Russell v. State

• Citation: 378 N.E.2d 872,177 Ind.App. 138
• Decision Date: 27 July 1978
• Docket Number: No. 3-676A129,3-676A129
• Parties: James Henry RUSSELL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 872

378 N.E.2d 872

177 Ind.App. 138

James Henry RUSSELL, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-676A129.

Court of Appeals of Indiana, Third District.

July 27, 1978.

Rehearing Denied Sept. 1, 1978.

Concurring Opinion

Paul T. Cholis, South Bend, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Susan J. Davis, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant James Henry Russell appeals from his conviction of second-degree burglary pursuant to IC 1971, 35-13-4-4 (Burns Code Ed.), on grounds that the trial court erred in refusing to grant his request to proceed Pro se and because the evidence was allegedly insufficient as a matter of law to support the verdict of the jury.

The record reveals the following evidence most favorable to the State. On July 31, 1975, the appellant had attempted to find employment at Hoffman's Auto Painting in South Bend, Indiana. After completing his application form he noticed cash being delivered to the establishment. Later that day, Russell disclosed this information to an acquaintance, John La Flora, commenting that he had observed enough money to re-establish a political paper he had worked on.

Then at approximately 10:00 P.M. the same day, Police Officer Medich received a radio dispatch that a burglary was in progress at Hoffman's Auto Painting. Upon his arrival at the scene he observed through a front window someone looking up from behind a desk. Other police officers were simultaneously called to the building. They began a search of an outside back stairwell which led them to a basement boiler room and to the discovery of John La Flora. La Flora was identified as the individual previously observed behind the desk. Another police officer searching the room with the broken window found a pair of gloves on the window sill. This caused him to return to the exterior to search whereupon he saw Russell directly below the broken window behind some bushes lying in the weeds. With the arrival of the proprietor, Russell was identified as having been the one seeking employment earlier in the day. The proprietor accompanied by police then took notice that the desk drawers were open, the cash box removed and damaged and that a crowbar was lying nearby.

On August 4, 1975, after being taken into custody, the appellant made his first appearance without counsel. The trial court found Russell indigent, continued the cause and appointed the public defender to his defense. After several continuances of his arraignment Russell pleaded not guilty. Thereafter appellant was released without bond on his own recognizance. The cause was then assigned a specific judge.

On the morning of trial, December 18, 1975, before any of the veniremen had been impaneled as jurors, appellant made his request to proceed Pro se. Russell stated that he had a good grasp of his case, that he was competent to defend himself and that his attorney had had very little contact with him. However, the trial court denied Russell's request and the proceedings were had with the aid of the originally appointed counsel. ¹

On appeal Russell first asserts that the trial court denied him his Sixth Amendment right to self-representation. Reliance is placed on Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, which is said to be distinguishable from the case at bar only because of Faretta's more timely request to proceed Pro se. In that case the trial court had granted defendant's request to represent himself upon his showing of a knowing and intelligent waiver of court-appointed counsel. Thereafter the trial court changed its ruling and revoked its grant, because of defendant's demonstrated lack of knowledge concerning the intricacies of evidence and procedure which were thought necessary to self-representation. On appeal the United States Supreme Court reversed holding that a State may not force a lawyer upon one who insists on conducting his own defense regardless of his legal inexperience so long as he had demonstrated a knowing waiver or his right to counsel. Faretta v. California, supra.

However, the granting of a request pursuant to a Faretta right is not without complication and therefore merits discussion as to appropriate application in the case at bar.

The Sixth Amendment appears to embody two antithetical rights. ² Wallace v. State (1977), Ind.App., 361 N.E.2d 159 (transfer denied). A criminal defendant has an absolute right to the assistance of competent counsel. Argersinger v. Hamlin (1972), 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Fitzgerald v. State (1970), 254 Ind. 39, 257 N.E.2d 305; State v. Minton (1955), 234 Ind. 578, 130 N.E.2d 226. He also has the independent right to forego the aid of counsel and represent himself. Faretta v. California, supra, n. 15, 422 U.S. at 2533, 95 S.Ct. 2525; Placencia v. State (1971), 256 Ind. 314, 268 N.E.2d 613. Moreover, in most instances in order to assert one of these rights the accused must apparently relinquish the other. Wallace v. State, supra; Cf.: Singer v. United States (1965), 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630.

Drawn into question with this mutual exclusiveness is whether the furtherance of procedural due process engendered in those cases requiring counsel can be reconciled with the "inestimable worth of free choice" heralded by Faretta in a manner resolving the case at bar with a procedure insuring the orderly administration of justice.

It is clear that a defendant has a practical need for a lawyer. This is eloquently expressed in Powell v. State of Alabama (1932), 287 U.S. 45, at 69, 53 S.Ct. 55, 64, 77 L.Ed. 158:

"Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense."

Furthermore, a potential exists that without representation a defendant left to his own defense may, by his inability, preclude the semblance of fairness expected by society in the adjudication of a criminal case. See: Singer v. United States, supra.

Indiana has long recognized these concerns and has studiously preserved defendant's right to counsel if he desires one as a prerequisite to a fair trial. Placencia v. State, supra, 256 Ind. 314, 268 N.E.2d 613; Fitzgerald v. State, supra; State v. Minton, supra.

Yet it has also been recognized in this State that an accused cannot be compelled to accept the appointment of counsel against his will. Placencia v. State, supra; Gates v. State (1962), 243 Ind. 325, 183 N.E.2d 601; Page v. State (1956), 235 Ind. 628, 137 N.E.2d 405. Similarly, in Adams v. United States ex rel. McCann (1942), 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268, Justice Frankfurter acknowledges this correlative right, stating:

"But the Constitution does not force a lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open."

(317 U.S. at 279, 63 S.Ct. at 242, 87 L.Ed. at 288.)

While the majority opinion in Faretta v. California, supra, uses a Sixth Amendment rationale, its primary concern is with the same correlative considerations announced in Adams and later in Carter v. People of State of Illinois (1946), 329 U.S. 173, 67 S.Ct. 216, 218 L.Ed. 172. Therefore it is implied that a fair trial will not necessarily be achieved when counsel is forced upon a defendant who has "knowingly and intelligently" waived such assistance since appointed counsel may well be unable to perform an adequate job if the defendant is uncooperative and their relationship characterized by distrust. Likewise it is considered unlikely that forcing counsel on an unwilling defendant will make him feel as though he had a fair trial. As stated in United States v. Dougherty (1972), 154 U.S.App.D.C. 76, 91, 473 F.2d 1113, at 1128:

"In guaranteeing counsel for the accused, the Sixth Amendment conferred a right for the benefit of the accused. As implemented by Congress, this right is not an imperative requirement that may be thrust upon him when in his judgment, as a person without impaired mental capacity, it is against his interest. Even if the defendant will likely lose the case anyway, he has the right as he suffers whatever consequences there may be to the knowledge that it was the claim that he put forward that was considered and rejected, and to the knowledge that in our free society, devoted to the ideal of individual worth, he was not deprived of his free will to make his own choice, in his hour of trial, to handle his own case." (Footnote omitted.)

In this context, the Supreme Court when faced with the competing considerations of two apparently antithetical Sixth Amendment rights, acknowledged in Faretta that the right to proceed Pro se is in fact not absolute and is dependent upon certain due process...