Com. v. Terry, No. 2007-SC-000796-DG.

• Decision Date: 27 August 2009
• Docket Number: No. 2007-SC-000796-DG.
• Citation: 295 S.W.3d 819
• Parties: COMMONWEALTH of Kentucky, Appellant, v. Richard Wayne TERRY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

295 S.W.3d 819

COMMONWEALTH of Kentucky, Appellant, v. Richard Wayne TERRY, Appellee.

No. 2007-SC-000796-DG.

Supreme Court of Kentucky.

August 27, 2009.

Jack Conway, Attorney General of Kentucky, James Coleman Shackelford, Assistant Attorney General, Frankfort, KY, Counsel for Appellant.

Jamesa J. Drake, Assistant Public Advocate, Julia Karol Pearson, Department of Public Advocacy, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Chief Justice MINTON.

The United States Supreme Court held more than thirty years ago that a criminal defendant could not be forced to accept representation by a state-appointed attorney so long as the defendant was "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."¹ Although later decisions have shown that trial courts need not use "magic words" or repeat a standardized litany before granting a defendant's request for self-representation,² the requirement remains that a trial court must provide a defendant proposing self-representation enough information to demonstrate that the defendant's waiver of counsel was done with "eyes open."³

The trial court in this appeal, exasperated with Richard Wayne Terry's insistence on the day of trial that his counsel was not prepared for trial, permitted Terry to waive representation by counsel. But the trial court failed to take steps on the record to ensure that Terry's waiver of counsel was knowing, intelligent, and voluntary. The jury ultimately convicted Terry of possession of a controlled substance (cocaine) and possession of marijuana.

On appeal, the Kentucky Court of Appeals reversed the judgment, holding that the trial court failed to follow Faretta. We granted discretionary review to re-emphasize once again, that a trial court must comply with Faretta. Because the record does not reflect that the trial court held a meaningful Faretta hearing, we affirm the Court of Appeals.

I. FACTUAL AND PROCEDURAL HISTORY.

The grand jury indicted Terry on one felony count of trafficking in a controlled substance (cocaine) and one count each of the misdemeanor charges of possession of marijuana and illegal use or possession of drug paraphernalia. All charges proceeded to jury trial. On the day jury selection was to begin, Terry's court-appointed counsel, Krsna Tibbs, moved for a continuance. When the trial court denied a continuance, Terry filed a motion asking the trial court to remove Tibbs as his counsel. Terry's chief complaints were that Tibbs had been too busy to meet with him in advance of trial and had otherwise failed to communicate. Tibbs offered no rebuttal to Terry's complaints.

The trial court told Terry that his motion was belated and implored Terry to "shine" and "cooperate." The trial court stated that proceedings would recess for the day after the conclusion of jury selection so that Terry would have time to consult with Tibbs. Memorably, the trial court told Terry to "put your game face on and deal with this." During a later break in jury selection, Tibbs informed the trial court, at a time when Terry was absent from the courtroom, that Terry had refused to speak to him during jury selection. Tibbs again requested a continuance. The trial court again denied the continuance, commented upon Terry's "atrocious" body language, and stated that the trial court was concerned that Terry would not return to court the next day. The trial court later informed Terry that he needed to "sit up" and "make a good impression" on the prospective jurors.

The next morning, Tibbs stated in an ex parte hearing that communications between Terry and him had broken down to the point that he could not effectively represent Terry. According to Tibbs, Terry disagreed with Tibbs's trial strategy and had even suggested that Tibbs sit at the Commonwealth's table during the trial. Terry again voiced his displeasure with Tibbs's lack of preparation.

The trial court then asked Terry if he had dealt with the court system before, to which Terry responded in the affirmative. The trial court then informed Terry that he (Terry) could not choose his own appointed counsel but that he could proceed to represent himself if he so desired. Shortly after, Terry stated, "I'll represent myself," and further vowed that Tibbs "ain't going to represent me." Without conducting any colloquy with Terry, the trial court declared, "I'm going to let him represent himself." The trial court then ordered Tibbs to remain in the courtroom but ordered him not to do anything unless requested to do so by Terry. The trial court made no findings, either oral or written, that Terry's self-representation choice was made knowingly, intelligently, and voluntarily. The trial court simply advised Terry to smile at the jurors.

The jury acquitted Terry of possession of drug paraphernalia and trafficking in a controlled substance, but the jury convicted him of the lesser-included felony offense of possession of a controlled substance (cocaine), as well as the misdemeanor offense of possession of marijuana. The jury then recommended five years' imprisonment for the possession of cocaine offense and twelve months' incarceration and a $500 fine for the possession of marijuana offense.

The trial court sentenced Terry in accordance with the jury's recommendation, after which Terry filed a direct appeal in the Court of Appeals. Rejecting other claims, the Court of Appeals vacated Terry's convictions because "[t]here was no Faretta hearing and no finding that Terry's waiver of counsel was voluntary, knowing, and intelligent." The Commonwealth's motion for discretionary review in this Court was limited to the Faretta issue.⁴ We granted discretionary review and affirm the opinion of the Court of Appeals.

II. ANALYSIS.

Faretta requires that a defendant seeking self-representation 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."⁵ Because the colloquy between a defendant and the trial court need not follow a script, a determination of whether the eyes of a defendant who seeks to represent himself were sufficiently opened is a determination that must be made on a case-by-case basis.⁶ At a minimum, however, "before a defendant may be allowed to proceed pro se, he must be warned specifically of the hazards ahead."⁷ Or, as we recently explained, "the [Tovar] Court clarified as to the Sixth Amendment that the constitutional minimum for determining whether a waiver was `knowing and intelligent' is that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forgo the aid of counsel."⁸

Exhortations by a trial court to a defendant to "shine" and "cooperate" and to "sit up" and to "put your game face on" are insufficient to ensure that a defendant is knowingly, intelligently, and voluntarily seeking to waive counsel. Noticeably lacking in this case is any colloquy between the trial court and Terry in which the trial court warned Terry of the hazards of self-representation or cautioned Terry about the possible consequences of waiving counsel. The trial court's brief question about whether Terry had experience with the criminal justice system, although a proper topic in a full-blown Faretta hearing, is insufficient to comply with Faretta.

We reject the Commonwealth's contention that Terry's use of some legal language in his motion to remove Tibbs as counsel, which was actually not an explicit motion to proceed with self-representation, somehow shows that the trial court met Faretta's requirements. At most, Terry's motion demonstrated that Terry had some legal knowledge. But that motion did not show that Terry's later-expressed desire to waive counsel was knowing, intelligent, and voluntary.

This case is distinguishable from Depp, upon which the Commonwealth relies. In Depp, the trial court did hold a Faretta hearing, at which time Depp "was warned of the dangers of self-representation" and "was informed he would have to follow the rules of the court."⁹ So a majority of this Court concluded, "it is clear from the record that the trial court discussed self-representation issues with the Appellant on two separate occasions, made an adequate record for this Court to review for content and adequately complied with any duties it had with regard to Appellant's representation."¹⁰ By contrast, Terry had no Faretta hearing at all.¹¹

We held in Depp that a trial court must comply with Faretta's baseline requirements.¹² The only real question in Depp was whether Depp's convictions had to be reversed because the Faretta hearing was not expansive enough to meet the rigid, bright-line requirements we had laid down for Faretta hearings in Hill v. Commonwealth.¹³ A majority of this Court concluded that Hill was overly "formulaic"¹⁴ because "imposing rigid requirements in every instance is not necessary . . .,"¹⁵ So, using Faretta and Tovar as guideposts, the majority rejected Hill's bright-line approach for a more flexible, pragmatic approach in Depp, whereby an appellate court examines the entire record to determine if a defendant's waiver of counsel was knowing, intelligent, and voluntary.¹⁶ Depp, therefore, offers no solace to the Commonwealth because the record in this case does not show that Terry's waiver of counsel was knowing, intelligent, and voluntary.

We also reject the Commonwealth's contention that Terry's conduct constitutes a forfeiture of counsel or an implied waiver of counsel.¹⁷ The issue of whether a defendant may impliedly waive or forfeit his right to counsel by conduct is apparently a matter of first impression in Kentucky. But, as Terry's counsel correctly noted at oral argument, Terry expressly stated that he wanted to represent himself. So the doctrines of implied waiver...