Barnes v. State

• Decision Date: 06 October 1975
• Docket Number: No. CR--75--79,CR--75--79
• Citation: 528 S.W.2d 370,258 Ark. 565
• Court: Arkansas Supreme Court
• Parties: Marcel Albius BARNES, Appellant, v. STATE of Arkansas, Appellee.

Page 370

528 S.W.2d 370

258 Ark. 565

Marcel Albius BARNES, Appellant, v. STATE of Arkansas, Appellee.

No. CR--75--79.

Supreme Court of Arkansas.

Oct. 6, 1975.

Rehearing Denied Nov. 10, 1975.

Don Langston, Fort Smith, for appellant.

Jim Guy Tucker, Atty. Gen., by Alston Jennings, Jr., Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

Marcel Barnes was found guilty of robbery with a firearm and sentenced to eight years' imprisonment. In this appeal, he argues eight points for reversal. Since we find reversible error in the circuit court's partial denial of his request that he be permitted to conduct his own trial and his concomitant attempt to reject the services of the public defender, we discuss that point first.

Appellant was charged on August 15, 1974. When arraigned on August 29, 1974, he assured the circuit judge that he would obtain counsel, and his trial was set for September 24. Again on September 12, he advised the court that he was still trying to hire an attorney and requested a continuance which was granted with a strong admonition to Barnes not to let the matter 'drift along'. Trial was then set for October 22 and on October 10, when the circuit judge made inquiry of Barnes, he stated that he had employed J. W. Whitehead as his attorney. A motion for continuance was filed on behalf of Barnes by Whitehead and the trial reset for November 19. Later Whitehead's partner, Patrick D. O'Rourke, was associated as one of Barnes' attorneys. On November 18, Barnes made oral motions to dismiss these attorneys and for a further continuance to obtain another attorney, both of which were granted. On January 3, 1975, the circuit judge discovered that Barnes still had not employed another attorney. Up until this point, Barnes had rejected all offers of the court to appoint counsel but he then agreed to accept representation by the public defender, with the right to employ additional counsel.

Trial was had on February 4. On that morning, Barnes moved that he be permitted to represent himself at the trial. He stated that he had been 'lied to' and 'deceived' by everyone, including the public defender, but his explanation as to how the public defender had deceived him was vague, to say the least. The trial judge examined Barnes on the basic rules of evidence and trial procedure and appropriately found that he knew nothing about them and was not qualified to represent himself. The judge, feeling that he had a duty to protect the right of Barnes to a fair trial by due process of law, warned him that he would be under the same restrictions that a lawyer would but finally held that Barnes would be allowed to make an opening statement, conduct voir dire examination of prospective jurors, and make a closing argument, but not to examine witnesses. Barnes vehemently protested against the public defender having anything to do with the case and insisted on being allowed to examine the witnesses, claiming a constitutional right to do so, but the circuit judge refused to change his ruling.

Art. 2, § 10 of the Arkansas Constitution provides that an accused in a criminal prosecution shall enjoy the right to be heard by himself and his counsel. Our own cases have clearly recognized the right of a defendant under our constitution to conduct his own defense in a criminal trial, whether for felony or misdemeanor, if he elects to do so. Wimberly v. State, 214 Ark. 930, 218 S.W.2d 730; Williams v. State, 153 Ark. 289, 239 S.W. 1065; Phillips v. State, 162 Ark. 541, 258 S.W. 403; Williams v. State, 163 Ark. 623, 260 S.W. 721; Slaughter v. State, 240 Ark. 471, 400 S.W.2d 267; Childs v. State, 243 Ark. 62, 418 S.W.2d 793.

The question was first treated in this state more than 50 years ago in Williams v. State, 153 Ark. 289, 239 S.W. 1065, where the accused sought and was granted permission to conduct his own defense, after the court had offered to appoint counsel to defend him. There, speaking through the late great Justice Frank G. Smith, this court said:

The Constitution gives one accused of crime the right to appear by himself and his counsel; but the services of an attorney cannot be forced upon him. Article 2, § 10. Const.1874. He has the right, if he so elects, to conduct his own defense, but he does not thereby become absolved from the duty of observing the rules of practice designed to promote the orderly administration of the law. * * *

In that case the primary question before the court was whether the appellate court would review questions raised in a motion for new trial, where no objection had been made during the course of the trial. The right to self-representation was more directly involved less than two years later in Phillips v. State, supra. There it was held that an accused could not complain that he was not represented by counsel where his retained counsel, through a misunderstanding, did not appear, and the defendant rejected the appointment of counsel. This court then said:

This court has held that the constitutional guaranty of the right of the defendant in a criminal case to be heard in his own defense by himself and counsel is for the benefit of the accused and that the accused may at his option decline to have counsel appointed to represent him and conduct his own case. Williams v. State, 153 Ark. 289, 239 S.W. 1065.

In a case note to 17 A.L.R. 266, it is said that it is universally held that a defendant in a criminal case who is sui juris and mentally competent may conduct his defense in person without the assistance of counsel. To the same effect, see case note to Ann.Cas.1913C, at page 739. Numerous cases are cited in the notes to support the holding.

In Slaughter, followed in Childs, we held that the right to counsel in a criminal trial was a personal one, which could be waived, either at the pretrial stage or at trial. The only qualification on this right ever recognized by us is that an accused's waiver of his right to counsel be knowingly and intelligently made. See Childs v. State, supra; Slaughter v. State, supra; Phillips v. State, supra.

Even if our own constitution and cases did not control, while this case was pending on appeal, the U.S. Supreme Court removed all doubt about the existence of a federal constitutional right of a defendant in a sate criminal trial to self-representation under the Sixth Amendment to the U.S. Constitution, as made applicable to the states by the Fourteenth Amendment, so long as he voluntarily and intelligently elects to do so. See Faretta v. California, --- U.S. ---, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In that case, it was made clear that forcing a defendant against his will to accept a state-appointed public defender and denying his request to conduct his defense was reversible error. The factual background is strikingly similar to this case.

The state's efforts to distinguish Faretta in its brief filed three weeks after that decision was rendered, are inapt. Although Barnes did not make his desire to defend himself known to the court until the morning of the trial, in contrast to Faretta's having declared his desire weeks in advance, there is no language in Faretta that would lend any significance to such a distinction. The U.S. Supreme Court said that it had concluded that a state may not constitutionally hail a person into its criminal courts and there force a lawyer upon him when he insists that he wants to conduct his own defense. The only qualification that we can find in that opinion is that the defendant's election to proceed without counsel must be voluntarily and intelligently made. This record is devoid of anything indicative of involuntariness in Barnes' election.

Even though we might agree with the trial court, the public defender, our attorney general, and the dissenters in Faretta that such an election is pure folly and that only confusion can result, the test whether the election has been intelligently made is not the wisdom of the decision or its effect upon expeditious administration of justice. It is only necessary that a defendant be aware of the dangers and disadvantages of self-representation so the record will establish that the defendant knows what he is doing and his choice is made 'with eyes open'. His technical legal knowledge is totally irrelevant in the assessment of his knowing exercise of the right to defend himself. The record here clearly discloses that the circuit judge pointed out to the defendant his lack of knowledge of procedures and rules of evidence and the hazards attendant upon his choice. Barnes' request was not refused because it was not knowingly and intelligently made. It was refused in an effort to protect Barnes from his ignorance as to rules of evidence and procedures in presenting evidence. ¹

Our own decisions, as well as those cited in Faretta, have clearly pointed to its result. See also, Minor v. United States, 375 F.2d 170 (8 Cir., 1967). It is interesting to note that the majority in Faretta read Art. 2, § 10 as explicitly conferring the right of self-representation. We have consistently done so, too.

We find the limitations on the right enumerated by the Court of Appeals of New York appropriate and consistent with our own decisions and with Faretta. In People v. McIntyre, 36 N.Y.2d 10, 364 N.Y.S.2d 837, 324 N.E.2d 322 (1974), which ante-dated the decision in Faretta but came after it was argued, that court said:

A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues.

Here the request was definitely unequivocal. It was timely because it was made before the trial commenced. See McIntyre; Minor v. U.S., 375 F.2d 170 (8 Cir., 1967); Williams v. State, 153 Ark. 289, 239 S.W. 1065; Phillips v. State, 162 Ark. 541, ...