Clarke v. Zant

• Decision Date: 24 February 1981
• Docket Number: No. 36805,36805
• Parties: Harold CLARKE v. Walter D. ZANT, Warden.
• Court: Georgia Supreme Court

Page 49

275 S.E.2d 49

247 Ga. 194

Harold CLARKE v. Walter D. ZANT, Warden.

No. 36805.

Supreme Court of Georgia.

Feb. 24, 1981.

Harold Clarke, pro se.

Arthur K. Bolton, Atty. Gen., for Walter D. Zant, Warden.

CLARKE, Justice.

Clarke and two co-defendants were tried and convicted of armed robbery in Fulton County in 1979. The convictions were upheld in Aiken v. State, 152 Ga.App. 662, 264 S.E.2d 336 (1979). Clarke represented himself during the armed robbery trial and his co-defendants were represented by counsel. Clarke then filed this petition for habeas corpus on the ground that his right to assistance of counsel is guaranteed by the Sixth and Fourteenth Amendments of the Federal Constitution but was violated in that he did not make a valid waiver of counsel prior to trial. The habeas court found petitioner's right to counsel had not been violated and we found probable cause to grant this appeal.

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), held that while a criminal defendant has an absolute right to counsel in any prosecution which could result in imprisonment, the accused also has a fundamental right to represent himself in a state criminal trial "when he voluntarily and intelligently elects to do so." Faretta at 806, 95 S.Ct. at 2525, Faretta also states at 835, 95 S.Ct. at 2541: "Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware 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.' Adams v. United States ex rel. McCann, 317 U.S. (269) at 279, 63 S.Ct. (236) at 242 (87 L.Ed. 268)." Faretta had requested that he be allowed to represent himself. This request was ultimately refused and he was represented by appointed counsel. His conviction was reversed, the court holding that a state may not force counsel on the accused when there is a knowing and intelligent election to proceed pro se.

The evidence at the habeas hearing consisted of the testimony of Clarke and that of the public defender who represented a co-defendant at trial. Clarke testified that he is forty-five years old, has a third grade education and can read and write "a little." He further testified that he had been in court on three separate charges over the past twenty years and that on two of those occasions he had retained counsel and on the other case had an appointed attorney. It is uncontradicted that initially a public defender was appointed to represent Clarke who was apparently dissatisfied with the attorney's advice. A second attorney from the Fulton County Public Defender's office, Mr. Willix, was then appointed. Willix represented a co-defendant at Clarke's trial and testified at the habeas proceeding.

Willix testified he interviewed Clarke at jail and that Clarke was adamant that he wanted to represent himself. He further stated that the trial judge's general practice is not to allow a defendant to represent himself unless that defendant is certain in his choice to proceed without an attorney. Willix also stated that he represented a co-defendant at trial and that he was appointed by the court to assist Clarke during the trial. The Fulton County Public Defender's office filed a motion for new trial on behalf of Clarke and his co-defendants and also filed an appeal on their behalf. It is apparent from the record that Clarke did know that he had a right to hire counsel, and that counsel would be appointed if he could not afford one. He made no attempt to retain counsel in this case. He was dissatisfied with the first appointed counsel, and did not want the services of the second appointed counsel as he felt they "were all the same." Willix testified that Clarke was at all times pleasant with him, but remained firm in his decision to represent himself.

Mr. Clarke testified that the trial judge never inquired of him personally concerning his decision to proceed without counsel. The record is totally silent as to whether the trial court personally questioned Clarke about his decision to proceed pro se. The respondent contends that even without such a record, there is ample evidence to support the finding below that Clarke made a valid waiver of counsel and knowingly and voluntarily elected to represent himself "with eyes open."

In determining whether or not an accused has adequately waived his right to counsel and elected to exercise his constitutional right to represent himself, the courts will apply the standard set forth in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1937). Faretta v. California, supra. Taylor v. Ricketts, 239 Ga. 501, 238 S.E.2d 52 (1977), applied the Johnson v. Zerbst standard that "A waiver is ordinarily an intentional relinquishment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the experience and background of the accused." Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023. It is also clear from Johnson v. Zerbst that the trial judge has the responsibility of determining whether the accused has intelligently waived his right to counsel. "The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused...