Koehler v. State
| Decision Date | 27 October 1986 |
| Docket Number | No. 1185S454,1185S454 |
| Citation | 499 N.E.2d 196 |
| Parties | Kenneth KOEHLER, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Supreme Court |
Anne B. Coffman, Jeffersonville, for appellant.
Linley E. Pearson, Atty. Gen., Joseph N. Stevenson, Deputy Atty. Gen., Indianapolis, for appellee.
Today we deal with a "jailhouse lawyer" who realized his folly in electing self-representation but was prevented from correcting his mistake.
Appellant Kenneth "Robin" Koehler proceeded pro se before a jury against a charge of battery, a class C felony, Ind.Code Sec. 35-42-2-1(3) (Burns 1985 Repl.). After the jury found him guilty of battery but before his habitual criminal hearing began, Koehler requested that his standby counsel take over the defense. The trial court refused his request, and Koehler continued to represent himself. He was found to be an habitual criminal, Ind.Code Sec. 35-50-2-8 (Burns 1985 Repl.), and sentenced to a total of 38 years in prison. We reverse the habitual offender finding because we conclude Koehler was denied his constitutional right to counsel in that proceeding. We remand this cause for a new hearing on the habitual offender charge.
The evidence at trial showed Koehler cut the neck of his victim during a scuffle in his girlfriend's apartment. Koehler claimed he acted to protect his girlfriend. At Koehler's initial hearing on June 4, 1984, a public defender was appointed to represent him. Koehler was dissatisfied with that attorney's performance, so another public defender was appointed in his place. Still displeased with defense efforts, Koehler filed a motion to substitute counsel on January 24, 1985. It was denied. On March 11, 1985, Koehler moved to dismiss his attorney and proceed pro se. After a hearing, the court granted the motion and appointed a third public defender as standby counsel. Appointment of standby counsel is an appropriate prophylactic device when the defendant assumes the burden of conducting his own defense in a criminal trial. Jackson v. State (1982), Ind.App., 441 N.E.2d 29.
Koehler subsequently represented himself throughout the proceedings. He allowed the public defender to offer advice and occasionally handle motions or objections, but he conducted all examination of the witnesses. Koehler exhibited only a rudimentary knowledge of the law. His method of questioning was ineffective and often damaging to his case. For instance, he elicited testimony from several witnesses concerning his criminal record and his release from prison only four days before this incident. His questions were frequently ambiguous and repetitive. Though the trial judge exercised monumental patience, she felt compelled to admonish Koehler for dilatory tactics.
After the jury returned the verdict of guilty, Koehler informed the judge that he could not adequately conduct his own defense in the habitual criminal proceeding. He requested that standby counsel represent him because she was familiar with the case, having counseled and accompanied him throughout his trial on the underlying offense of battery. The State objected, contending that Koehler had waived his right to counsel by proceeding pro se and thus had to bear the hazards of his choice. The trial court refused Koehler's request, and he represented himself during the habitual offender proceedings.
Koehler now claims that the trial court violated his Sixth Amendment right to counsel by refusing to appoint counsel for the habitual offender hearing. Appellee contends that Koehler's waiver of his right to counsel continued through the habitual offender stage and that his ineffective performance was just one of the "burdens and hazards" which a pro se defendant must accept after refusing representation by counsel, citing Engle v. State (1984), Ind., 467 N.E.2d 712. Engle involved a defendant who voluntarily defended himself throughout trial and then claimed inadequacy of counsel on appeal--quite a different situation than that presented here.
The Sixth Amendment of the United States Constitution and Art. I, Sec. 13 of the Indiana Constitution guarantee the right to counsel at any critical stage of prosecution where counsel's absence "might derogate from the accused's right to a fair trial." United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149, 1158 (1967). See also, Pirtle v. State (1975), 263 Ind. 16, 323 N.E.2d 634. The defendant has a right to counsel in a habitual offender proceeding. Chewning v. Cunningham, 368 U.S. 443, 82 S.Ct. 498, 7 L.Ed.2d 442 (1962).
Correlative to the constitutional right to counsel is the right of a defendant in a criminal proceeding to appear pro se. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581 (1975).
This right is absolute only prior to trial. Russell v. State (1978), 177 Ind.App. 138, 378 N.E.2d 872. A trial court on its own motion may terminate pro se representation and appoint counsel in the midst of trial when the court believes the defendant is unable to represent himself. Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Furthermore, it is within the trial court's discretion to allow a defendant to eschew counsel and represent himself after trial has begun. Russell v. State, 177 Ind.App. 138, 378 N.E.2d 872.
The reverse situation is presented here. Only a few appellate courts have been faced with the case of a defendant who seeks to abandon his pro se defense after trial has begun and to reassert his right to counsel. See, Annotation, Accused's Right to Represent Himself, 98 ALR3d 13 (1980). Several states have determined that it is within the trial court's discretion to appoint counsel after a defendant begins the trial pro se. See, Commonwealth v. Jackson, 376 Mass. 790, 383 N.E.2d 835 (1978); Smith v. State, 150 Ga.App. 498, 258 S.E.2d 167 (1979); People v. Elliott, 70 Cal.App.3d 984, 139 Cal.Rptr. 205 (1977). The California appellate courts, for instance, will reverse a trial court's ruling on any midtrial requests for a change in representation only upon a showing of an abuse of discretion. This standard applies irrespective of whether the defendant sought to assume his own defense or to have counsel take it over. People v. Elliott, id.; People v. Windham, 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187 (1977).
... (R)elevant factors must be considered by the trial court in order for it to exercise a meaningful discretion in ruling on defendant's request to change from self-representation to counsel-representation.... Relevant factors should include, among others, the following: (1) defendant's prior history in the substitution of counsel and in the desire to change from self-representation to counsel-representation; (2) the reasons set forth for the request; (3) the length and stage of the trial proceedings; (4) disruption or delay which reasonably might be expected to ensue from the granting of such motion; and (5) the likelihood of defendant's effectiveness in defending against the charges if required to continue to act as his own attorney.
People v. Elliott, 139 Cal.Rptr. at 211.
Applying these factors to the case at bar, we conclude that it was an abuse of discretion to refuse Koehler's request for counsel. While Koehler had fired two attorneys, he made the decision to proceed pro se before trial and did not change his mind until trial on the battery charge had concluded. Koehler's stated reasons for requesting counsel at this late stage were legitimate; he acknowledged that he was unfamiliar with the legal intricacies of an habitual offender hearing and thus could not adequately defend himself. His poor performance during the battery trial supported his statement. Furthermore, Koehler's request came at an opportune moment between trial on the battery charge and the habitual offender proceeding. The State does not allege the appointment of counsel would have created any delay. No continuance would have been necessary because standby counsel was familiar with the case. Lastly, Koehler had failed miserably as defense counsel during the battery trial and there was no reason to believe he would have fared any better during the habitual proceeding.
The purpose of the Sixth Amendment guarantee of representation is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights and to assure him the guiding hand of counsel at every step in the proceeding. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The policy underlying the correlative right of self-representation is personal autonomy; the defendant is the one who must suffer the consequences of his decision as to counsel, so he is entitled to choose his advocate--a lawyer or himself. Faretta v. United States, 422 U.S. 806, 95 S.Ct. 2525. In this case, Koehler belatedly recognized his own inadequacy as defense attorney and sought to forestall further damage by abandoning his own defense and relying instead on trained counsel.
It would be illogical to bar all opportunity for reasserting one's right to counsel once a defendant realizes his mistake in proceeding pro se. Such action would amount to closing the exits to a maze once the defendant admits he is lost within it. However, today's holding is limited to the rather special situation in which a defendant with standby counsel already at his side desires to turn over his defense under circumstances which do not disadvantage any of the other participants in the trial. A different result may be possible when the defendant does not have standby counsel prepared to assume representation without an interruption of the...
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