Poynter v. State

• Decision Date: 21 June 2001
• Docket Number: No. 57S03-0010-CR-595.,57S03-0010-CR-595.
• Citation: 749 N.E.2d 1122
• Parties: Barry S. POYNTER, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Supreme Court

749 N.E.2d 1122

Barry S. POYNTER, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 57S03-0010-CR-595.

Supreme Court of Indiana.

June 21, 2001.

Susan K. Carpenter, Public Defender of Indiana, Gregory L. Lewis, Deputy Public Defender, Indianapolis, for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Adam M. Dulik, Deputy Attorney General, Indianapolis, for Appellee.

ON PETITION TO TRANSFER

DICKSON, Justice.

Following a bench trial at which the defendant was not represented by counsel, he was convicted of battery on a police officer¹ and resisting arrest.² He appealed his convictions claiming a violation of his right to assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article 1 Section 13 of the Indiana Constitution. The Court of Appeals reversed. Poynter v. State, 733 N.E.2d 500 (Ind.Ct.App.2000). We granted the State's petition for transfer which alleged that this decision is inconsistent with other decisions of this Court and the Court of Appeals.

The defendant claims that when he was tried "without the benefit of counsel, the record must reflect that the right to counsel was knowingly, intelligently, and voluntarily waived and that [he] was fully advised regarding the dangers and disadvantages of self-representation." Br. of Defendant-Appellant at 5. The defendant states that he did not assert his right to self-representation nor does the record reflect that he explicitly waived his constitutional right to be represented by counsel. The defendant maintains that the court had a duty to advise him of the advantages of representation by counsel and the dangers of self-representation. The lack of advisement, the defendant argues, negates any finding of a voluntary, knowing, and intelligent waiver of his right to the assistance of counsel. Because he was tried without counsel and because he did not validly waive his right to counsel, the defendant asks for a new trial.

The State concedes that "[w]hen a criminal defendant waives his right to counsel and proceeds pro se, the record must reflect that the defendant's waiver was knowing, intelligent, and voluntary." Br. of the Appellee at 3. However, the State maintains that the defendant made such a waiver through his conduct of repeatedly telling the court that he would hire an attorney, that he had saved money to hire an attorney, but then appearing on the day of trial without an attorney. The State contends that the trial court had no duty to advise the defendant of the disadvantages of appearing without counsel, because defendants who tell the court they are hiring counsel do not need such warnings. Similarly, the State concludes that on the day of trial, any warning would have been superfluous because at that point it was too late to obtain counsel. Finally, the State asserts that the trial court "admonished the defendant that he would have to be prepared to proceed pro se if not represented by ... his trial date." Br. of the Appellee at 6.

At the defendant's initial hearing on January 5, 1999, the defendant entered a plea of not guilty and his surety bond was posted. He was given and signed a standard advisement of rights form that included the "right to be represented by and to consult with a lawyer" and "the right to have the court appoint an attorney to represent you at no cost if found to be indigent." Record at 19. After informing the defendant of the charges against him and the possible penalties should he be found guilty, the judge asked the defendant if he had read and understood the rights on the form and whether he was going to be hiring an attorney to represent him. The defendant answered "Yes, Sir" to each of these questions. Record at 50. The court scheduled a pretrial conference for February 22, 1999, and advised the defendant "you're required to be back here at that time with your attorney." Record at 50-51. On that date, however, the conference was continued to April 19, 1999, by agreement of the parties "so that defendant can obtain an attorney." Record at 4, 20. At the April pretrial conference, the defendant appeared without an attorney. The hearing consisted of the following colloquy:

The Court: This is in 9901-CM-007 and also 9709-CM-851. State of Indiana versus Barry S. Poynter. Mr. Poynter, what's your address?

Mr. Poynter: I live with friends right now. I really ain't got a place of my own.

The Court: Where's your—Do you have a place where you get mail?

Mr. Poynter: It ah, .... It's apartments.

The Court: In Kendallville or?

Mr. Poynter: In Kendallville, yeah (affirmative).

The Court: Is there an apartment number?

Mr. Poynter: I think it's just ....

The Court: That's where you're also staying with friends right now?

Mr. Poynter: Yes, Sir.

The Court: Are you going to be hiring an attorney to represent you in these cases?

Mr. Poynter: Well I was, but I've been working like seven (7) days a week, last week twelve (12) hours a day, and I've been really tired, and I ain't been getting up on time and walking down there and talk to them. I got some money saved up though for a lawyer, but I ain't got, went down there and talked to one.

The Court: Well, I will set these cases for bench trial and fact-finding hearing on June 21st at 10:45. If you decide that you want to get up to go down and hire an attorney—

Mr. Poynter: I got to sometime.

The Court: (continuing) You can do that. Otherwise you need to be here June 21st at 10:45, prepared for a trial in these cases. And a trial on the probation violation.

Mr. Poynter: Okay.

The Court: So with or without an attorney you need to be prepared for a trial on this date.

Mr. Poynter: I'll be here.

The Court: Okay.

Mr. Poynter: Thank you, Sir, for your time.

The Court: You're welcome.

Record at 52-53.

On the date set for his bench trial, June 21, 1999, the defendant appeared in person, and the trial proceeded on the two class A misdemeanor charges. Neither the trial judge nor the parties commented regarding the absence of an attorney for the defendant. The State waived opening statement and presented the testimony of two Kendallville police officers. The defendant asked only one question of one of the witnesses. The defendant's case consisted of his own seven sentence narrative testimony. He presented no other witnesses. Following the State's closing argument, the defendant responded with the following closing argument: "All I got to say is that what they say is not true. I'm just one person just like the rest of you." Record at 71. The trial court found the defendant guilty and, after a brief sentencing hearing,³ imposed consecutive sentences of 180 days each upon the convictions for battery of a police officer and resisting arrest.

The rights embodied in the Sixth Amendment⁴ protect the fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 691 (1984). "Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have." United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657, 664 (1984). In recognition that the "average defendant does not have the professional legal skills to protect himself" at trial, it is required that a defendant's choice to appear without professional counsel be made intelligently. Johnson v. Zerbst, 304 U.S. 458, 462-64, 58 S.Ct. 1019, 1022-23, 82 L.Ed. 1461, 1465-66 (1938).

When a defendant asserts the right to self-representation, the court should tell the defendant of the "dangers and disadvantages of self-representation." Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562, 581-82 (1975). There are no prescribed "talking points" the court is required to include in its advisement to the defendant; it need only come to a considered determination that the defendant is making a voluntary, knowing, and intelligent waiver. Leonard v. State, 579 N.E.2d 1294, 1296 (Ind.1991). This determination must be made with the awareness that the law indulges every reasonable presumption against a waiver of this fundamental right. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023, 82 L.Ed. at 1466.

Several courts have held, however, that a verbal waiver of the right to counsel may not be necessary "so long as the ... court has given a defendant sufficient opportunity to retain the assistance of ... counsel, defendant's actions which have the effect of depriving himself of ... counsel will establish a knowing and intentional choice." United States v. Hoskins, 243 F.3d 407, 410 (7th Cir.2001)(finding defendant's conduct to be sufficient to imply waiver, and that trial court's inquiry was sufficient and provided explicit warning of consequences of continued conduct); see also United States v. Irorere, 228 F.3d 816, 828 (7th Cir.2000)

(holding that defendant waived right to counsel by his conduct where court appointed four separate lawyers all of whom either requested to withdraw or were fired by the defendant); United States v. Kneeland, 148 F.3d 6, 11 (1st Cir.1998) (finding valid waiver when defendant discharged third appointed counsel after explicit warning that fourth counsel would not be appointed); United States v. Bauer, 956 F.2d 693, 695 (7th Cir.1992)(finding valid waiver when defendant failed to retain counsel after court determined that defendant had financial ability to do so); United States v. Weninger, 624 F.2d 163, 167 (10th Cir.1980) (inferring waiver from defendant's "stubborn refusal" to retain counsel despite repeated urging by judge). In each of these waiver-by-conduct cases, however, the courts recognized that, just like an express verbal waiver, an implied waiver is not valid absent a finding under the totality of the circumstances that the waiver is knowing and intelligent; and this finding invariably included evidence of an...