State v. Lowe, 67871
Decision Date | 05 March 1993 |
Docket Number | No. 67871,67871 |
Citation | 18 Kan.App.2d 72,847 P.2d 1334 |
Parties | STATE of Kansas, Appellee, v. Michael LOWE, Appellant. |
Court | Kansas Court of Appeals |
Syllabus by the Court
1. A criminal defendant who clearly and unequivocally expresses a wish to proceed pro se has the right to represent himself or herself after a knowing and intelligent waiver of the right to counsel. A knowing and intelligent waiver requires that the defendant be informed of the dangers and disadvantages of self-representation so that the record will establish the defendant knew what he or she was doing and such choice was made "with eyes open." Following Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
2. In order to assert the right to self-representation, a criminal defendant must clearly and unequivocally express a wish to proceed pro se. A defendant's request to be relieved of counsel in the form of a general statement of dissatisfaction with an attorney does not amount to an invocation of the right to represent oneself.
3. A procedure is suggested for trial courts to follow when responding to a criminal defendant's assertion of the right to self-representation.
4. Once a request to proceed pro se has been conclusively denied, a criminal defendant is not required to continually reassert the right to self-representation to avoid a waiver of the previously invoked right.
M. Kristine Paredes, Asst. Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, for appellant.
David Lowden, Asst. Dist. Atty., Nola Foulston, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.
Before BRISCOE, C.J., BRAZIL, J., and JAMES J. NOONE, District Judge Retired, assigned.
Michael A. Lowe was convicted of two counts of aggravated robbery (K.S.A. 21-3427) and one count of aggravated battery (K.S.A. 21-3414). Lowe appeals, contending he was denied his right to self-representation and that the trial court erred in not properly instructing the jury.
Prior to commencement of trial, the following colloquy occurred between Lowe and the court:
Lowe contends the trial court violated his right to represent himself by misstating the law concerning self-representation and by insisting that Lowe be represented by counsel. As noted by the parties, denial of a defendant's right to self-representation is not subject to the harmless error rule. See McKaskle v. Wiggins, 465 U.S. 168, 177, n. 8, 104 S.Ct. 944, 950, n. 8, 79 L.Ed.2d 122 (1984).
In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court recognized a defendant's right to represent himself. The United States Supreme Court held that a defendant who clearly and unequivocally expresses a wish to proceed pro se has the right to represent himself after a knowing and intelligent waiver of his right to counsel. A knowing and intelligent waiver requires that the defendant be informed of "the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " 422 U.S. at 835, 95 S.Ct. at 2541.
Because the right to proceed pro se is at odds with the right to be represented by counsel, "[t]he courts must indulge 'every reasonable presumption against waiver' of the right to counsel, and will 'not presume acquiescence in the loss of fundamental rights [i.e., the right to counsel].' " State v. Hollins, 9 Kan.App.2d 487, 489, 681 P.2d 687 (1984) (quoting State v. Carlin, 7 Kan.App.2d 219, 640 P.2d 324, rev. denied 231 Kan. 801 [1982]. "[U]nlike the right to counsel, the right to self-representation can be waived by mere failure to assert it." Hollins, 9 Kan.App.2d at 489, 681 P.2d 687. In order to assert the right to self-representation, a defendant must clearly and unequivocally express a wish to proceed pro se. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541; Hollins, 9 Kan.App.2d at 489, 681 P.2d 687. " '[A] defendant's request to be relieved of counsel in the form of a general statement of dissatisfaction with his attorney's work does not amount to an invocation of the Faretta right to represent oneself.' " Hollins, 9 Kan.App.2d at 489, 681 P.2d 687 (quoting Moreno v. Estelle, 717 F.2d 171, 176 [5th Cir.1983], cert. denied 466 U.S. 975, 104 S.Ct. 2353, 80 L.Ed.2d 826 (1984].
In the present case, Lowe's counsel informed the court that Lowe wanted to represent himself. The State argues defense counsel's assertion of the right to self-representation on Lowe's behalf is insufficient to invoke Lowe's right to represent himself. From the record, it appears Lowe's desire to represent himself was made clear to his attorney and Lowe's attorney repeated that request to the court in Lowe's presence. This assertion of the right to self-representation was adequate to convey to the court Lowe's present desire to represent himself. The court understood that Lowe was asserting his right to self-representation and acted accordingly by proceeding to advise Lowe concerning the dangers inherent in self-representation.
The court went on to counsel Lowe regarding, among...
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