State v. Lowe, 67871

Decision Date05 March 1993
Docket NumberNo. 67871,67871
Citation18 Kan.App.2d 72,847 P.2d 1334
PartiesSTATE of Kansas, Appellee, v. Michael LOWE, Appellant.
CourtKansas 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.

BRISCOE, Chief Judge:

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:

"THE COURT: Mr. Lowe, come over here, I'll tell you what we're doing. Right there by your lawyer is okay. Let me tell you what's going on here.

"I have not been a party to any of the discussions. I understand there was a considerable plea negotiation and that has broken down, is the only word to say for it, to a place where you won't go any further, the D.A. won't go any further and your lawyer advises me that you don't feel comfortable with her representing you.

"We've had some other lawyers talk and she made a motion to first of all, let her out of the case. I wouldn't let her. She said you wanted to represent yourself, which I need to bring you in here and tell you what the law is on that.

"The only way I can do that is if I make a finding that it would not be of benefit to you to have a lawyer in the case, is the only way that I can let you be your own lawyer.

"I've never been a defendant in a case. I've been a lawyer in a case; I've been a judge in a case. I tell you, you don't want to try to undertake that yourself, when you are so close to it, when you are the defendant.

"I've tried a number of defendants and you are better off letting the lawyer make the legal decisions. Whether you enter a plea or not or that sort of matter, that's up to you; your lawyer doesn't have nothing to say about that. But where to stand and, oh, legal things I'm talking about, you know, how to make a legal argument on whether a piece of evidence is permissible or not, you are better off with a lawyer, I'm telling you.

"Another thing, you have a right to be in your proper clothes in your case. Your lawyer told me you wouldn't say one way or the other. We have a suit of clothes. I'll get those. We have those up here. We'll let you go to the library, jury room, put on your proper clothes. You don't have to. That's up to you.

"Another reason I moved up here from my courtroom is that holding cell is wired for sound. If you participate--you don't have to--but you can hear everything going on from back there.

"It's your case. I'm not trying to tell you what to do about it. I want to make sure that you know what's going on. If you want a trial, that's what we'll do right here this afternoon. We want to do everything right and proper and participate in it, being it's your case.

"Do you understand where you are at?

"What did you want to do?

"THE DEFENDANT: I want a trial.

"THE COURT: Did you want to be out here?

"THE DEFENDANT: Yeah.

"THE COURT: Do you want to put on your civilian clothes?

"THE DEFENDANT: No.

"THE COURT: Okay. Now, when the people see--there's been so much publicity on the orange jumpsuits--they'll know where you are at. I'll tell the jury that they may not consider that, that has nothing to do with anything. If they consider the fact that you are in that orange jumpsuit, they are acting improperly. I'll tell them that but it's whatever you want to do as far as dress.

"THE DEFENDANT: I'm fine like this.

"THE COURT: You want to wear your orange jumpsuit?

"THE DEFENDANT: Yes.

"THE COURT: I advise you again you don't have to. I advise you to please listen to your lawyer. She has your best interests at heart, no matter what you think right now. I understand this is a very tense moment. It's a rough case but your lawyer cares a lot about helping people. I've seen her try other cases. She's a good lawyer. I wouldn't be afraid to have her represent me if I was in your shoes.

"Do you have any questions whatsoever about what's going on? Do you understand what you are charged with?

"THE DEFENDANT: (Indicating affirmatively.)

"THE COURT: You are ready to go forward?

"THE DEFENDANT: (Indicating affirmatively.)

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 State concedes the court's response to Lowe's assertion of his right to self-representation was an erroneous statement of the law. The court responded to Lowe's request with the following statement: "The only way I can do that is if I make a finding that it would not be of benefit to you to have a lawyer in the case, is the only way that I can let you be your own lawyer." Whether a lawyer could better represent Lowe is not the question for the court to decide. In State v. Buckland, 245 Kan. 132, 138, 777 P.2d 745 (1989), the Kansas Supreme Court reiterated the American Bar Association Standards Relating to the Function of the Trial Judge § 6.6, which states that the court's inquiry should show that the defendant

" '(i) has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;

" '(ii) possesses the intelligence and capacity to appreciate the consequences of this decision; and

" '(iii) comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case.' "

The court went on to counsel Lowe regarding, among...

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18 cases
  • State v. Jones
    • United States
    • Kansas Court of Appeals
    • January 23, 2009
    ...preliminary hearing, the district court did not obtain a knowing and intelligent waiver of his right to counsel as set forth in State v. Lowe, 18 Kan.App.2d 72, Syl. ¶ 1, 847 P.2d 1334 (1993). The State admits "the court may not have made the appropriate inquiry at the preliminary "The Sixt......
  • State v. Vann
    • United States
    • Kansas Supreme Court
    • February 3, 2006
    ...to counsel, the right to self-representation can be waived by mere failure to assert it.' [Citation omitted.]" State v. Lowe, 18 Kan.App.2d 72, 74-75, 847 P.2d 1334 (1993). "Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial out......
  • State v. Andrews, No. 113,971
    • United States
    • Kansas Court of Appeals
    • March 6, 2020
    ...of the recess, the district court embarked on an extensive and detailed colloquy with Andrews, in compliance with State v. Lowe , 18 Kan. App. 2d 72, 847 P.2d 1334 (1993), to insure that he was fully informed of his rights, responsibilities, and potential perils of self-representation.At th......
  • The City of Ark. CITY v. SYBRANT
    • United States
    • Kansas Court of Appeals
    • November 5, 2010
    ...of the district court's ruling, Sybrant relies on State v. Vann, 280 Kan. 782, 786-89, 127 P.3d 307 (2006), and State v. Lowe, 18 Kan.App.2d 72, 74-75, 847 P.2d 1334 (1993), for the proposition that a request for self-representation on the day of trial does not constitute a basis for denyin......
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1 books & journal articles
  • Kansas State Court Appellate Standards of Review an Understanding Unblinded
    • United States
    • Kansas Bar Association KBA Bar Journal No. 62-12, December 1993
    • Invalid date
    ...mod. 246 Kan. 393, 789 P.2d 1175 (1990). [FN282]. State v. Roland, 15 Kan.App.2d 296, 300, 807 P.2d 705 (1991). [FN283]. State v. Lowe, 18 Kan.App.2d 72, 74, 847 Kan. 1334 (1993). [FN284]. State v. Lem'mons, 238 Kan. 1, 7, 705 P.2d 552 (1985). [FN285]. State v. Graham, 244 Kan. 194, 202, 76......

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