Depp v. Com.
| Decision Date | 19 February 2009 |
| Docket Number | No. 2007-SC-000575-MR.,2007-SC-000575-MR. |
| Citation | 278 S.W.3d 615 |
| Parties | Nicholas L. DEPP, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Nicholas Depp, Appellant, was convicted of first-degree rape and first-degree sodomy, and was sentenced to fifteen years' imprisonment on each count, to run consecutively for a total of thirty years. He filed this appeal as a matter of right pursuant to Ky. Const. Section 110(2)(b).
A detailed recitation of the facts underlying Appellant's convictions is not necessary for analysis of the issues he raises in this appeal. Suffice it to say that Appellant and the alleged victim differed about whether their sexual encounters were consensual. The jury obviously believed the victim's version of events. The underlying facts of the offense, however, are not relevant to the issues in this case.
Appellant raises four issues on appeal: (1) the trial court failed to follow proper procedure under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); (2) the trial court failed to inform Appellant he could control standby counsel and failed to appoint standby counsel; (3) the trial court mislead him regarding service of subpoenas and refused to grant a continuance; and, (4) the trial court erred by not inviting Appellant to the bench during individual voir dire of potential jurors. Finding no error, this Court affirms.
Before the Appellant was even indicted, he wrote a letter to the trial court expressing his wish to represent himself, but recognizing the need for assistance: "[W]ith the hopes in receiving legal rep., for my up and coming jury trial, Judge Patton, I truly intended on representing myself, however I am unable to because of the many motions that need to be filed. . . ." He had strong opinions about the kind of attorney he needed, because, as he wrote, "I wouldn't want to get in the middle of this trial, and be forced to let my attorney go, because he or she slacks off because they don't wish to embarrass these two women. . . ."—clearly demonstrating that he knew he was in control of his defense and what his attorney might do.
When Appellant appeared for his arraignment, he reminded the trial court of his letter, and the court offered to appoint a public defender. By that time, Appellant had decided to "just go it alone." The trial court emphasized that the public defender had a high success rate at trial, but Appellant resisted. At that point, the trial court suggested that it appoint standby counsel, with whom Appellant could consult. The only person Appellant wanted was a jail inmate, but the trial court explained that the inmate could not represent him. Since Appellant continued to want to represent himself, the trial court told him a hearing under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), was required, set a date for the hearing, informed the Appellant of the charges against him, gave him a copy of the indictment and entered a plea of not guilty.
Subsequently, at the Faretta hearing, Appellant indicated that he now wanted a lawyer, but wanted to pick his own attorney, and again asked for the jail inmate. Again, the trial court praised the public defender's office, and explained that the inmate was not an attorney and thus could not represent the Appellant. Instead, the court was going to appoint the public defender. Appellant refused, saying he would rather cross-examine the victim witness himself. The trial court told Appellant that the attorney would ask the questions, but that Appellant could confer with the attorney, and had begun to explain further what the Appellant could say, when he interrupted,
At that point, the Commonwealth Attorney inserted the position that if Appellant represented himself, he would not have a constitutional right to cross-examine the victim witness pursuant to Partin v. Commonwealth, 168 S.W.3d 23 (Ky.2005). The trial court stated that would be dealt with "when the time comes," and proceeded with the Faretta hearing, ascertaining that Appellant understood he would have to abide by the rules of court and the rulings made by the trial court, and that he was competent and not coerced into representing himself. The trial court required Appellant to put his request to represent himself in writing and sign it in open court, and concluded, "Okay, I'm going to make a finding that you can represent yourself."
Appellant has a right under the Sixth Amendment of the United States Constitution to reject counsel and represent himself during a criminal proceeding. Faretta, 422 U.S. at 807, 95 S.Ct. 2525. However, the relinquishment of the right to counsel must be made "knowingly and intelligently." Id. at 835. Faretta did not require any specific form or magic words for there to be a knowing and voluntary choice to proceed pro se. It only required that the concerns it notes be addressed.
Following Faretta, this Court adopted a formulaic approach in determining whether a defendant waived counsel "knowingly, intelligently and voluntarily." Hill v. Commonwealth, 125 S.W.3d 221, 226 (Ky. 2004). However, shortly after Hill, the United States Supreme Court stated the following:
We have not, however, prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel. The information a defendant must possess in order to make an intelligent election, our decisions indicate, will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.
Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004).
In Tovar, the defendant, who was charged with drunken driving, told the trial court he wanted to represent himself and to plead guilty. The court then conducted the guilty-plea colloquy explaining the rights the defendant would have if he pleaded not guilty, and what would happen in regard to his rights if he instead pleaded guilty. The court explained the penalty ranges and the elements of the offense, and then accepted the guilty plea. Tovar was later sentenced to two days' incarceration. However, he had two subsequent DUI convictions, with representation of counsel. On the third occasion, he was charged with a felony, using the two prior convictions as enhancement. He resisted the felony charge by arguing that his first conviction must be excluded because his waiver of counsel was invalid. The trial court denied his motion, and sentenced him to the felony. The Iowa Court of Appeals affirmed, but the Iowa Supreme Court reversed and remanded for entry of judgment without considering the first conviction. The United States Supreme Court took review to clarify the requirements the Sixth Amendment imposes on waiver of counsel, as the federal courts were divided on the issue.
While Tovar involves waiver of counsel to enter a guilty plea, the U.S. Supreme Court pointed out that the analysis regarding whether waiver of counsel is adequate at any stage requires a pragmatic approach to right-to-counsel waivers, one that asks, "`what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance [counsel] could provide to an accused at that stage'. . . ." Id. at 89, 124 S.Ct. 1379 (quoting Patterson v. Illinois, 487 U.S. 285, 298, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988)). While what is required at different stages of the trial may vary, the 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. Since Faretta dealt with the defendant's right to represent himself at trial, and the concomitant right to not have counsel forced upon him, the U.S. Supreme Court held that the record must establish that he "knowingly and intelligently" chose to forgo the benefits of an attorney. The U.S. Supreme Court, looking at the record, determined that Tovar did voluntarily exercise his informed free will because of his personal characteristics and because the trial court had warned him that it was a mistake not to accept assistance of counsel and that he would be required to follow the rules of trial procedure. No "magic words" or formulaic approach were required.
This Court, in Hill, reiterated the Faretta holding that an accused was entitled to self-representation, or in that instance, co-representation. More specifically, however, the Court commented that this right was accompanied by the right to be informed by the trial court of the dangers inherent in doing so. The Court determined that the trial court must hold a hearing at which the defendant must testify that his choice is voluntary, knowing and intelligent; the trial court must warn the defendant of the dangers of relinquishing the benefits of an attorney; and the trial court must make a finding on the record that the waiver is voluntary, knowing and intelligent.
Clearly, this is a bright-line approach. But there are so few bright lines in law because most things are just not that simple. This case is a good illustration of why imposing rigid requirements in every instance is not necessary because it is clear the defendant indeed knew what he was doing, and why doing so would undermine judicial economy
In this case, Appellant...
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