People v. Mogul, 88CA1573

• Decision Date: 28 March 1991
• Docket Number: No. 88CA1573,88CA1573
• Citation: 812 P.2d 705
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald E. MOGUL, Defendant-Appellant. . C
• Court: Colorado Court of Appeals

Page 705

812 P.2d 705

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Donald E. MOGUL, Defendant-Appellant.

No. 88CA1573.

Colorado Court of Appeals,

Div. C.

March 28, 1991.

Rehearing Denied May 16, 1991.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Wendy J. Ritz, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Donald E. Mogul, pro se.

Opinion by Judge KELLY ^*

The defendant, Donald E. Mogul, appeals the judgment conviction of first degree sexual assault and crime of violence. Among other allegations of error, he contends that the trial court improperly denied him his Sixth Amendment right to self-representation at trial. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); People v. Romero, 694 P.2d 1256 (Colo.1985). We agree, and reverse and remand for new trial.

I.

On the morning trial was to begin, defense counsel requested a continuance to conduct further investigation into facts which had only recently been brought to his attention. This motion was denied by the trial court. Immediately thereafter, and before selection of the jury, the defendant addressed the court requesting that his appointed counsel be removed from the case and that the defendant be allowed to proceed pro se. He expressly requested that there be no continuance and that the trial proceed forthwith.

The defendant made several representations in support of his motion to represent himself. First, he explained the tardiness of the request by stating that he had instructed his attorney not to investigate the case or prepare for trial because there existed an agreement with agents of the United States government to obtain dismissal of these pending charges. We note that there was pending before the trial court a motion to dismiss based on these grounds, although it was not heard and ruled upon until midway in the trial. However, the defendant said that, only the previous week, the federal agents had "effectively reneged." Accordingly, it was defendant's position that defense counsel was inadequately prepared and could not possibly know what he needed to know and what the defendant knew about the bases for a successful defense.

Further, the defendant represented that he had an extensive legal background, having "worked with the ACLU Mountain States League, American Justice League, Nonprofit League." He asserted that he had "authored a number of decisions including a landmark decision in this district in front of Judge Matsch." Although he conceded his unfamiliarity with Colorado procedure, he claimed to understand "basic courtroom decorum," and assured the court that he believed he could represent himself and would not "offend the dignity of this court." Finally, he stated his confidence that he could win his case if allowed to do so, and invited the court to inquire of him concerning his ability to represent himself.

The following ruling and colloquy resulted:

"THE COURT: All right. Well, you certainly do have the right under the Constitution of the United States to represent yourself. However, like other rights, they can be waived. It's my ruling that you have waived your right to represent yourself by waiting until the day of trial.

"THE DEFENDANT: Your Honor, there was--

"THE COURT: Don't interrupt me. See, that's one thing you don't know about the practice of law, apparently.

"Obviously, if I allow you to represent yourself, I would have to grant you a continuance. You report to me that you're unfamiliar with the procedures here. I believe that. Undoubtedly, we would probably have to appoint you an advisory counsel. That would entail a continuance of the case. So it's my ruling that you have waived your constitutional right to represent yourself by waiting till the day of trial to bring it up. We're going to go ahead.

"Go ahead, you have some more you want to say?

"THE DEFENDANT: Your Honor, may I state for the record that I object, that I believe you are taking away the only defense I have. [Appointed counsel] cannot conceivably have the knowledge that I have on this case. And further, you leave me no option but I refuse to cooperate in my own defense. I have no other option."

A person accused of a crime enjoys the constitutional right to self-representation. Colo. Const. Art. II, § 16; Faretta v. California, supra; People v. Romero, supra. The right is personal to the defendant and may not be abridged by requiring a defendant to accept a lawyer when he desires to proceed pro se. Romero, supra.

The right, however, is not unqualified; it may not be used to impede the efficient administration of justice. People v. Barnes, 636 P.2d 1323 (Colo.App.1981). While the authorities agree that the right must be unequivocally and timely asserted, there is disagreement about what constitutes timeliness and about the consequences of an untimely request.

Some federal courts, for example, hold that assertion of the right to self-representation even as late as the morning of trial, if it precedes selection of the jury, is timely as a matter of law, and is addressed to the sound discretion of the trial court. See United States v. Smith, 780 F.2d 810 (9th Cir.1986); Chapman v. United States, 553 F.2d 886 (5th Cir.1977); Fritz v. Spalding, 682 F.2d 782 (9th Cir.1982). See also State v. Herron, 736 S.W.2d 447 (Mo.App.1987). Other courts hold, as did the trial court here, that requests made prior to, but on the day of, trial are per se untimely. Smith v. Smith, 474 N.E.2d 973 (Ind.1985); Russell v. State, 270 Ind. 55, 383 N.E.2d 309 (1978).

We reject a categorical rule of either stripe. We decline to hold that a motion to proceed pro se made on the day of trial is timely as a matter of law so long as it precedes the selection of the jury. We also reject the rule that a motion delayed until the day of trial is per se untimely.

There are a variety of reasons which might excuse a late request to proceed to trial pro se, see State v. Fritz, 21 Wash.App. 354, 585 P.2d 173 (1978), and the burden properly rests upon the defendant to show satisfactory cause for the lateness. See People v. Burton, 48 Cal.3d 843, 258 Cal.Rptr. 184, 771 P.2d 1270 (1989); People v. Windham, 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187 (1977).

In exercising its discretion to grant or deny a defendant's request to proceed pro se, a trial court must first determine whether the request is timely. Unless a request is made an ample time before the date set for trial, it is incumbent upon the trial court to determine whether the request is made for purposes of delay or to gain tactical advantage, and whether the lateness of the request may hinder the administration of justice. Chapman v. United States, supra; Hamiel v. State, 92 Wis.2d 656, 285 N.W.2d 639 (1979). Unless it is apparent on the record before the trial court that there is good cause for the late request, it may be necessary to conduct a hearing to elicit testimony on this issue.

It is uniformly agreed that a request for self-representation must be unequivocal. See, e.g., State v. Fritz, supra. A request stated in uncertain terms or in uncertain manner cannot be regarded as a demand for self-representation nor can it be considered as a waiver of the Sixth Amendment right to counsel.

The trial court must also determine whether the demand for self-representation constitutes a valid, knowing, and voluntary waiver of the right to counsel. To this end, the trial court must engage the defendant in a dialogue to explain the consequences of proceeding pro se and to make the defendant aware of the dangers and disadvantages of self-representation. Faretta v. California, supra; Chapman v. United States, supra; People v. Romero, supra. Only after such interrogation and advice can the trial court determine that the waiver of the right to counsel is knowing and voluntary and that the request for self-representation is unequivocal.

A defendant's technical legal knowledge is not a factor to be considered by the trial court in deciding whether to grant or deny the motion. People v. Freeman, 76 Cal.App.3d 302, 142 Cal.Rptr. 806 (1977). The right to dispense with the assistance of counsel is guaranteed not because it is essential to a fair trial, but because the defendant has a personal right to make a fool of himself. People v. Salazar, 74 Cal.App.3d 875, 141 Cal.Rptr. 753 (1977). See also Faretta v. California, supra.

A trial court is not obliged, however, to put up with disruption or intemperate conduct during a hearing or trial, nor does the right of self-representation give license to a defendant to ignore procedural or substantive rules of law. See State v. Fritz, supra. Thus, advisory counsel may be appointed by the trial court even over the objection of the defendant in order to assure the orderly progress of the case and to provide whatever assistance during the trial the pro se defendant may require. Faretta v. California, supra; State v. Fritz, supra.

Here, the trial court's ruling that the defendant had waived his constitutional right to self-representation by the untimeliness of his request rested almost entirely on two factors: The defendant's unfamiliarity with Colorado courtroom procedures and the presumed need to appoint advisory counsel and consequent need for a continuance. On the record in this case, these were not sufficient grounds to deny the defendant his constitutional right to proceed without counsel.

First, the ruling of the trial court did not consider numerous factors bearing on delay. The record shows that not one continuance had been granted in this case. The trial of the case was trailed for two days beyond its original setting, doubtless to accommodate the court's docket. Moreover, the ruling ignores the defendant's explicit request that the case proceed to trial without continuance; he made it plain he felt ready for trial forthwith. Additionally, although there appears in the record no...