DeFries v. State

• Decision Date: 28 February 1992
• Docket Number: CR-89-139
• Citation: 597 So.2d 742
• Parties: Johnny Ira DeFRIES v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 742

597 So.2d 742

Johnny Ira DeFRIES v. STATE.

CR-89-139.

Court of Criminal Appeals of Alabama.

Feb. 28, 1992.

As Modified on Denial of Rehearing

and Denial of Rule 39(k) Motion

March 27, 1992.

Johnny Ira DeFries, pro se.

James H. Evans, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Johnny Ira DeFries, the appellant, was charged with separate indictments with first degree sodomy and first degree rape. After a jury trial, at which he represented himself, he was acquitted of the sodomy charge, was convicted of the rape charge, and was sentenced to life imprisonment without the possibility of parole. He raises nine issues on this appeal of that conviction.

I

First, he complains that he was denied the right to a preliminary hearing guaranteed by Ala.Code 1975, § 15-11-1.

The appellant was initially arrested on a warrant for sodomy. He demanded a preliminary hearing at his arraignment for that offense. The hearing was set and twice continued, due to the non-appearance of the complaining witness. In the meantime, the appellant was indicted for sodomy and for rape.

The appellant's acquittal of sodomy renders this issue moot. "Only the count upon which appellant was found guilty is subject to appellate review." Hammond v. State, 354 So.2d 280, 284 (Ala.Cr.App.), cert. quashed, 354 So.2d 294 (Ala.1977), cert. denied, 439 U.S. 823, 99 S.Ct. 91, 58 L.Ed.2d. 115 (1978).

Moreover, the purpose of both a preliminary hearing and an indictment is to determine probable cause. See Duncan v. State, 369 So.2d 885, 887 (Ala.Cr.App.1979). "A repetitious inquiry [into] probable cause after indictment is not necessary." Elmore v. State, 445 So.2d 943, 945 (Ala.Cr.App.1983). Where an indictment is returned prior to the holding of a preliminary hearing, the accused is no longer entitled to a preliminary hearing. Herriman v. State, 504 So.2d 353, 357 (Ala.Cr.App.1987).

II

The appellant contends that his Sixth Amendment right of self-representation was infringed because he was deprived of the necessary tools to prepare an effective defense in his own behalf. He claims that the court erred by denying him the funds to hire an investigator, access to a law library, and the assistance of Leslie Watts, a fellow inmate, in preparing for his trial.

A.

The appellant filed and orally argued a motion for funds to hire an investigator. He insisted that because he was representing himself and was incarcerated, he needed an investigator to help him prepare for trial, specifically to inquire into allegations that the victim's family had made and had later retracted similar charges against other individuals. R. 83-84.

The trial court reminded the appellant that if he accepted appointed counsel, the attorney could "be not only your eyes and ears out in this county, but ... your legs too.... You've got a right as an indigent to that attorney to do all of that pre-trial investigation and preparation for trial.... An attorney would be most beneficial to you, at least in the investigative process." R. 86.

When the appellant persisted in his intention to represent himself, the court stated, "I've tried to give you some advice that you have not accepted, which that's your choice. You've got a perfect right not to do that." The trial judge then took the motion under advisement, stating that he "want[ed] to study up on this motion ... requesting funds to hire an investigator." R. 89.

The appellant did not bring the motion to the court's attention again until the day of trial. At that time he argued, on a motion for change of venue, that he could not get a fair trial in the county, in part, because he had "filed for the funds to hire an investigator to investigate the facts that surround this crime, and the courts still have it under advisement as best I know about." R. 110. The record does not show a ruling on the motion.

Notwithstanding the appellant's failure to pursue his motion in a timely manner, we assume that he in fact received an adverse ruling on his request for expert assistance. Based on the following authorities, we find no error in the trial court's failure to provide the appellant with funds to hire an investigator.

"When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel." Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). "Although a defendant may not be penalized for exercising his constitutional right to represent himself, Faretta v. California, [citation omitted], 'neither is he entitled to special treatment or benefits not afforded to defendants with counsel.' " State v. Smith, 66 Or.App. 374, 377, 675 P.2d 1060, 1063, review denied, 297 Or. 339, 683 P.2d 1370 (1984) (quoting State v. Addicks, 34 Or.App. 557, 560, 579 P.2d 289, 290, review denied, 284 Or. 80a, (1978)). Cf. Zeigler v. State, 432 So.2d 542 (Ala.Cr.App.1983) (pro se defendant generally not entitled to special consideration on appeal).

In Owen v. State, 272 Ind. 122, 396 N.E.2d 376 (1979), the Indiana Supreme Court observed the following:

"The trial judge may appoint or authorize the hiring of experts or lay investigators if, in his discretion, he thinks it necessary under the circumstances. We would disturb his judgment only if there was shown to be abuse of that discretion. Here, appellant chose to proceed pro se and so took upon himself responsibilities that an attorney would have had in representing him and voluntarily relinquished some aid that may have been available to him through an attorney."

Owen v. State, 272 Ind. at 127-28, 396 N.E.2d at 380-81. In a later case, the same court noted:

" '[O]f course a defendant may represent himself if he so desires. In such situation he must accept the burdens and hazards incident to his position.' ... One of the 'burdens and hazards' appellant took on by rejecting the offer to have counsel appointed for him was that of doing without the ... services an appointed attorney could have provided for him. We will not hear him now complain of these burdens and hazards he could have easily avoided."

Yager v. State, 437 N.E.2d 454, 458 (Ind.1982) (quoting Blanton v. State, 229 Ind. 701, 703, 98 N.E.2d 186, 187 (1951)). See also Roberts v. State, 268 Ind. 127, 130, 373 N.E.2d 1103, 1105 (1978) (wherein the court held that generally no abuse of the trial court's discretion is shown where a pro se defendant makes requests for "services which could have been performed by ... counsel"); 2 W. LaFave & J. Israel, Criminal Procedure § 11.2(d) at 26 (1984) ("[e]stablishing sufficient need for a special investigator appears to be especially difficult [for a pro se defendant], perhaps because it is assumed that investigation of the facts is ordinarily within the expertise of counsel") (footnotes omitted). See generally Annot., 34 A.L.R.3d 1256 (1970).

Here, the court informed the appellant that by choosing to represent himself he would forego many benefits, including investigative services, that counsel could perform for him. In People v. Marlowe, 167 A.D.2d 692, 692, 563 N.Y.S.2d 272, 273 (1990), appeal denied, 77 N.Y.2d 963, 570 N.Y.S.2d 497, 573 N.E.2d 585 (1991), the court observed that the accused's motion for funds to hire an investigator was one of "sundry pretrial motions ... for the most part directed at eliminating obstacles routinely encountered by pro se incarcerated litigants, difficulties about which defendant was generally made aware by [the trial] court and which defendant presumably took into account by choosing to represent himself." The same is true here. It is clear to us that the appellant "kn[ew] what he [was] doing and his choice [was] made with eyes open," Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942).

B.

It is settled that a pro se defendant who is incarcerated has a constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977); Peoples v. State, 531 So.2d 323, 326 (Ala.Cr.App.1988). See generally 2 W. LaFave & J. Israel, Criminal Procedure § 11.5(e) at 51 (1984). "[Alt]hough this right is not absolute or unconditional, restrictions may not deprive inmates of 'adequate, effective, and meaningful' access to the courts. Bounds, 430 U.S. at 822, 97 S.Ct. at 1495." Peoples, 531 So.2d at 326. In order to guarantee the right of access, incarcerated defendants must be provided with "adequate law libraries or adequate assistance from persons trained in the law." Bounds, 430 U.S. at 828, 97 S.Ct. at 1498 (footnote omitted). A prisoner is entitled to receive assistance from a fellow inmate unless prison officials provide reasonable alternative assistance. Johnson v. Avery, 393 U.S. 483, 490, 89 S.Ct. 747, 751, 21 L.Ed.2d 718 (1969).

We have searched the record and do not find that the appellant presented a request, either for access to law books or to the aid of a fellow inmate, to the circuit court before trial. The appellant first raised the issue of non-access to legal materials in his motion for new trial, when he claimed that the unavailability of a law library had prejudiced his defense. Compare People v. Smith, 216 Cal.Rptr. 98, 38 Cal.3d 945, 702 P.2d 180 (1985) (wherein the accused raised denial of access to legal materials three weeks prior to trial).

At the hearing on motion for new trial, the appellant called Sheriff's Deputy Glenn Dewald, supervisor of the Calhoun County jail as a witness. The following occurred:

"Q. [By the appellant]: Can you tell the court here if there were any discussions with you that concerned my having access to any law books or any other alternate [re]course to the courts? Did we ever discuss this matter?

"A. [By Officer Dewald]: I don't recall you ever asking for a law book. But you had several papers that were sent out and several papers that came in that I personally handed you and took...