Mr. Chhim was convicted of two separate crimes in two consecutive trials involving two different alleged victims. Mr. Chhim appealed on the grounds: 1) the trial court denied his motion to represent himself and 2) jurors in the second trial saw juror notes left over from the first trial! The Court of Appeals for Division II agreed with both arguments, reversed Mr. Chhim’s conviction, and remanded his matters for new trial. This is a very long opinion that extensively examines the trial transcript (49 pages). The right to proceed as a “self-represented litigant” is recognized as an “explicit constitutional right” under the Washington State Constitution. State v Madsen 168 Wn.2d 496, 503 (2010). The request to proceed pro se must be timely, unequivocal, voluntary, knowing, and intelligent. State v Curry, 191 Wn.2d 475, 486 (2018).
The trial court believed Mr. Chhim was equivocal because of his indecisiveness requesting an interpreter. Division II held that a request for an interpreter has no bearing on a request for self-representation. Mr. Chhim did submit a letter to the trial court requesting substitute counsel, but he previously made it “unequivocally” clear he “wanted to represent himself,” even after the trial judge advised him about a potential life sentence if convicted and the applicability of court procedure and rules of evidence.
After the trial court received Mr. Chhim’s letter about “substitute counsel,” the judge asked “unequivocally, what it is you’re seeking.” Mr. Chimm’s response was “I’m asking the Court to allow me to represent myself. This charge is very severe, and I want to represent myself.” The trial judge was understandably confused when Mr. Chhim later stated in his colloquy that “I’m asking to have a new attorney; the new attorney is me. I want to withdraw my letter, your honor, my request.” Division II found the trial court abused its discretion because its denial of Mr. Chhim’s request was unsupported by the record.
The State claimed Mr. Chhim “abandoned” or “waved” his right to self-representation by acquiescing to the appointment of standby counsel by the trial judge. The appellate court strongly disagreed, finding the State’s case authority highly distinguishable because Mr. Chhim was never allowed to represent himself; the State cannot “explain how Chhim can be deemed to have abandoned a request that had already been denied.” [pg. 37] The Court initially found Mr. Chhim “knowingly and voluntarily” waived the right to co counsel [pg. 41] but reversed itself when the State urged reconsideration. The trial court then inappropriately relied on factors found in State v. Hampton, 184 Wn.2d, 670 (2015), which Division II determined involved choice of counsel, not self representation. If that was not enough…
…The jurors in trial #2 found notes from a juror somehow, someway left in the deliberation room from trial #1. A juror alerted the judge’s bailiff, who did not immediately tell the judge about the problem. The jurors reached a verdict before the judge polled the jury about the notes. The judge then, essentially, asked each juror whether the notes influenced the individual juror’s decision (a subjective standard) instead of focusing on whether the notes could have influenced the verdict. If an objective test was applied, Division II held the notes could have affected the verdict. For instance, the notes contained information about another victim that was sexually assaulted at an address that was attributable to Mr. Chimm, plus a physical description of him. The location of the molestation for the two separate victims was highly relevant in both trials (Mr. Chhim’s residence). A juror overheard another juror say, regarding the discovered notes, “like, if this was like maybe a second go around or something.”
Division II unanimously held the juror notes could have affected the jury’s verdict by suggesting that Mr. Chhim was already been tried, but there was a mistrial.
Mr. Chimm gets two new trials! Self-representation is usually a nightmare for the State because of all the mistakes the Defendant will make due to lack of knowledge of procedure. Here, Division II provides guidance on standards for self representation.
Mr. Chhim is very lucky, as the evidence from two separate victims who had not previously even discussed the case seems highly probative and quire incriminating.