Graves v. State

• Decision Date: 29 February 1996
• Docket Number: No. 24957,24957
• Citation: 912 P.2d 234,112 Nev. 118
• Parties: Arthur J. GRAVES Jr., Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

Page 234

912 P.2d 234

112 Nev. 118

Arthur J. GRAVES Jr., Appellant, v. The STATE of Nevada, Respondent.

No. 24957.

Supreme Court of Nevada.

Feb. 29, 1996.

Moran & Weinstock, and Andrew Leavitt, Las Vegas, for Appellant.

Frankie Sue Del Papa, Attorney General, Carson City; Stewart L. Bell, District Attorney and James Tufteland, Chief Deputy District Attorney, Las Vegas, for Respondent.

OPINION

SHEARING, Judge:

Police investigators observed appellant Arthur J. Graves, within hours after his release from the Clark County Detention Center, entering casinos, suspiciously walking up and down the aisles, observing and spying on casino patrons, and exiting. He allegedly attempted to steal from a patron at the Fremont Casino and a casino cage at the Horseshoe Casino. The next evening, after police investigators observed Graves and two individuals enter a casino, walk around observing patrons, and approach the patrons, but observing no criminal act, the police, without a warrant, arrested Graves.

On the first day of trial, Graves moved the court to allow him to represent himself. After canvassing Graves, the district court granted Graves's request, but postponed the trial for three weeks to allow him to prepare for trial. Graves objected, arguing that the postponement would deny him the right to trial within sixty days. The district court overruled Graves's objection. Graves was convicted at trial, pursuant to a jury verdict, on two counts of burglary.

On appeal, Graves claims that he did not knowingly and intelligently waive his right to counsel. He also asserts other errors: lack of substantial evidence to support the jury's verdict, improper joinder of charges, denial of his right to a speedy trial, and the warrantless arrest.

On the first day of trial, Graves's appointed attorney informed the district court that Graves wished to bring a motion before the court to be appointed as his own counsel. The following canvass ensued:

THE COURT: You desire to represent yourself still, Mr. Graves?

THE DEFENDANT: Yes.

THE COURT: I'm going to give you a canvas [sic], which we need to do to see if you're able to do that.

First off, let me say it amazes me you would want to do this. You have one of the best, if not the best criminal attorney [sic] in this town and you want to set him aside and represent yourself?

THE DEFENDANT: If it's okay with the Court I'd like to do that.

THE COURT: It's your choice to make. I just want you to know some of the things involved in making that choice.

You do know you have a constitutional right under the Faretta ruling to represent yourself if you wish to; do you?

THE DEFENDANT: Yes.

THE COURT: Have you talked this over with your attorney?

THE DEFENDANT: Yes, I have.

THE COURT: And you wish to represent yourself?

THE DEFENDANT: Yes, I do.

THE COURT: Do you think it would be in your best interest to do so?

THE DEFENDANT: Yes, I do.

THE COURT: I have to tell you that if you do represent yourself, that you'll be held to every standard as far as procedure and all the rules of the Court that you would have if you had the assistance of an attorney; do you understand that?

THE DEFENDANT: Why [sic], Your Honor.

THE COURT: You also understand you'll be giving up some rights, some constitutional rights which you might have had if you had an attorney when you act as your own attorney; do you understand that?

THE DEFENDANT: Right, Your Honor.

THE COURT: One of those rights is if you act as your own counsel you cannot then at a later time have an appealable issue on ineffective assistance of counsel because you'll be doing that yourself.

THE DEFENDANT: Right.

THE COURT: Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: So even if you are ineffective, no matter how ineffective you are, you lose that right at any later time on appeal to say that you had ineffective assistance of counsel; do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Have you had an opportunity to look at all the discovery that Mr. Amundson has provided you?

THE DEFENDANT: Yes, Your Honor, I've had preliminary transcript for over a month, I have the police reports. I'm ready, Your Honor. I've reviewed them several times.

THE COURT: I want you to know that I, especially in this case, since you have a good attorney representing you, that I think it's a mistake for you to represent yourself; do you understand that?

THE DEFENDANT: Yes.

THE COURT: I also have to inform you that you will have no license to abuse the dignity of the Court if you represent yourself; that is, I'll hold you to the same standard of decorum and same--and all the same rules if you represent yourself. And if it comes to the point you do disrupt the Court when you represent yourself, do you understand that I will then terminate your representation and assign an attorney to finish out the trial? Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: In other words, you just have to be as nice as an attorney would be in representing yourself.

THE DEFENDANT: I understand.

THE COURT: Sometimes that isn't too nice but you'll at least be held to that same standard; do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you also understand that at the time of trial, if you represent yourself, I'm going to appoint Mr. Amundson to be your stand-by counsel; do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And he'll be sitting there and you can ask him anything you wish to ask him about procedure, but I'll not allow him to react to the procedure in any other way. That is, I won't be allowing your stand-by counsel to make any objections or anything else during the course of a trial. When an objection is missed at trial it will be because you missed it and that's one of the penalties of representing yourself?

THE DEFENDANT: Yes.

THE COURT: But I will allow you at the time of trial, I'll give you time to talk to Mr. Amundson and inquire of him of any advice that you may need at the time of trial; do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: In the dissenting opinion of Feretta [sic], after they say that it's a constitutional right of a defendant to be able to represent himself, they also say that gives the defendant a constitutional right to make a fool of himself because of the old proverb which says one who represents himself has a fool for a client.

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you understand that?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And I want you to know that I feel that's true; do you know that?

THE DEFENDANT: I do.

THE COURT: I have to tell you, after I've seen many defendants represent themselves that I think that's more true than ever, that it's a foolish thing to do; do you understand that?

THE DEFENDANT: Yes.

THE COURT: Do you still want to do it?

THE DEFENDANT: Yes, I do, Your Honor.

THE COURT: All right. I'll allow you to represent yourself.

Graves argues that the district court's canvass was insufficient and requires reversal of his conviction because the district court never explained the facts, the nature of the charges or offenses, or potential defenses the defendant faced or could use. Graves further notes that the district court never explained the allowable punishments or the possibility of being sentenced under the habitual criminal statute. Finally, Graves notes that he had not represented himself previously and that the district court made no specific inquiry into his background and experience. Thus, he claims that he could not have knowingly and intelligently waived his rights.

The United States Supreme Court stated in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975):

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. at 279[, 63 S.Ct. 236 at 242, 87 L.Ed. 268].

... We need make no assessment of how well or poorly Faretta had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire. For his technical legal knowledge, as such was not relevant to an assessment of his knowing exercise of the right to defend himself.

Id. at 835-36, 95 S.Ct. at 2541 (footnote omitted).

We believe that the record clearly demonstrates that Graves was aware of the dangers and disadvantages of self-representation. The judge repeatedly warned Graves of the dangers and disadvantages and explicitly outlined many of them. As already noted in the Faretta quotation, no assessment need be made as to how well or poorly a defendant has mastered the intricacies of court procedures and rules. The only question is whether the defendant "competently and intelligently" chose self-representation, not whether he was able to "competently and intelligently" represent himself.

Faretta makes clear that the defendant's technical knowledge is not the relevant inquiry. 422 U.S. at 835-36. In order for a defendant's waiver of the right to counsel to withstand constitutional scrutiny, the judge need only be convinced that the defendant made his decision with a clear comprehension of the attendant risks. Trial judges must determine whether defendants waive their right to counsel with a full understanding of the disadvantages. This court will give deference to their decisions. Through face-to-face interaction in the courtroom, the trial judges are much more competent to judge a defendant's understanding than this court. The cold record is a poor substitute for demeanor observation.

The fact that the canvass did not expressly cover Graves's background, education or experience did not mean...