State v. Chenoweth

1

STATE OF WASHINGTON, Respondent, v. MICHAEL D. CHENOWETH, Appellant.

No. 37846-2-III

Court of Appeals of Washington, Division 3

April 2, 2024

UNPUBLISHED OPINION

LAWRENCE-BERREY, C.J.

Michael Chenoweth appeals his conviction for first degree assault. He contends the agreed supplemental narrative of jury selection is not sufficiently complete to allow effective appellate review. He also contends the trial court violated his due process rights when it entered an order, in his absence allowing the administration of involuntary medication without considering the Sell^[1] factors.

We disagree and affirm. First, the agreed supplemental narrative of jury selection is sufficient to permit effective appellate review because it adequately confirms the absence of reversible error. Second, the trial court did consider the Sell factors, and Chenoweth's absence at that hearing was harmless beyond a reasonable doubt, given that the medication significantly benefited him and resulted in restored competency so he could assist his counsel at trial. We affirm Chenoweth's conviction.

FACTS

In August 2019, the State charged Chenoweth with harassment assault in the first degree, and resisting arrest. Soon after these charges were filed, defense counsel reviewed the police report and requested an order for mental competency examination. The trial court granted the request. Soon after the trial court held a review hearing with Chenoweth present. During the hearing, the parties agreed that Chenoweth should receive involuntary treatment pursuant to RCW 71.05.240, and the court so ordered.

On September 13, 2019, the parties appeared in court again, but this time without Chenoweth. The parties presented two agreed proposed orders, one for competency restoration treatment and the other for authorizing administration of involuntary medication. The involuntary medication order expressly set forth each of the four Sell factors,^[2] and a box appeared next to each factor with an "X" in the box. Clerk's Papers (CP) at 61-62.

The proposed orders were based on a report authored by a licensed psychologist, Dr. Trevor Travers. Dr. Travers concluded in his report:

In my opinion, [Mr. Chenoweth] does not currently have the capacity to understand the proceedings against him or to assist in his own defense. Therefore, I recommend an Order Staying Proceedings at Eastern State Hospital for 90 days pursuant to RCW 10.77 for the purposes of treating Mr. Chenoweth and assisting him to regain his competency to stand trial. Records reviewed regarding Mr. Chenoweth indicated that he has delusions about being poisoned by his medications or his doctors. In my opinion, psychiatric medication will be necessary for his competency restoration, and in my opinion, it is likely that he would refuse voluntary compliance with medications due to his delusional beliefs. Therefore, I recommend that an Order Staying Proceedings for Mr. Chenoweth include a provision that allows Eastern State Hospital to involuntarily administer antipsychotic and psychotropic medications to him and to obtain appropriate laboratory studies should he refuse voluntary compliance with the medications or the studies.

Rep. of Proc. (RP) at 40.

The verbatim transcript of the motion hearing contains numerous "inaudible" notations, so the parties agreed to a reconstructed version of the transcript. The trial court adopted the reconstructed transcript, which provides in relevant part:

THE COURT: Let's call the case of Michael Chenoweth. Michael Chenoweth is-I was just told by our corrections staff that he's still not present.

[PROSECUTING ATTORNEY]: Judge, he's the evaluation from Eastern that he's not competent. I've handed up an order on restoration, they're also asking for an order on involuntary medication. . . .

. . . . [PROSECUTING ATTORNEY]: . . . We need the court to enter those orders-restoration process, I think they noted a hearing in there for they suggested 90 days, I want to say it's December 9th.

. . . .

THE COURT: . . . There is no objection to the administration of involuntary . . . You probably looked up the law and realized there's not much the legal thing to do . . .

[DEFENSE COUNSEL]: Yeah, I'm just not confident I'm not sure my client would have been thrilled with that but I don't think he's competent to make a decision as to tell me whether he agreed or not, and I do think it's in his best interest.

CP at 239-40. The court signed both orders.

On September 29, 2020, the State filed an amended information charging Chenoweth with assault in the first degree and alleging a deadly weapon enhancement.

Chenoweth was admitted to Eastern State Hospital on October 28, 2019. Following Chenoweth's 90-day competency restoration treatment, Dr. Randall Strandquist conducted a forensic evaluation and prepared a report for the court. His report states in part:

Over the course of Mr. Chenoweth's admission he was compliant with medication . . . .

. . . .

Mr. Chenoweth said that he felt much better, when compared to how he felt when Dr. Travers interviewed him. . . . He did admit that the medication he is currently taking has made a significant difference in helping him feel better. He denied experiencing any significant side effects. . . . . . . Mr. Chenoweth demonstrated that he has sufficient knowledge of court proceedings and the roles of the participants involved with these proceedings. He was able to explain the roles and responsibilities of the judge, defense attorney, prosecuting attorney, witness, and jury.

He is able to identify his attorney and how he may contact him. Mr. Chenoweth stated that he trusts his attorney. . . .

CP at 123-24. Dr. Strandquist concluded, "Mr. Chenoweth has the capacity to understand court proceedings and productively participate in his own defense." CP at 121. Based on Dr. Strandquist's report, the trial court found Chenoweth competent to stand trial.

Jury selection and conviction

Chenoweth's jury trial occurred during the COVID-19 pandemic. During that time, to comply with the Washington State Supreme Court's June 18, 2020 "Order RE Modification of Jury Trial Proceedings" and social distancing requirements, the court conducted jury selection at the Ellensburg Armory. Due to technical problems, Chenoweth's jury selection proceedings were not captured by the court clerk's recording devices.

The empaneled jury convicted Chenoweth of assault in the first degree and found the presence of the deadly weapon enhancement. The trial court sentenced Chenoweth, and Chenoweth timely appealed.

PROCEDURE ON APPEAL

On Chenoweth's motion, we stayed his appeal pending the Supreme Court's decision in State v. Waits, 200 Wn.2d 507, 520 P.3d 49 (2022). Following the Waits decision, we lifted our stay and set a briefing schedule for the parties. Notation Ruling Lifting Stay, State v. Chenoweth, No. 37846-2-III (Wash.Ct.App. May 9, 2023).

In the wake of Waits, the prosecuting attorney worked to reconstruct the record in Chenoweth's jury selection. The parties eventually submitted to the trial court a proposed agreed order to adopt the supplemental report of proceedings. The court signed the agreed order and the supplemental report became the official record of the Sell hearing and of Chenoweth's jury selection. The court noted that Chenoweth had "preserved no objection or exception to either of these portions of the proceedings on the record below," and that there was "no apparent GR 37, Batson,^[3] or other manifestation of systemic injustice on this record." CP at 228.

ANALYSIS

A. Sufficiency of record for effective appellate review

Chenoweth contends the agreed narrative report of proceedings for jury selection is not sufficiently complete to allow effective appellate review. We disagree.

Criminal defendants have the right to appeal in all cases. Wash. Const. art. I, § 22. A criminal defendant is constitutionally entitled to a record of sufficient completeness to permit effective appellate review of their claims. Waits, 200 Wn.2d at 513; State v. Tilton, 149 Wn.2d 775, 781, 72 P.3d 735 (2003). However, a sufficiently complete record does not necessarily require "'a complete verbatim transcript.'" Tilton, 149 Wn.2d at 781 (quoting Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971)).

Alternatives to a verbatim transcript are permissible if they permit effective review; that is, if the alternative method allows counsel to determine which issues to raise on appeal and puts before the reviewing court an equivalent report of the trial events from which the issues arise. See id.; see also State v. Jackson, 87 Wn.2d 562, 565, 554 P.2d 1347 (1976). Alternatives include "'[a] statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript.'" Jackson, 87 Wn.2d at 565 (quoting Draper v. Washington, 372 U.S. 487, 495-96, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963)).

"The burden of showing that alternatives will suffice for an effective appeal rests with the State." Waits, 200 Wn.2d at 514 (citing Mayer, 404 U.S. at 195). Where a record is not sufficient to permit effective review, the remedy is a new trial. State v. Larson, 62 Wn.2d 64, 67, 381 P.2d 120 (1963).

In Washington, RAP 9.3 and RAP 9.4 outline the permissible alternatives. RAP 9.3 governs narrative reports. The rule provides:

The party seeking review may prepare a narrative report of proceedings. A party preparing a narrative report must exercise the party's best efforts to include a fair and accurate statement of the occurrences in and evidence introduced

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