Carter v. State

Decision Date25 August 1987
Docket NumberNo. 1184S457,1184S457
Citation512 N.E.2d 158
PartiesDavid CARTER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Supreme Court

Susan K. Carpenter, Public Defender, and David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., and Jody Cusson-Cobb, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Appellant David Carter was convicted after a jury trial of two counts of robbery, a class A felony and a class B felony, Ind. Code Sec. 35-42-5-1 (Burns 1979 Repl.). He was sentenced to consecutive terms of thirty-five years and fifteen years. Among the substantial issues presented by this direct appeal is whether a defendant who controlled his own defense as co-counsel may present a claim of ineffective assistance of counsel. We conclude that he cannot.

Carter was accused of robbing two businesses in Peru. The evidence at trial showed that he entered the Roberts Liquor Store on June 25, 1981, and demanded money. When the cashier hesitated, Carter struck him with a large caliber handgun and confiscated all the money in the cash drawer and in the cashier's wallet.

On July 29, 1981, Carter arrived at the Super-X Drugstore with shotgun in hand and demanded money from both the cashier and the pharmacist. They complied, and he fled. The robberies netted a total of about $1300.

Carter was charged more than two years later after one of his accomplices, Fred Logan, was arrested for an unrelated misdeed and gave police a "clean-up statement" about his own prior criminal activities. Logan's trial testimony was instrumental in obtaining Carter's convictions.

I. Ineffective Assistance of Counsel

At Carter's arraignment, a public defender was appointed to represent him. Carter filed a pro se "Notice that Defendant will Participate in his Trial" on January 13, 1984. (Carter is a self-styled jailhouse lawyer who claimed at the time to be earning approximately $600 monthly as a "law clerk" for a private attorney.) The trial court interpreted the motion as a request for defendant to act as co-counsel and initially denied it.

Nonetheless, Carter filed a motion to act as co-counsel on February 24, 1984. He withdrew that motion on March 6, after filing a pro se motion for appointment of new counsel. Carter subsequently renewed his effort to act as co-counsel through a motion filed March 26. This time, the trial court acceded to Carter's request and appointed him "co-counsel," without defining the parameters of that role. Once a defendant is recognized as co-counsel, however, the nature of his participation in his defense is within the sound discretion of the trial court. United States v. Swinton, 400 F.Supp. 805 (S.D.N.Y. 1975); State v. Ames, 222 Kan. 88, 563 P.2d 1034 (1977); Fowler v. State, 512 P.2d 238 (Okl.Cr.App.1973), overruled on other grounds, 602 P.2d 215 (Okl.Cr.App.1979).

Despite his lack of legal credentials, Carter chose to participate fully. He now seeks to advance a claim that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment. He cites numerous instances in which his public defender failed to make an objection or preserve alleged error. In each instance, Carter, as co-counsel, could have made the same objection or taken some action to preserve the error. Whether his reason was ignorance or strategy, Carter chose not to do so.

The record shows that counsel's representation was adequate under the standard enunciated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which requires a showing that counsel's performance fell below professional standards and that the defendant was prejudiced by this performance. However, we do not otherwise address the merits of Carter's ineffectiveness of counsel claim because we conclude that he cannot raise it under these circumstances.

The Sixth Amendment of the United States Constitution and art. I, Sec. 13 of the Indiana Constitution guarantee an accused the right to counsel at any critical stage of the prosecution where "counsel's absence might derogate from the accused's right to a fair trial." United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149, 1157 (1967); Pirtle v. State (1975), 263 Ind. 16, 26, 323 N.E.2d 634, 639. Correlative to the constitutional right to counsel is the right of a defendant in a criminal proceeding to appear pro se. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A defendant who proceeds pro se, however, must accept the burdens and hazards of self-representation. Id.; Engle v. State (1984), Ind., 467 N.E.2d 712. He may not assert a Sixth Amendment claim of ineffective assistance of counsel because he, in effect, would be alleging himself ineffective. Faretta, 422 U.S. at 835 n. 46, 95 S.Ct. at 2541 n. 46.

Carter chose to be represented by both his attorney and himself. Although an accused has the constitutional right to represent himself or be represented by counsel, neither the federal nor the state constitution accords him the right to do both at once. McKaskle v. Wiggins, 465 U.S. 168, 79 L.Ed.2d 122, 104 S.Ct. 944 (1984); Bradberry v. State (1977), 266 Ind. 530, 364 N.E.2d 1183. The trial court had the discretion to grant or deny Carter's request to act as co-counsel. Lock v. State (1980), 273 Ind. 315, 403 N.E.2d 1360. Inasmuch as such requests are rarely granted in Indiana, 1 Carter's allegation of ineffective assistance of counsel under these circumstances is a novel claim.

Distinctly different policies underlie the right to counsel and the right to self-representation. The policy supporting the right of self-representation is personal autonomy. The defendant is the one who must suffer the consequences of his decision as to counsel; hence, he is entitled to choose his advocate, a lawyer or himself. Faretta, 422 U.S. at 820, 95 S.Ct. at 2533. The purpose of the Sixth Amendment guarantee of representation is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights and to assure him the guiding hand of counsel at every step in the proceeding. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

When an accused elects to be represented by counsel, he surrenders to his attorney the right to make certain binding decisions concerning trial strategy. The Supreme Court of Kansas explicitly held that a defendant who accepts counsel has no right to conduct his own trial or dictate the procedural course of his representation by counsel. Ames, 222 Kan. at 100, 563 P.2d at 1044-1045. The Tenth Circuit and the Michigan Court of Appeals have similarly ruled. Rogers v. United States, 325 F.2d 485 (10th Cir.1963); People v. LaMarr, 1 Mich.App. 389, 136 N.W.2d 708 (1965).

The United States Supreme Court has stated that a "defense may be made easier if the accused is permitted to be present ... for it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself." Snyder v. Massachusetts, 291 U.S. 97, 106, 54 S.Ct. 330, 332, 78 L.Ed. 674, 678 (1934). A similar conclusion was reached by former Chief Justice Warren Burger, who suggested to the National Public Defender Conference in 1969 that a represented client had only three decisions to make: (1) to plead guilty or not guilty; (2) to have a jury or non-jury trial; (3) to take the stand or not. 5 Crim. Law Rptr. 2161, 2162. In Faretta, the Supreme Court stated that "when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas." 422 U.S. at 820 (citations omitted). The Indiana Court of Appeals cited this language favorably when ruling that an attorney's actions on behalf of his criminal client may be binding on that client, whether or not the client affirmatively approves of these actions. Judy v. State (1984), Ind. App., 470 N.E.2d 380, 381.

This Court has held that the decision to call a particular witness rests with defense counsel. McCann v. State (1983), Ind., 446 N.E.2d 1293. In Coonan v. State (1978), 269 Ind. 578, 382 N.E.2d 157, this Court noted that among the reasons a trial court might deny a defendant's request to act as co-counsel is the need to recognize counsel's power to make binding decisions of trial strategy. In the context of a post-conviction proceeding, this Court has held that, absent fraud, a client is bound by the acts and omissions of his attorney, and he cannot accept the benefits thereof and reject undesirable acts or omissions by his attorney. See, e.g., In re Lee (1964), 246 Ind. 7, 198 N.E.2d 231.

The thrust of the precedent on this subject is that an accused may not command all decisions of trial strategy and procedure unless he intends to represent himself. In light of this concept and the unique facts at hand, we believe Carter's form of representation was most like that of a defendant who proceeds pro se but also relies on standby counsel.

Despite the public defender's representation, Carter remained the captain of his defense team, calling all of the plays with the help of his veteran teammate, the public defender. Carter obtained discovery, filed several pre-trial motions, deposed witnesses and made arguments during court hearings, as did appointed counsel. At one point, Carter possessed discovery documents in his jail cell which appointed counsel did not have. The record also shows that certain trial strategies were employed at Carter's insistence, despite counsel's advice to the contrary. The record, as a whole, suggests that Carter retained the services of the public defender primarily to conduct the investigation which Carter's incarceration prevented him from doing. Carter otherwise appeared to control his own defense.

At trial, Carter cross-examined the State's chief...

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