Metcalf v. State, 90-KA-1227

• Decision Date: 09 December 1993
• Docket Number: No. 90-KA-1227,90-KA-1227
• Citation: 629 So. 2d 558
• Parties: James C. METCALF v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 558

629 So.2d 558

James C. METCALF v.STATE of Mississippi.

No. 90-KA-1227.

Supreme Court of Mississippi.

Dec. 9, 1993.

Wallie S. Stuckey, Jr., Greenwood, for appellant.

Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

McRAE, Justice, for the Court:

James C. Metcalf was convicted in the Circuit Court of Humphreys County of uttering forgery and was sentenced to a term of fifteen (15) years in custody of the Mississippi Department of Corrections.From this conviction and sentence he appeals, alleging ineffective assistance of counsel and lack of an intelligent and knowing waiver of the right to counsel.Finding that the trial court correctly balanced the defendant's right to represent himself with the right to counsel, thereby establishing a hybrid representation, and finding no other error, we affirm.

FACTS

On August 5, 1989, Metcalf forged three checks stolen from a veterinary clinic in Belzoni where he was employed as a janitor.As Metcalf presented a $700.00 check to a liquor store, the store clerk told Metcalf that he did not have enough money to cash the check, and Metcalf left.Through the store clerk's own investigation, he became aware that the check was unauthorized and notified the police.Metcalf later returned to the store and attempted to cash the check again.When the clerk informed him that he knew the check was forged, Metcalf fled the store.Later that day, Metcalf was successful in cashing a $400.00 check at a grocery store and a third check at a department store.Following his check-cashing spree, Metcalf escaped to Tennessee but was later apprehended, arrested and brought back to Mississippi by Belzoni Police officials for trial.

The court appointed Attorney, W.C. Trotter, III, served as counsel for Metcalf.Metcalf is no stranger to the legal system; the record indicates that since 1956, he has been in court on at least a dozen occasions charged with forgery, burglary and larceny.At the arraignment, on February 15, 1990, Metcalf appeared before the judge with counsel.Trotter indicated that Metcalf had previously told him that he was attempting to locate private counsel and if he could not, he might wish to represent himself.At that time, Metcalf also informed the court that he was under psychiatric care and medication and requested an examination by Region VI Mental Health Center to determine his competency to stand trial.The judge did not relieve Trotter from representation at that time.

Four days later, the defendant, acting as his own counsel, filed an oral motion for previous psychiatric records to be subpoenaed.The court noted that Metcalf was representing himself with the assistance of Attorney Trotter in its February 19, 1990 order.The court's order directed that a mental examination be conducted by Region VI Mental Health in Greenwood, Mississippi to determine if Metcalf could continue to represent himself and also whether he was mentally competent to stand trial.The judge informed Metcalf that Trotter would continue to be available to advise him on any matter.The judge further admonished Metcalf that the witnesses would be subpoenaed if he would give the names and addresses to Trotter.The records reveals:

BY THE COURT: Well now you had indicated last week you wished to get another lawyer to represent you.Have you done that?

BY MR. METCALF: I still ... I made ... I sent a notice to that lawyer today, today by one of the deputy's secretary.She said that she would give it to her.She supposed to be back today so I don't know, I'm still trying to make contact with her.

BY THE COURT: All right.If you don't, the Court has appointed Mr. Trotter here to represent you, and ...

BY MR. METCALF: All right.Now we're working together now?

BY MR. TROTTER: I'll be available to advise ...

BY THE COURT: Yes, sir.

BY MR. TROTTER: Mr. Metcalf on anything ...

BY THE COURT: Yes, sir....

Subsequently, on March 26, 1990, the trial court entered an order for a psychiatric examination at the Mississippi State Hospital at Whitfield to determine if Metcalf was able to represent himself as well as if he was mentally competent to stand trial.This order was filed after the court was notified that, pending the Region VI Mental Health examination ordered on February 19, 1990, Metcalf attempted to file commitment papers on himself in the Chancery Court of Humphreys County, Mississippi and attempted to set fire to his jail cell.In a letter dated June 29, 1990, Dr. Maggie Lancaster, Director of Forensic Service at the Mississippi State Hospital at Whitfield, advised the trial court of her findings after a psychiatric examination of Metcalf.Dr. Lancaster concluded that Metcalf was competent to stand trial, knew the difference between right and wrong in relation to his actions at the time of the crime charged, and was capable of conferring with an attorney.The case proceeded to trial on July 27, 1990.When Metcalf learned that the witnesses he had planned to call would not be testifying because they had not been subpoenaed, the following colloquy took place:

BY THE COURT: Well, you see, Mr. Metcalf, that's the need--reason you needed some expert advice.You needed some advice from an attorney to handle that for you and you refuse.

BY MR. METCALF: No, he[Trotter] was working along with me.

BY THE COURT: No.He--you refused that before me very emphatically on two or three occasions, and the Court suggested that to you that you needed it and that I was going to have him available at any time you wanted to call him.And I've got him coming over here today and I'll have him sitting there with you.But now you have come up here the morning of trial--he's been--he has not done any preparation.He hasn't interviewed any witnesses.You haven't told him of the witnesses you wanted.

BY MR. METCALF: Yes, I have.

BY THE COURT: When?Yesterday?

BY MR. METCALF: No, he just came yesterday.I've seen him several times and told him I wanted these witnesses, but he just came yesterday and made out the subpoena.

* * * * * *

BY THE COURT: Well, this whole mess is your fault.It's not mine.It's not Mr. Trotter's, because he was available to you and would have prepared himself and prepared you for this trial if you had just indicated that you wanted him, and you told me you didn't want him and wasn't going to consult with him and all of that, and I suggested to you on I know two occasions that this was not wise.

* * * * * * BY THE COURT: But you remember me cautioning you and telling you that you needed a lawyer.

BY MR. METCALF: No, I remember you asking me--Attorney Trotter say did I have a desire to represent myself--to hire an attorney.I said I had tried to get an attorney.

BY THE COURT: And you told me you didn't want Mr. Trotter.

BY MR. METCALF: Well, I said that if necessary I would represent myself.Those are my words.

BY THE COURT: All right.All right.Anyway--

BY MR. METCALF: But I never have refused his assistance, and I've always asked him to help me to prepare for the trial, and he can tell you the same thing.

At that point, the Sheriff advised the trial court that Trotter had visited Metcalf "a week or so ago" and that "[t]hey went into a back room and talked."Thereafter, this discussion took place:

BY MR. METCALF: He[Trotter] came and asked me, said, "The judge wanted me to tell you that you could represent yourself," and he said, "But I'll be there with you," and he said that, "State's attorney wanted to know what kind of plea you wanted," that's the only thing he talked about.I been telling him--I been persistent in trying to get my witnesses in time for trial.He just came over yesterday and said--he said that the State's attorney sent him over to see about what witnesses to call.I didn't understand that.

BY THE COURT: Well, no she did that at my request to save me a telephone call when I was in Greenwood.

BY MR. METCALF: I been trying to get these witnesses ever since this thing started.

BY MS. BRIDGES: Judge, I do know that Mr. Metcalf has had ample communication through the sheriff's department, and any time he wanted witnesses, all he had to do was send a list of them.

BY THE COURT: That's all.And your refusing to accept any legal advice has got you in the predicament you're in this morning, and I'm going to put you to trial.

Metcalf's motion for a continuance was denied and he was then called upon to represent himself.At trial, Dr. Helen Robertson, a clinical psychologist at the Mississippi State Hospital, testified that she had obtained medical records from other doctors whom Metcalf claimed to have seen, believing they would give her substantial insight into his condition.She stated, however, that some of the institutions where Metcalf claimed to have been treated had never heard of him and had no record whatsoever of his treatment.Ultimately, Metcalf was diagnosed as "malingering" and as having an "anti-social personality disorder."Dr. Robertson explained that he was diagnosed as "malingering" because several of the experts who had evaluated Metcalf believed he was feigning symptoms of mental illness.She further explained that persons diagnosed as having an "anti-social personality disorder" are those who "know what the rules are; they just don't care."

The jury returned a verdict of guilty, and on July 27, 1990, the trial court sentenced Metcalf to a term of 15 years.The trial court appointed W.S. Stuckey to represent him on his motion for a new trial and appeal.His motion was denied.For the first time on appeal, Metcalf raises the issues of ineffective assistance of counsel and lack of a knowing and intelligent waiver of counsel.

DISCUSSION OF THE LAW

I.

There is no record that any of the issues Metcalf presents on appeal were raised before the trial court.His motion for a new trial set forth only two grounds: (1) the verdict was against the overwhelming weight of the evidence, and (2) any other...