Grant v. State

• Decision Date: 24 October 2007
• Docket Number: No. 09-06-172 CR.,09-06-172 CR.
• Citation: 255 S.W.3d 642
• Parties: Kiheem GRANT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

255 S.W.3d 642

Kiheem GRANT, Appellant, v. The STATE of Texas, Appellee.

No. 09-06-172 CR.

Court of Appeals of Texas, Beaumont.

Submitted February 28, 2007.

Decided October 24, 2007.

Douglas M. Barlow, Beaumont, for appellant.

Tom Maness, Criminal District Atty., Wayln G. Thompson, Assistant Criminal District Atty., Beaumont, TX, for state.

Before GAULTNEY, KREGER and HORTON, JJ.

OPINION

DAVID GAULTNEY, Justice.

Kiheem Grant was convicted of murder. The jury assessed punishment at incarceration for life and a fine in the amount of $10,000.

Grant raises six issues in this appeal. In his first two issues, Grant argues the trial court did not properly warn him of the dangers of self-representation, and through his deficient self-representation, he contributed to his own conviction. In issue three, he complains of the shackles used to restrain him during the trial. In issue four, he raises error in the procedure followed for his opening statement. In issues five and six, he says the trial court erred in not giving him more time to review written statements of witnesses before cross-examination. Finding no reversible error, we affirm the trial court's judgment.

THE RIGHT TO SELF-REPRESENTATION

The first two issues Grant presents are:

1. The trial court failed to admonish appellant sufficiently concerning the dangers of self-representation.

2. Appellant was denied his right to counsel.

The rights to assistance of counsel and to self-representation are protected by the Sixth Amendment of the United States Constitution, made applicable to the States by the Fourteenth Amendment. See Faretta v. California, 422 U.S. 806, 818-21, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). See also United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). "The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment." Faretta, 422 U.S. at 807, 95 S.Ct. 2525; see also Argersinger v. Hamlin, 407 U.S. 25, 37-38, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 343-345, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In Faretta, the Supreme Court held that the Sixth Amendment not only affords an accused facing an adversarial criminal proceeding the right to a defense, but the Sixth Amendment also "grants to the accused personally the right to make his defense." Faretta, 422 U.S. at 819, 95 S.Ct. 2525. As the Court noted:

Although not stated in the Amendment in so many words, the right to self-representation — to make one's own defense personally — is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.

Id. at 819-20, 95 S.Ct. 2525 (footnote omitted). The Court explained that it is for the defendant personally to decide whether assistance of counsel in his particular case is to his advantage, and his choice must be honored out of "`that respect for the individual which is the lifeblood of the law[,]'" even if his choice may ultimately be to his own detriment. Id. at 834, 95 S.Ct. 2525 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring)). It has been observed that the two constitutional rights — to assistance of counsel and to self-representation — are "mutually exclusive," and their "clash" can create difficult situations for trial courts. See Tuitt v. Fair, 822 F.2d 166, 174 (1st Cir.1987).

Immediately upon opening court in this case, and outside the presence of the venire panel, the following took place:

THE COURT: This is Cause No. 90653, the State of Texas vs. Kiheem Grant. Are you Mr. Grant?

THE DEFENDANT: Yes, I am.

THE COURT: Okay. Mr. Grant, it's been brought to my attention that maybe you want to represent yourself in this case?

THE DEFENDANT: Yeah, yes, sir.

THE COURT: Are you sure about that?

THE DEFENDANT: Yes, sir.

THE COURT: You understand that you have an absolute right if you can't afford an attorney that I will appoint one. In fact, I've appointed a board certified attorney by the name of Doug Barlow to represent you. And Mr. Barlow has been working on your case and, from what I understand, is ready to go to trial on your behalf today. But you have an absolute right to represent yourself if that's what you chose to do.

THE DEFENDANT: I want to represent myself.

THE COURT: Do you have any questions about the pitfalls, about how it's not in your best interest for you to represent yourself? Do you have any questions about that?

THE DEFENDANT: No.

THE COURT: I'm gonna let you represent yourself. Mr. Barlow, you're gonna be standby counsel. And we're ready to proceed.

Grant represented himself through the trial. Appointed counsel and another attorney were present at trial to assist Grant as standby counsel. Appointed counsel represents Grant in this appeal. Arguing his first two appellate issues together, Grant contends the waiver of his right to assistance of trial counsel and the assertion of his right to self-representation are invalid because the inquiry conducted by the trial court was deficient.

A decision to represent oneself must be made knowingly, intelligently, and voluntarily. Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (citing Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942); Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). In Godinez v. Moran, 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993), the Supreme Court contrasted a "knowing and voluntary" inquiry from a competency inquiry:

The focus of a competency inquiry is the defendant's mental capacity; the question is whether he has the ability to understand the proceedings. See Drope v. Missouri, [420 U.S. 162, 171, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)] (defendant is incompetent if he "lacks the capacity to understand the nature and object of the proceedings against him") (emphasis added). The purpose of the "knowing and voluntary" inquiry, by contrast, is to determine whether the defendant actually does understand the significance and consequences of a particular decision and whether the decision is uncoerced. See Faretta v. California, [422 U.S. at 835, 95 S.Ct. 2525] (defendant waiving counsel must 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'") (quoting Adams v. United States ex rel. McCann, [317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).]

Godinez, 509 U.S. at 401 n. 12, 113 S.Ct. 2680 (emphasis in original); accord Moore v. State, 999 S.W.2d 385, 396 n. 5 (Tex. Crim.App.1999). Quoting Chapman v. United States, 553 F.2d 886, 892 (5th Cir. 1977), the First Circuit in Tuitt explained:

The election to defend pro se entails the waiver of the right to be represented by counsel. Hence the right of self-representation is conditioned on the "knowing and intelligent" relinquishment of the right to counsel.... Lest there be a case in which a defendant clearly asserts the right to defend pro se (so that the denial of the right would be error) without clearly waiving the right to counsel (so that there remains some question whether the waiver was knowing and intelligent), a trial judge should engage in a dialogue with such a defendant, explaining to him the consequences of defending pro se.

Tuitt, 822 F.2d at 174. The Supreme Court has not prescribed any "formula" or "script" to be read to a defendant who wants to forego counsel and represent himself; "[t]he information a defendant must possess in order to make an intelligent election ... 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) (citing Zerbst, 304 U.S. at 464, 58 S.Ct. 1019).¹

The Texas Court of Criminal Appeals has indicated that a trial court need not admonish a defendant on the dangers of one form of hybrid representation, when he is "fully represented by counsel" although he "partially represented himself[.]" See Maddox v. State, 613 S.W.2d 275, 286 (Tex.Crim.App.1980) (op. on reh'g) (quoting Phillips v. State, 604 S.W.2d 904, 908 (Tex.Crim.App.1979)); see also Houston v. State, 201 S.W.3d 212, 219-20 (Tex.App.-Houston [14th Dist.] 2006, no pet.) (hybrid representation). Some Texas courts of appeals have suggested this holding may apply to situations where the defendant's attorney remains in the case as standby counsel in the event the defendant wants to utilize the attorney's services.² Standby counsel is one consideration, but in our view Faretta admonishments should be given regardless of the appointment of standby counsel. See McKaskle, 465 U.S. at 176-88, 104 S.Ct. 944 (the role of standby counsel); see also United States v. Davis, 269 F.3d 514, 519-20 (5th Cir.2001) (Standby assistance of counsel does not satisfy the right to counsel.).

Although we do not regard appointment of standby counsel as relieving the trial court of the responsibility to admonish a defendant of the dangers of self-representation, the admonishment itself is not the ultimate issue before this Court. The State cannot force a defendant to have a lawyer. See Faretta, 422 U.S. at 820-21, 834, 95 S.Ct. 2525. A defendant has a constitutional right to represent himself. Id., 422 U.S. at 819-20, 95 S.Ct. 2525. Grant made his choice to represent himself on the record. The ultimate issue this Court must determine is whether, under the...