Baker v. State

• Decision Date: 30 December 1981
• Docket Number: No. 12114,12114
• Parties: Bobby Mitchell BAKER, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 1217

637 P.2d 1217

97 Nev. 634

Bobby Mitchell BAKER, Appellant, v. The STATE of Nevada, Respondent.

No. 12114.

Supreme Court of Nevada.

Dec. 30, 1981.

Morgan D. Harris, Public Defender, and Peter J. Christiansen, Deputy Public Defender, Las Vegas, for appellant.

[97 Nev. 635] Richard H. Bryan, Atty. Gen., Carson City, Robert J. Miller, Dist. Atty., James Tufteland, and Raymond D. Jeffers, Deputy Dist. Attys., Las Vegas, for respondent.

OPINION

PER CURIAM:

This is an appeal from a conviction of burglary upon a jury verdict.

Immediately prior to voir dire of the jury on the first day of trial, appellant filed a written motion in pro per, requesting that his counsel be dismissed or, in the alternative, that he be allowed to represent himself at trial. Baker listed several grounds in the motion, based primarily on his dissatisfaction with the public defender. The state objected, asserting that the motion was untimely. The court denied the motion. No inquiry was made as to the reason for the lateness of the request and no canvass of Baker was performed to ascertain whether Baker was voluntarily and intelligently electing to proceed without counsel. ¹ The record reveals that Baker made an unequivocal request to proceed without counsel, both in writing and orally.

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), established that a defendant in a criminal case has an "unqualified right" to represent himself when he voluntarily and intelligently elects to do so. See also Nev.Const. Art. 1, § 8. In Schnepp v. State, 92 Nev. 557, 554 P.2d 1122 (1976), we rejected a claim of denial of the right to self-representation as untimely when invoked after jeopardy had attached. In Schnepp we cited, with approval, United States ex rel. Maldonado v. Denno, 348 F.2d 12 (2d Cir. 1965), which arose from facts nearly identical to those in the case at hand. Maldonado held that a motion to proceed in pro per is timely if made prior to the swearing of the jury. This position is consistent with the stance of the federal appellate courts in Chapman v. U. S., 553 F.2d 886 (5th Cir. 1977) and United States v. Price, 474 F.2d 1223 (9th Cir. 1973) (applying the federal statutory right to self-representation, 28 U.S.C.A. § 1654). A request for self-representation made before jeopardy has attached is thus not untimely, and a denial of such a request on the ground of timeliness alone deprives the defendant of his Sixth Amendment right to conduct his own defense.

We note that a defendant may not be permitted to employ a delaying tactic by abuse of this rule. State v. Fritz, 21 Wash.App. 354, 585 P.2d 173 (1978). However, absent a showing that the motion was made merely to obstruct or delay the orderly process of the criminal justice system, courts have found that denial of a timely motion for self-representation deprives a defendant of a constitutional right, and this court is constrained to find that the defendant has been deprived of his constitutional right to conduct his own defense. See State v. Fritz, 21 Wash.App. 354, 585 P.2d 173 (1978); compare People v. Windham, 19 Cal.3d 121, 560 P.2d 1187, 137 Cal.Rptr. 8, cert. denied sub nom. Windham v. California, 434 U.S. 848, 98 S.Ct. 157, 54 L.Ed.2d 116 (1977) (request made after start of trial). In the instant case, such a showing has not been made.

The denial of Baker's motion for substitute counsel is a matter within the discretion of the court. Junior v. State, 91 Nev. 439, 537 P.2d 1204 (1975). The finding by the court that an inadequate showing had been made by Baker on this part of...