City of Fargo v. Rockwell, No. 980305.

• Court: United States State Supreme Court of North Dakota
• Writing for the Court: KAPSNER, Justice.
• Citation: 597 N.W.2d 406,1999 ND 125
• Docket Number: No. 980305.
• Decision Date: 13 July 1999
• Parties: CITY OF FARGO, Plaintiff and Appellee, v. Bronson Jamal ROCKWELL, Defendant and Appellant.

597 N.W.2d 406
1999 ND 125

CITY OF FARGO, Plaintiff and Appellee,
v.
Bronson Jamal ROCKWELL, Defendant and Appellant

No. 980305.

Supreme Court of North Dakota.

July 13, 1999.

597 N.W.2d 407

Stephen R. Dawson, City Prosecutor, Fargo, for plaintiff and appellee

Richard E. Edinger, Moorhead, for defendant and appellant.

KAPSNER, Justice.

[¶ 1] Bronson Jamal Rockwell appealed from a trial court judgment of conviction finding him guilty of driving under the influence of alcohol. He asserts his right to counsel was violated. We conclude Rockwell knowingly and intelligently waived his right to counsel and therefore affirm.

I.

[¶ 2] On April 26, 1998, Rockwell was charged with driving under the influence of alcohol. The trial court appointed Cash Aaland as counsel to represent Rockwell. Rockwell, through Aaland, filed a N.D.R.Crim.P. 16 discovery request and filed a motion to suppress the results of a blood-alcohol test.

[¶ 3] On September 8, 1998, the morning of the trial, Rockwell appeared with Aaland. Aaland informed the trial court that Rockwell had indicated he wanted to represent himself. Rockwell told the trial court he "would like to be appointed a new attorney" because he had lost confidence in Aaland. The court responded that Rockwell had a right to court-appointed counsel, but no right to pick and choose who that counsel would be. Based upon pretrial motions, the trial court noted Aaland had ably represented Rockwell to that

597 N.W.2d 408

point and also noted court-appointed counsel was an "experienced trial lawyer particularly on these particular type of cases." The trial court denied Rockwell's request for new counsel

[¶ 4] Following the denial of Rockwell's request for a new court-appointed attorney, the following exchange occurred:

MR. AALAND: Up until this morning I understand Mr. Rockwell wanted to conduct his own defense; is that still your wish, Mr. Rockwell?

THE DEFENDANT: I would like to conduct my own defense. If I can have an—an alternate lawyer from the Court—

THE COURT: Sir, the constitutional rights, sir, to proceed at—as your own attorney, what the Court calls proceeding pro se, if you choose to proceed pro se you are held to the requirements of knowing the rules of the Court as any other attorney would be held to. You would be required to make all the decisions and examine witnesses and conduct yourself in accordance with the rules of the Court.

THE DEFENDANT: I need someone to help me with procedure.

THE COURT: Do you want Mr. Aaland to sit and help you with the procedure?

THE DEFENDANT: Do you have another?

THE COURT: That would be your choice.

THE DEFENDANT: That's it?

THE COURT: Uh-huh.

THE DEFENDANT: Then I will have to have Mr. Aaland.

THE COURT: What you're telling me is you want to make your own statements; is that correct?

THE DEFENDANT: Yes.

THE COURT: You want to cross-examine all the witnesses brought against you by the City yourself?

THE DEFENDANT: Yes, sir.

THE COURT: You want to call all the witnesses, if any, in your own defense on your own?

THE DEFENDANT: Is that what I'm supposed to do? Do I have any alternative or are you letting me know these are the things I have to do on my own?

THE COURT: What I want you to decide is you represent yourself and five minutes into the case Mr. Aaland represents you and fifteen minutes later you're representing yourself. We're not going to go back and forth. So you tell me right now what it is that you're going to do. You are going to make the opening statement?

THE DEFENDANT: I will do whatever the lawyer is supposed to do. I will make the opening statement.

THE COURT: You are going to examine all the witnesses yourself?

THE DEFENDANT: As I said, I would imagine I would like to be able to conduct it with Mr. Aaland.

THE COURT: That's fine, but Mr. Aaland he's going to—going to participate in the trial is what you're telling me?

THE DEFENDANT: I understand what you're saying.

THE COURT: So you're going to represent yourself. Mr. Aaland will be available to ask questions of, but you are—you will do all your own lawyering, and the—

THE DEFENDANT: The only ones— and for the sake of the record I object to denying me appointment of new counsel. Other than that, I understand what you're saying about me—my being responsible for the aspect of the lawyer.

During the trial, Rockwell conducted the examinations of witnesses and delivered the opening statement and closing argument. Aaland's participation was limited to minimal consultation on procedural issues and the direct examination of Rockwell.

[¶ 5] The trial court ordered a lunch recess during the middle of Rockwell's

597 N.W.2d 409

closing argument. Following the recess, Aaland did not return to the courtroom and Rockwell requested "just a few more seconds to see if [his] consulting attorney [was] going to appear." After the trial court informed Rockwell that Aaland's wife had gone into labor and Aaland would not be returning, Rockwell delivered the remainder of his closing argument. The jury convicted Rockwell of driving under the influence

II.

[¶ 6] Rockwell claims he did not waive his state and federal constitutional right to assistance of counsel because the trial court failed to warn him of the dangers and disadvantages of self-representation.

[¶ 7] A criminal defendant's right to counsel is guaranteed by the Sixth Amendment of the United States Constitution and Article I, Section 12 of the North Dakota Constitution. State v. Wicks, 1998 ND 76, ¶ 16, 576 N.W.2d 518; State v. Poitra, 1998 ND 88, ¶ 7, 578 N.W.2d 121. Our standard of review for an alleged constitutional right is de novo. Wicks, 1998 ND 76, at ¶ 17, 576 N.W.2d 518; State v. Harmon, 1997 ND 233, ¶ 16, 575 N.W.2d 635. Denial of a defendant's constitutional right to counsel requires reversal of a conviction because prejudice is presumed. Wicks, 1998 ND 76, at ¶ 17, 576 N.W.2d 518; Poitra, 1998 ND 88, at ¶ 7, 578 N.W.2d 121.

[¶ 8] A corollary to a defendant's constitutional right to counsel is a defendant's right to self-representation if a defendant knowingly and intelligently elects to proceed pro se. Owens v. State, 1998 ND 106, ¶ 24, 578 N.W.2d 542; Poitra, 1998 ND 88, at ¶ 8, 578 N.W.2d 121; Harmon, 1997 ND 233, at ¶ 16, 575 N.W.2d 635; State v. Hart, 1997 ND 188, ¶ 6, 569 N.W.2d 451 (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). However, by electing to proceed pro se a defendant necessarily relinquishes many of the benefits of counsel. Hart, 1997 ND 188, at ¶ 6, 569 N.W.2d 451. For this reason, "[a] knowing and intelligent waiver of the right to counsel depends on the facts and circumstances and requires the defendant to be made aware of the dangers and disadvantages of self-representation so the record establishes the defendant knows what he is doing and his choice is made with eyes open." Poitra, 1998 ND 88, at ¶ 8, 578 N.W.2d 121; see also Wicks, 1998 ND 76, at ¶ 18, 576 N.W.2d 518. Self-representation may be a defendant's right, but it is "not a license to abuse the dignity of the courtroom, nor to ignore rules of procedure." Hart, 1997 ND 188, at ¶ 6, 569 N.W.2d 451. Thus, this court authorizes the appointment of standby counsel, over a defendant's objection, to assist the defendant and to represent the defendant if the defendant terminates his or her right to self-representation. Hart, 1997 ND 188, at ¶ 6, 569 N.W.2d 451.

[¶ 9] In this case, we must decide whether Rockwell voluntarily waived his right to counsel and, if so, whether that waiver was knowing and intelligent. This court discussed a similar argument in State v. Harmon, 1997 ND 233, 575 N.W.2d 635; State v. Wicks, 1998 ND 76, 576 N.W.2d 518; and State v. Poitra, 1998 ND 88, 578 N.W.2d 121. In Harmon, at ¶ 2, the defendant claimed he had a conflict of interest with his court-appointed attorney. Harmon's request for another court-appointed attorney was denied by the trial court. Id. After Harmon repeatedly requested appointment of substitute counsel following the denial of his initial request, the trial court relieved the appointed counsel of "actively defending" Harmon, but required the attorney to "remain available to the Defendant in a standby capacity for consultation during the Defendant's pretrial preparation and during the trial of these cases." Id. at ¶ 3. Harmon initially represented himself at trial, but subsequently allowed his standby counsel to participate. Id. at ¶ 7.

[¶ 10] On appeal, Harmon argued he did not waive his constitutional right to counsel

597 N.W.2d 410

because the record failed to establish he was informed of the dangers and disadvantages of proceeding pro se. Harmon, 1997 ND 233, at ¶ 15, 575 N.W.2d 635. This court concluded Harmon's continued requests for substitute counsel, after having had his requests for substitute counsel denied, must be considered the functional equivalent of a voluntary waiver of his right to counsel. Id. at ¶ 21; see also Carey v. State of Minnesota, 767 F.2d 440, 442 (8th Cir.1985) (per curiam); Meyer v. Sargent, 854 F.2d 1110, 1114 (8th Cir. 1988). We concluded Harmon's functional waiver was knowing and intelligent, and Harmon was informed of the dangers and disadvantages of proceeding pro se. Harmon, at ¶ 23.

[¶ 11] In State v. Wicks, 1998 ND 76, ¶ 5, 576 N.W.2d 518, the defendant filed a disciplinary complaint against her court-appointed attorney a few days before trial. Wicks claimed she filed the complaint to preserve the record for a later claim of ineffective assistance of counsel and did not know filing a complaint would cause her attorney to withdraw. Id. The court granted her attorney's oral motion to withdraw on the day of the trial and required Wicks to represent herself. Id. at ¶ 9. On appeal, Wicks...