[A]t the eve of 

trial I'm not going to allow the posture to change and have you represent yourself with 

standby [counsel] because that really changes the complexity of what occurs here."  

However, after the court ruled, Knippling's attorney made a motion to withdraw based 

on a breakdown in communication and Knippling's repeated threats to sue him.  The 

court granted the motion.  The court then asked Knippling whether he was requesting 

the court to appoint another attorney or whether Knippling wanted to proceed pro se.  

Knippling told the court he did not want to represent himself and asked the court to 

appoint another attorney to represent him.

              The Court:  Are you asking to now have the possibility of 
       representing yourself, or are you asking for a different attorney?
              Mr. Knippling:  I really do -- 'cause I know that I am not a person 
       that can represent myself.  But you know what I'm saying, I'm not a 
       person that is too picky, too choosy.  All I would like to do is, you know 
       what I'm saying, be a part of the proceeding that's going on, you know 
       what I mean  And I feel that I am disconnected from the proceedings 
       through my attorney.  We -- we don't have communications at all.
              The Court:  So you want another attorney?
              Mr. Knippling:  I -- I would -- yes, I would love to have another 
       attorney.

The court appointed new counsel and scheduled a new trial date.

       At a pretrial hearing in January 2010, Knippling again addressed the court 

directly and refused to let his attorney speak for him.  The court told Knippling that he 

needed to let his attorney address the court.  "It's not time for you to speak.  I'll listen to 

[your attorney] about your issues."  

       At another pretrial hearing on January 22, Knippling interrupted several times, 

attempting to argue his own motions.  The court stopped Knippling and told him that

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No.  67566-4-I/4

"the Court can't allow you to represent yourself and your attorney also to represent 

you."  In response, Knippling said he wanted to file a motion to "go pro se with standby 

counsel." The court instructed Knippling to file a motion in writing and Knippling's 

attorney agreed to file the motion for him.

       At the next hearing, the court addressed Knippling's request to represent himself

pro se and engaged in a colloquy. But apparently, the hearing was not recorded.  At 

the hearing on February 9, the court notes that it engaged in a colloquy with Knippling 

at the previous hearing and a power outage occurred during the hearing. Based on the 

colloquy at the previous hearing, the court ruled that Knippling's request to represent 

himself was equivocal and denied the motion.    

       I know that when he was last before the Court we took a brief recess and 
       we lost our power, not just in the courthouse, but all around the City of 
       Shelton.  And it took awhile for that to come back on.  And in the 
       meantime it was a matter that the Court needed to get going on other 
       matters.  So Mr. Knippling went back to his current location for housing 
       and is back today to complete that hearing and the pretrial.
              The Court had heard a motion to allow Mr. Knippling to proceed 
       pro se, and had had a discussion, or we call it a colloquy with Mr. 
       Knippling.  And it was clear that it was not an unequivocal request; that he 
       really did want counsel.  He just did not want to work with [his appointed
       attorney].
              . . . .
              . . . And based upon that, the Court had indicated that his motion to 
       proceed pro se was denied.

       After the court ruled, Knippling told the court: "Before we move on, I'm going to 

say that I'm just going to [go] pro se.  I don't care, I'm just going to go pro se . . . this 

case is still open, it's still the same hearing. I would like to go pro se."  The court 

denied Knippling's motion to reconsider.

       The trial began on March 2.  Before jury selection, Knippling demanded that the 

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No.  67566-4-I/5

court allow him to represent himself. After the court denied the motion, Knippling 

continued to disrupt the proceedings with obscenities and offensive hand gestures, 

resulting in his removal from the courtroom.    

       After the jury was unable to reach a unanimous verdict, the court declared a 

mistrial and scheduled a new trial date.  The second trial began on May 12.  At the 

beginning of the trial, the court expressly states that Knippling did not make a request 

to represent himself in the retrial.  "And I should make also a record, he did not indicate 

that he wanted to represent himself."  The jury found Knippling guilty of two counts of 

custodial assault.  

                                          ANALYSIS

       Knippling appeals his convictions, arguing that he was denied his constitutional 

right to represent himself.  Knippling asserts that the court did not engage in an 

adequate colloquy to determine whether his request to represent himself was 

unequivocal.  

       Criminal defendants have a right to represent themselves at trial under both the 

Sixth Amendment to the United States Constitution and under article I, section 22 of the 

Washington Constitution.  State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010).  

The denial of a request for pro se status is reviewed 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).  The defendant's request to proceed pro se must be timely 

and must be stated unequivocally.  State v. DeWeese, 117 Wn.2d 369, 377, 816 P.2d 

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No.  67566-4-I/6

1 (1991). Although courts must honor a properly made request for self-representation, 

they must also indulge in " 'every reasonable presumption' " against the defendant's 

waiver of the right to counsel. Madsen, 168 Wn.2d at 504 (quoting In re Det. of Turay, 
139 Wn.2d 379, 396, 986 P.2d 790 (1999)).1

       Here, even if the colloquy the court engaged in with Knippling in determining 

whether to grant his motion to represent himself was inadequate, the remedy is a new 

trial.  Madsen, 168 Wn.2d at 503. Because the first trial resulted in a mistrial, Knippling 

received a new trial.  And the record establishes that on retrial, Knippling did not ask to 

represent himself pro se.

       In his statement of additional grounds, Knippling contends that because the 

court improperly declared a mistrial, double jeopardy barred a retrial.  "The double 

jeopardy clause of the Fifth Amendment protects the criminal defendant from repeated 

prosecutions for the same offense." State v. Juarez, 115 Wn. App. 881, 886, 64 P.3d 

83 (2003). It also protects the right of the defendant to be tried by the jury he selected. 

State v. Jones, 97 Wn.2d 159, 162, 641 P.2d 708 (1982).

       When a trial court grants a mistrial without the defendant's consent and after 

jeopardy has attached, retrial is barred by double jeopardy principles unless the mistrial 

was justified by manifest necessity. Juarez, 115 Wn. App. at 889.  A jury that is 

deadlocked is a manifest necessity justifying discharge.  Jones, 97 Wn.2d at 164. We 

accord great deference to a trial court's decision to discharge a jury due to deadlock.  

Jones, 97 Wn.2d at 163.

       Here, after several hours of deliberations, the jury informed the court that they 

       1 (Internal quotation marks and citation omitted.)

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No.  67566-4-I/7

were unable to reach a unanimous verdict.  After determining there was no "reasonable 

probability that within a reasonable period of time of continued deliberations that the 

jury 

would be able to reach a unanimous verdict," the court declared a mistrial.  The record 

supports the decision to grant a mistrial and discharge the jury.  Jones, 97 Wn.2d at 

164.

       We affirm.

WE CONCUR:

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