Parker v. State

• Decision Date: 22 November 1976
• Docket Number: Nos. F--76--453,F--76--454,s. F--76--453
• Citation: 1976 OK CR 293,556 P.2d 1298
• Parties: Danny PARKER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1298

556 P.2d 1298

Danny PARKER, Appellant, v. The STATE of Oklahoma, Appellee.

Nos. F--76--453, F--76--454.

Court of Criminal Appeals of Oklahoma.

Nov. 22, 1976.

An appeal from the District Court, Oklahoma County; James B. Martin, judge.

Danny Parker, appellant, was convicted of two charges of Kidnapping, After Former Conviction of a Felony; was sentenced to twenty-five (25) years' imprisonment and ninety-nine (99) years' imprisonment, and appeals. Judgments and sentences AFFIRMED.

Charles D. Neal, Jr., Steidley & Neal, McAlester, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Toby Mash, Legal Intern, for appellee.

OPINION

BLISS, Judge.

Appellant, Danny Parker, hereinafter referred to as defendant, and his co-defendant Lonnie C. Johnson, were charged, tried and convicted in the District Court, Pittsburg County, Cases Nos. F--75--176 and F--75--178, for the offenses of Kidnapping, After Former Conviction of a Felony, in violation of 21 O.S.1971, § 741. In Case No. F--75--176, the kidnapping of Kim Thomas, the jury returned a verdict fixing the defendant's punishment at twenty-five (25) years' imprisonment. In Case No. F--75--178, the kidnapping of Paula Workman, the jury returned a verdict fixing the defendant's punishment at ninety-nine (99) years' imprisonment. Both sentences were in accordance with the verdicts of the juries. From each of these judgments and sentences the defendant has filed an appeal with this Court. Since the assignments of error raised in these appeals overlap, we have consolidated them for consideration.

The testimony presented at trial in connection with the two cases is summarized in the decision handed down today in the appeals of co-defendant Johnson, Johnson v. State, Okl.Cr., 556 P.2d 1285 (F--76--449 and F--76--450, 1976).

The first assignment of error is that the trial court erred in determining that the defendant voluntarily, knowingly and intelligently waived his right to counsel when he had the court release his court appointed attorney. The defendant, it is argued, repeatedly and plainly stated he did not want to represent himself but only to get a new court appointed attorney. Since some of the issues raised by the defendant in this appeal are more complicated than those raised by co-defendant Johnson, we take this opportunity to elaborate upon our holdings in Johnson v. State, supra.

In United States v. Stephens, 315 F.Supp. 1008 (W.D.Okl.1970), the defendants sent the trial judge a letter rquesting dismissal of their court appointed counsel, alleging he was not 'interested' in their case or 'prosecuting (sic) their defense with due diligence.' In refusing to dismiss counsel, the federal court found that the defendants had failed to show 'good cause' in their letter and that there was 'nothing in the files and records of the case' to show that counsel was ineffective. The reasoning and procedure in the Stephens case seem sound in this Court. We would apply them completely in this case, except that Stephens is contrary to the subsequent landmark decision of the United States Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Faretta established that a defendant has an independent fundamental right guaranteed by the Sixth Amendment to the United States Constitution, applicable to the States through the Fourteenth Amendment, to represent himself at all stages of criminal proceedings if he elects to do so. ¹ A trial court Cannot force a defendant to accept counsel or refuse to dismiss a court appointed counsel if the defendant elects to represent himself.

Prior to Faretta, this Court held that an accused May waive the right to counsel and defend himself, but this was a discretionary matter for the trial court to decide. Davis v. State, Okl.Cr., 368 P.2d 519 (1962). Accord, Ex parte Barnett, 67 Okl.Cr. 300, 94 P.2d 18 (1939); Howington v. State, 30 Okl.Cr. 243, 235 P. 931 (1925); Polk v. State, 26 Okl.Cr. 283, 224 P. 194 (1924). The defendant had no Right to represent himself, but merely the Opportunity if the trial court found it feasible and the defendant made a knowing, voluntary and intelligent waiver of his right to counsel. This Court indulged every reasonable presumption against a waiver of the fundamental constitutionally guaranteed right to counsel. See, e.g., Davis v. State, supra, at 520. The only fundamental rights the defendant had were to be represented by counsel and to have an appointed counsel if he were indigent. See, e.g., Stewart v. State, Okl.Cr., 495 P.2d 834 (1972). These rights applied to misdemeanors as well as to felonies. See, e.g., Mure v. State, Okl.Cr., 478 P.2d 926 (1970). Since Faretta establishes that a defendant has an independent fundamental right to forego these two fundamental rights and elect to represent himself, this Court will no longer indulge a presumption against the State so long as the record clearly establishes that the defendant's election was intelligent and voluntary. The defendant is no longer waiving fundamental rights when he represents himself but is merely electing between mutually exclusive fundamental rights. Where the defendant is competent, we interpret Faretta as negating a waiver of counsel requirement before a defendant can represent himself. Since there is no waiver, this Court cannot presume against the defendant's electing to represent himself. All previous holdings to the contrary by this Court are specifically overruled.

In determining which fundamental right the defendant has chosen to exercise--either the right to retained or appointed counsel, or the right to represent himself--the facts must be reviewed on a case-by-case basis to insure that the election was made in a knowing, intelligent and voluntary manner. Two federal cases arising in Oklahoma, although dealing with waiver of counsel, are applicable.

In Miles v. United States, 385 F.2d 541 (10th Cir. 1967), the defendant argued that his plea of guilty could not have been made knowingly, voluntarily and intelligently--required because a guilty plea waives certain fundamental rights--because his previous waiver of counsel was not knowingly, voluntarily and intelligently made. In upholding the waiver of counsel, the appeals court found the defendant 'was carefully informed of his right to counsel, understood that right, and affirmatively declined to avail himself of it.' Miles v. United States, supra, at 543.

In Snell v. United States, 174 F.2d 580 (10th Cir. 1949), the appeals court gave the trial judge the 'responsibility of determining whether there is an intelligent and competent waiver (of the right to counsel). To discharge that duty, the (trial) court must investigate as long and as thoroughly as the circumstances of the case Reasonably demand.' Snell v. United States, supra, at 582. (Emphasis added)

In applying the above standards to the case at bar, we find that the trial court did not abuse its discretion in finding that the defendant elected to exercise his fundamental right to represent himself. Here, some months before trial, the trial court had appointed counsel for the defendant. The defendant, less than a week before trial was due to begin, sought to replace the court appointed attorney. ² The trial court explained to the defendant that he had a personal right to court appointed counsel, but no right to a counsel of his choosing. The defendant persisted in his demand that the counsel be replaced and was given the alternative of going to trial with the court appointed counsel or releasing the appointed counsel and representing himself. ³ After the defendant elected to represent himself at trial, he refused an offer by the trial court to appoint the released attorney as standby counsel to sit at the defendant's table during trial to offer the defendant advice if he asked for it. ⁴ From the record it is clear that the defendant was aware of his rights and elected to proceed Pro se in a knowing, voluntary and intelligent manner. As this Court stated in Johnson v. State, supra, at 1285, that the defendant subsequently renewed his demand for another court appointed counsel and refused to participate at trial in Case No. F--75--176 does not vitiate his election.

In Case No. F--75--178, the defendant raises as an assignment of error that the trial court, based upon the defendant's failure to put on a defense in Case No. F--75--176, should have appointed standby counsel. In Stiner v. State, Okl.Cr., 539 P.2d 750 (1975), this Court first dealt with the Faretta decision. It was recognized there that the right to self-representation could be terminated by the trial court. Stiner v. State, supra, at 753. '(T)he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.' Faretta v. California, supra, n. 46, 422 U.S. 806, 95 S.Ct. at 2541, 45 L.Ed.2d at 581. This Court urged the trial courts of Oklahoma to pay particular attention to another section of footnote 46, incorrectly cited as footnote 45 in Stiner, which recognizes that a trial court May, even over the objection of a defendant, appoint a standby counsel. Stiner v. State, supra, at 753. But it was not held in that decision, or in Johnson v. State, supra, that a court Must appoint a standby counsel. Even though this Court Strongly encourages the appointment of standby counsel, Johnson v. State, supra, at 1285, it remains a discretionary matter for the trial court to decide. This Court will not disturb a trial court's action unless there has been a clear abuse of that discretion which has prejudiced the defendant. In the case at bar, this Court fails to see how the appointment of a standby counsel in Case No. F--75--178 was mandated by the defendant's failure to make a defense in Case No. F--75-- 176. The defendant's action at the first trial showed he had no need for a standby counsel to advise him on the law. At the first...