Kelly v. State

• Docket Number: F-2021-1390
• Decision Date: 21 December 2023
• Citation: 2023 OK CR 21
• Parties: ALONZO JOHN KELLY III, Appellant v. THE STATE OF OKLAHOMA, Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

2023 OK CR 21

ALONZO JOHN KELLY III, Appellant
v.
THE STATE OF OKLAHOMA, Appellee

No. F-2021-1390

Court of Criminal Appeals of Oklahoma

December 21, 2023

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY, THE HONORABLE SHARON K. HOLMES, DISTRICT JUDGE

BRIAN MARTIN ATTORNEY AT LAW COUNSEL FOR DEFENDANT

JAMES H. LOCKARD DEPUTY DIVISION CHIEF HOMICIDE DIRECT APPEALS DIVISION COUNSEL FOR APPELLANT

KENNETH ELMORE ASST. DISTRICT ATTORNEY COUNSEL FOR STATE

JOHN M. O'CONNOR ATTY. GENERAL OF OKLAHOMA THEODORE M. PEEPER ASSISTANT ATTORNEY GENERAL COUNSEL FOR APPELLEE

OPINION

ROWLAND, PRESIDING JUDGE

¶1 Appellant Alonzo John Kelly III, appeals his Judgment and Sentence from the District Court of Tulsa County, Case No. CF-2016-1521, for First Degree Murder, in violation of 21 O.S.Supp.2012, § 701.7 (A). The Honorable Sharon K. Holmes, District Judge, presided over Kelly's jury trial and sentenced him, in accordance with the jury's verdict, to life imprisonment. ^[1] Kelly appeals raising the following issues:

(1) Whether the trial court committed reversible error in refusing to allow him to exercise his constitutional right to represent himself at trial

(2) whether he was denied his constitutional and statutory right to a speedy trial

(3) whether the 'earwitness' identification violated his right to due process;

(4) whether the flight instruction was given in error; and

(5) whether he received the effective assistance of trial counsel.

¶2 Because this case requires relief, we address only the first two propositions which request, respectively, that the case be reversed and remanded for a new trial and that the case be reversed with instructions to dismiss.

1.

¶3 Kelly argues that the trial court's denial of his request to represent himself violated his fundamental right to self-representation as is guaranteed under the Sixth Amendment. Faretta v. California, 422 U.S. 806, 818 (1975); Mitchell v. State, 2016 OK CR 21, ¶ 4, 387 P.3d 934, 937. Under Faretta, a trial court has no discretion to deny a valid request for self-representation. Parker v. State, 1976 OK CR 293, ¶ 5, 556 P.2d 1298, 1300-01 (overruling pre- Faretta cases which held self-representation was a discretionary matter for courts to decide). Violation of the right to self-representation is structural error which can never be harmless. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (The right to self-representation "is either respected or denied; its deprivation cannot be harmless."). The scope of our review is therefore essentially whether Kelly made a valid request for self-representation, which the trial court denied.

¶4 This Court reviews the totality of the circumstances to determine whether there has been a valid waiver of the right to the assistance of counsel. Mitchell, 2016 OK CR 21, ¶ 11, 387 P.3d at 939; Mathis v. State, 2012 OK CR 1, ¶ 7, 271 P.3d 67, 72. The factors considered when making this determination are: (1) whether the defendant was competent to make the decision; (2) whether the request for self-representation was clear and unequivocal; and (3) whether the defendant "knowingly and intelligently" waived the benefits of counsel, after being informed of "the dangers and disadvantages of self-representation." Mathis, 2012 OK CR 1, ¶ 7, 271 P.3d at 72 (citing Faretta, 422 U.S. at 835; Parker, 1976 OK CR 293, ¶¶ 5-6, 556 P.2d at 1300-01; Fitzgerald v. State, 1998 OK CR 68, ¶ 6, 972 P.2d 1157, 1162). It is important to note that "[n]o particular knowledge of law or courtroom procedure is required." Mitchell, 2016 OK CR 21, ¶ 4, 387 P.3d at 937 (citing Coleman v. State, 1980 OK CR 75, ¶ 5, 617 P.2d 243, 245; Faretta, 422 U.S. at 836).

¶5 After a continuance requested by the State, trial was set for August 26, 2019. Three weeks before trial, at a hearing held on August 5, 2019, Kelly's defense counsel was allowed to withdraw from representation due to Kelly's dissatisfaction with him. At this hearing, the trial court noted that Kelly had been filing some of his own motions. The trial court asked Kelly if he intended to represent himself. Kelly replied that he did, and a Faretta hearing was subsequently held on September 4, 2019. At this hearing, Kelly affirmed that he had no physical, emotional, or other impediments that would operate to prevent him from understanding the Faretta hearing. The trial court explained the purpose of defense counsel and advised Kelly that he would be held to the same standard as an attorney. The trial court explained the seriousness of the charge, and why self-representation would not be a good idea. The trial court discussed voir dire with Kelly and explained that he would not have access to the same resources as an attorney. The trial court warned him of the danger of not understanding the evidence code or how to make proper objections. Toward the end of the hearing Kelly agreed that self-representation was probably not a good idea. When asked to convince the trial court why he should represent himself, Kelly responded, "Well, I guess I can't." While still strenuously advising against self-representation, the trial court told Kelly that it would appoint him new counsel if he wanted. Kelly abandoned his request to proceed pro se and agreed to accept another appointed attorney.

¶6 Kelly was appointed new counsel in September of 2019. Despite this representation, Kelly continued to file numerous pro se motions. On October 14, 2020, Kelly filed a pro se affidavit concerning his court appointed counsel in which he outlined numerous alleged failings of counsel. A few days later he filed a document titled "John Kelly's Marsden Motion" in which he alleged that he was not receiving effective assistance of counsel. Subsequently, on November 9, 2020, a few weeks before trial which had been set for November 30, 2020, Kelly filed a notice of his intent to waive the assistance of counsel and proceed to trial pro se. Pursuant to his request, a second Faretta hearing was held on November 12, 2020.

¶7 At this Faretta hearing Kelly explained that he was waiving his right to counsel because he was not receiving effective assistance of counsel. He explained that counsel was not communicating with him and he complained that he did not know what was going on with his case. He stated that he did not intend to slow the trial because it had been going on for too long. The trial court asked Kelly about his educational background and Kelly responded that he had dropped out of school in ninth grade, but he continued to educate himself....