Mitchell v. State

• Decision Date: 07 October 2016
• Docket Number: No. F–2015–554,F–2015–554
• Citation: 2016 OK CR 21,387 P.3d 934
• Parties: Emanuel Dewayne Mitchell, Appellant, v. The State of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

387 P.3d 934

2016 OK CR 21

Emanuel Dewayne Mitchell, Appellant,

v.The State of Oklahoma, Appellee.

No. F–2015–554

Court of Criminal Appeals of Oklahoma.

FILED OCTOBER 7, 2016

ATTORNEYS AT TRIAL, EMANUEL DEWAYNE MITCHELL, PRO SE

KENT BRIDGE, P.O. BOX 1171, OKLAHOMA CITY, OK 73201, STANDBY COUNSEL FOR DEFENDANT

DAVID PRATER, DISTRICT ATTORNEY, SUZANNE LAVENUE, ASSISTANT DISTRICT ATTORNEY, 320 ROBERT S. KERR, SUITE 505, OKLAHOMA CITY, OK 73102, COUNSEL FOR THE STATE

ATTORNEYS ON APPEAL, KATRINA CONRAD–LEGLER, HOMICIDE DIRECT APPEALS DIV., OKLA. INDIGENT DEFENSE SYSTEM, P.O. BOX 926, NORMAN, OK 73070, COUNSEL FOR APPELLANT

E. SCOTT PRUITT, ATTORNEY GENERAL OF OKLAHOMA, JENNIFER B. WELCH, ASSISTANT ATTORNEY GENERAL, 313 NE 21ST STREET, OKLAHOMA

CITY, OK 73105, COUNSEL FOR APPELLEE

OPINION

SMITH, PRESIDING JUDGE:

¶ 1 Emanuel Dewayne Mitchell was tried by jury and convicted of Count I, Murder in the First Degree in violation of 21 O.S.Supp.2006, § 701.7(B) ; and Count II, Conspiracy to Commit a Felony (Robbery with a Dangerous Weapon), after former conviction of two or more felonies, in violation of 21 O.S.2001, §§ 421, 801, in the District Court of Oklahoma County, Case No. CF–2009–3297. In a consolidated action, Mitchell was tried by the same jury and convicted of Unauthorized Use of a Motor Vehicle in violation of 47 O.S.2001, § 4–102, in the District Court of Oklahoma County, Case No. CF–2009–3341. In accordance with the jury's recommendation the Honorable Timothy R. Henderson sentenced Mitchell to life imprisonment without the possibility of parole (CF–2009–3297, Count I); twenty-five (25) years imprisonment (CF–2009–3297, Count II); and ten (10) years imprisonment (CF–2009–3341), all to run consecutively to one another. Mitchell appeals from these convictions and sentences and raises ten proposition of error in support of his appeal.

¶ 2 On May 19, 2009, Mitchell and his co-defendant Anthony Morrison recruited teenagers Antwun Parker and Jevontai Ingram to rob the Reliable Pharmacy in Oklahoma City. They gave Ingram a gun, Parker a board to block the door, and both boys clothing to wear. The two boys entered the pharmacy, demanding drugs and money. Ingram had a pistol and Parker blocked the front door. The two female clerks ran into a back room. The pharmacist, Jerome Ersland, fired two shots from a handgun toward the boys. Parker fell unconscious and Ingram ran from the store. Ersland followed Ingram, fired three shots, and returned to the store. Ersland stepped over Parker, got another gun, and shot him five times. These final five shots were fatal. Ingram, still running, got into a stolen car driven by Mitchell. They drove a short distance and saw a police car. Mitchell and Ingram jumped from the car and ran in different directions, leaving Ingram's mask in the car. Mitchell denied any involvement with either the robbery or the stolen car.

¶ 3 Mitchell was originally tried and convicted of these crimes in April 2011. This Court granted his appeal and remanded the case, finding that Mitchell had been denied the right to represent himself at trial. Mitchell v. State , No. F–2011–866, slip op. at 9 (Okl.Cr. June 20, 2013) (not for publication). Mitchell represented himself at his retrial.

¶ 4 In Proposition I Mitchell complains that the trial court erred in allowing him to represent himself. As we explained in Mitchell's first appeal:

A criminal defendant has a constitutional right of self-representation. Mathis v. State , 2012 OK CR 1, ¶ 7, 271 P.3d 67, 71–72 ; Faretta v. California , 422 U.S. 806, 818–21, 95 S.Ct. 2525, 2532–34, 45 L.Ed.2d 562 (1975). As this court has said, "The test whether a defendant has intelligently elected to proceed pro se is not the wisdom of the decision or its effect upon the expeditious administration of justice." Johnson v. State , 1976 OK CR 292, ¶ 34, 556 P.2d 1285, 1294. A defendant must be warned of the dangers and disadvantages of self-representation, based on all the circumstances of the case. Mathis , 2012 OK CR 1, ¶ 15, 271 P.3d at 74 ; Faretta , 422 U.S. at 835, 95 S.Ct. at 2541. Armed with that information, he must then knowingly and intelligently waive the benefits of counsel. Mathis , 2012 OK CR 1, ¶ 7, 271 P.3d at 71–72 ; Faretta , 422 U.S. at 835, 95 S.Ct. at 2541. No particular knowledge of law or courtroom procedure is required. Coleman v. State , 1980 OK CR 75, ¶ 5, 617 P.2d 243, 245 ; Faretta , 422 U.S. at 836, 95 S.Ct. at 2541. "[A] defendant must be competent to make this decision and must be clear and unequivocal in his desire to proceed pro se ." Mathis , 2012 OK CR 1, ¶ 7, 271 P.3d at 72. If these requirements are met, a defendant who understands his right of self-representation and has a clear intent to exercise it must be allowed to proceed. Johnson , 1976 OK CR 292, ¶ 37, 556 P.2d at 1296. The possibility that a defendant may later disrupt a trial is not a reason to deny self- representation before any disruption has occurred. Coleman , 1980 OK CR 75, ¶ 5, 617 P.2d at 245. The Court strongly encourages trial courts to appoint standby counsel for a pro se defendant. Mathis , 2012 OK CR 1, ¶ 17, 271 P.3d at 74–75.

Mitchell , No. F–2011–866, slip op. at 2–3. Mitchell argues that the trial court failed to ensure that his waiver of counsel was voluntary, knowing and intelligent. He argues that, in fact, he wanted to be represented by appointed counsel, but the trial court denied that request.

¶ 5 Mitchell argues that the entire trial record casts into doubt his initial decision to proceed pro se . The record does not support this claim. At a pretrial hearing, the trial court warned Mitchell of the disadvantages of representing himself, ensured he was informed of the charges and ranges of punishment, and asked whether he unequivocally wanted to represent himself. Mitchell said he did. The trial court also appointed attorney Kent Bridge as standby counsel. The trial court explained to Mitchell that he would waive any appellate issue of ineffective assistance of counsel by proceeding pro se . The court also granted Mitchell a continuance of several months to allow him to prepare for trial. He had access at the jail to the entire record of the proceedings, including the previous proceedings, and to free computerized legal research.

¶ 6 A thorough review of the record shows Mitchell chose to represent himself. Shortly after the case was remanded, attorney Trevino was appointed as standby counsel for Mitchell. In a status hearing on October 11, 2013, Mitchell—who had complained several times about what he felt was inadequate access to discovery and research materials—seemed to ask that Trevino be appointed lead counsel on the case, rather than standby counsel, and the trial court agreed. At a hearing on January 17, 2014, the court noted that Trevino had been appointed as standby counsel and Mitchell wanted him to be lead counsel. The trial court granted Trevino's request to be removed from the case. The court appointed Kent Bridge, apparently as lead counsel for Mitchell. However, even after noting that Mitchell was not asking to go pro se , the trial court inquired if Mitchell had the materials he needed. The court indicated that it expected the University of Oklahoma Law School Legal Clinic would assist Mitchell in his investigation and research.¹ This appears inconsistent with the order that Bridge was representing Mitchell. After this hearing, Mitchell continued to file motions pro se ; sometimes he notified Bridge, but sometimes he did not. The State, believing that Bridge represented Mitchell, did not respond to the pro se motions.

¶ 7 At a hearing on July 31, 2014, Bridge asked the trial court to determine his status. Bridge said, although Mitchell had affirmed that he wanted Bridge to represent him, Bridge also had information that Mitchell had changed his mind. The pro se motions included a request to go pro se , a request for new counsel, and a complaint about Bridge's representation, as well as several with no basis in fact or law. Mitchell (who never got Bridge's name right) told the trial court that Bridge wasn't properly representing him, that he did not have the research resources to represent himself, and he wanted new counsel. The court correctly explained that Mitchell was entitled to appointed counsel, but not to counsel of his choice. The court further explained that an attorney must zealously advocate for his client, but was also obligated to follow the law and rules of professional conduct in doing so. Mitchell responded that he would rather represent himself than be represented by Bridge, and stated, "I would like to represent myself because that's a Constitutional right that I have." He then immediately reaffirmed that he wanted to represent himself.

¶ 8 The trial court made a record that Mitchell understood the charges and the ranges of punishment. The court advised Mitchell that, as a nonlawyer, he would be at an extreme disadvantage. Mitchell responded that he would be at more disadvantage if he allowed someone to take control of his life, and again, agreed that he unequivocally wanted to represent himself. Mitchell asked for standby counsel to help him prepare, and to get subpoenas and paperwork. The trial court appointed Bridge as standby counsel to assist him. The trial court informed Mitchell that he would be required to follow court rules and the trial court would not advise him regarding rules, objections or admission of evidence. The court advised Mitchell he was waiving any issue of ineffective assistance of counsel on appeal. Again, the trial court asked Mitchell to choose between representation by Bridge and unequivocally representing himself, and Mitchell replied that he would represent himself. The trial court noted that Mitchell had filed numerous handwritten motions, determined his level of education, and found that he could read and write. The court asked about Mitchell's medications and what effect they had on him, and Mitchell replied t...