McLeod v. State

Decision Date03 August 1990
Docket Number4 Div. 405
PartiesJackie McLEOD v. STATE.
CourtAlabama Court of Criminal Appeals

Bobbie S. Crook, Dothan, for McLeod.

Jackie McLeod, pro se.

Don Siegelman, Atty. Gen., and Beth Jackson Hughes, Asst. Atty. Gen., for the State.

BOWEN, Judge.

Jackie McLeod was charged in four separate indictments with the unlawful distribution of cocaine in violation of Ala.Code § 13A-12-211 (1975). On motion of the State, these indictments were consolidated for trial. A jury found McLeod guilty in all four cases and he was sentenced as a habitual felony offender to life imprisonment in each case. McLeod represented himself at trial and is appearing pro se on appeal. 1 He raises eleven issues in this appeal.

I

McLeod contends that he did not voluntarily and intelligently waive his right to counsel because he was not informed of the dangers and disadvantages of self-representation prior to being allowed to proceed pro se.

Tom Motley was originally appointed to represent McLeod at trial and appeared with McLeod at his arraignment on March 10, 1989. On March 28, 1989, McLeod filed a pro se "Motion to Dismiss Court-Appointed Attorney." A hearing was held on this motion on April 17, 1989. Both McLeod and Motley were present at this hearing, at which the following occurred:

"THE COURT: Mr. McLeod, you have made a motion in these cases to dismiss your court appointed attorney, Tom Motley, and have asked to represent yourself. Of course, I want it to be very clear about whether or not you should represent yourself, or whether or not that is what you really want to do. You have filed a written motion, and previously in previous cases [sic], the Court had appointed Mr. Motley to be your attorney to assist you in your defense. Now you want to dismiss him. Are you sure that is what you want to do?

"MR. MCLEOD: Yes, sir.

"THE COURT: You want to represent yourself?

"MR. MCLEOD: Yes, sir.

"THE COURT: Do you understand that it would be more to your best interest to be represented by an attorney such as Mr. Motley; do you understand that?

"MR. MCLEOD: Yes, sir.

"THE COURT: You know that in another case where you represented yourself, you later on filed a motion for a new trial on the basis that you did represent yourself?

"MR. MCLEOD: Yes, sir.

"THE COURT: Do you still want to represent yourself?

"MR. MCLEOD: Yes, sir.

"THE COURT: You waive the right to a court-appointed counsel to represent you?

"MR. MCLEOD: I waive the right for a court-appointed attorney to represent me and stand by.

"THE COURT: I recognize for a layman--your expertise for a layman. I still say it would be best for Mr. Motley to represent you.

"MR. MOTLEY: If I could for the record?

"THE COURT: Go ahead.

"MR. MOTLEY: Mr. McLeod and I talked about this. I explained to him what my theory would be and how I would like to proceed in putting on evidence and defending him. Mr. McLeod had definite ideas of what he thinks should be taken in front of the jury than I do--differing ideas than I do. After going on and telling him the pitfalls of going ahead with his case this way, he still--he is still deciding it would be in his best interest to go ahead and proceed and let himself put on his evidence in the manner which he feels would show the jury his innocence of these charges. For that reason, I concur, because I really don't agree with the way Mr. McLeod would put on his defense.

"MR. MCLEOD: The main reason is in the past Mr. Motley did a good job. He won a case for me, and I appreciated that.

"Here the problem is now: I haven't seen Mr. Motley since we had arrangements [sic]. That was March tenth, and I haven't been able to talk to Mr. Motley until Friday night at 10:30 at the county jail. You tell me how we're going to put on a defense and have a jury trial when we don't even know the date.

"We have four cases here on drugs. Mr. Motley will tell you that just a while ago he gave me a copy of the preliminary hearing transcript which will tell the date the drugs were sold. How can we have a jury trial today 2 when he haven't [sic] been able to talk to me about the alibi witnesses, when the D.A. didn't give him the date of the alleged sale, which is not in the indictment? How can I put on an alibi defense with Mr. Motley, and he ain't got nothing to go with?

"THE COURT: I know Mr. Motley is an able trial lawyer--

"MR. MCLEOD: (Interposing) Well, Your Honor--

"THE COURT: (Interposing) Just a minute. We are taking down all kinds of discussions.

"MR. MCLEOD: That is the reason I want to try--the way--all I can do is use fancy words in front of the jury. So far we ain't--we haven't subpoenaed no witnesses for trial.

"THE COURT: Let me go ahead and rule on your motion. We have gone through all of this. It appears to me that you intelligently know what you're doing about waiving counsel.

"MR. MCLEOD: Yes, sir.

"THE COURT: Although I have told you that it is generally not a good idea, but I will honor your request and relieve Mr. Motley and grant your motion to proceed pro se as your own attorney. Of course, you'll be required to operate, generally, within the same rules of evidence like everybody else. You have appeared in the past to have a lot of knowledge about that.

"I will abide by your wishes, and I will grant your motion to represent yourself pro se. I want to make sure that is what you want to do.

"MR. MCLEOD: Yes, sir, that is what I want to do."

(Emphasis and footnote added.)

An accused has a constitutional right to represent himself where his decision to proceed without counsel is voluntarily and intelligently made. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In determining whether an accused's waiver of counsel was in fact voluntarily and intelligently made, some courts "require that a trial court expressly admonish a defendant of the dangers and pitfalls of self-representation." Teske v. State, 507 So.2d 569, 571 (Ala.Cr.App.1987).

Alabama, however, does not subscribe to this view. Instead, our courts follow the modern trend which "require[s] only that it appear from the record as a whole that a defendant's waiver of counsel and decision to represent himself were knowing and intelligent." Teske, 507 So.2d at 571. Under this approach, "the focus of the inquiry is not on the information revealed by the court but on the knowledge of the accused, as shown by the circumstances surrounding the waiver." Id. (Emphasis added.) Although recognizing that "express, on-the-record advice of the dangers and risks of self-representation is ... highly desirable," id. at n. 1, Teske makes it clear that as long as a knowing and intelligent waiver is apparent from the record, it need not emerge from a colloquy in which the defendant is advised by the trial judge of the dangers and disadvantages of self-representation. See also 2 W. LaFave and J. Israel, Criminal Procedure § 11.3(b) at pp. 30-33, § 11.5(c) at pp. 44-47 (1984).

While the trial court in the present case did not advise McLeod of the specific "dangers and risks of self-representation," he did engage in a lengthy discussion with McLeod during which he twice informed McLeod that it would be in his best interests to be represented by counsel. Even in granting McLeod's motion, the trial court stated that self-representation was "generally not a good idea." Moreover, the record reveals that McLeod was represented by counsel prior to trial; that he had previous experience with criminal proceedings, including a prior trial in which he represented himself; 3 that he had some knowledge of basic trial procedure and understood that he would be required to comply with the rules of evidence; that he was aware of available defenses; and that he desired to represent himself in these cases because he did not agree with the manner in which appointed counsel intended to present his case. All of these factors are indicative that McLeod's waiver of counsel was in fact voluntarily and intelligently made. See Fitzpatrick v. Wainwright, 800 F.2d 1057, 1066-67 (11th Cir.1986). We also note that prior to questioning the venire, McLeod introduced himself and stated:

"I'm defending myself in this case because that's what the Constitution of the United States guarantees: a right to represent myself if I choose to. The Court have [sic] offered me a lawyer, but I rejected the lawyer for my own personal reasons. I want y'all to know that that's my right, and I hope that you won't find me guilty because I'm representing myself."

(Emphasis added.)

In view of all the circumstances of this case, including the fact that McLeod had represented himself in a prior trial and suffered a conviction which resulted in a sentence of imprisonment for life as a habitual felony offender, we are of the opinion that McLeod had firsthand knowledge of the dangers and disadvantages of self-representation. We find that the trial court, which was clearly aware of McLeod's prior self-representation, did all that was "necessary relative to the circumstances to determine that [McLeod] made a knowing and intelligent [waiver]" of his right to counsel. People v. Longwith, 125 Cal.App.3d 400, 408, 178 Cal.Rptr. 136, 140 (1981), quoted in Teske, 507 So.2d at 571. See also King v. State, 55 Ala.App. 306, 307-09, 314 So.2d 908, 909-11, cert. denied, 294 Ala. 762, 314 So.2d 912 (1975) (although the record showed no questioning of defendant by trial court on the subject, defendant's waiver of counsel was found to be voluntarily and intelligently made where there were several references in the transcript that indicated that defendant had elected to proceed without counsel, and defendant was "certainly not a newcomer to the judicial processes").

II

McLeod asserts that he was denied due process of law by the trial court's denial of his request for funds to obtain independent testing of the cocaine.

A "Motion for Independent Testing" was filed by defense counsel Motley on March 27,...

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