Russell v. State

Decision Date15 December 1978
Docket NumberNo. 1278S291,1278S291
Citation270 Ind. 55,383 N.E.2d 309
PartiesJames Henry RUSSELL, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

Paul T. Cholis, South Bend, for appellant.

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

PIVARNIK, Justice.

Appellant Russell was convicted of second-degree burglary at the conclusion of a jury trial in the St. Joseph Superior Court on December 19, 1975. He was sentenced to an indeterminate term of two to five years imprisonment. On appeal to the Court of Appeals, Third District, appellant Russell's conviction was affirmed per Hoffman, J., with Garrard, J., concurring specially and Staton, J., concurring in part and dissenting in part. Russell v. State (1978), Ind.App., 378 N.E.2d 872. Appellant petitions this court to grant transfer, and asks us to reverse the judgment of the Court of Appeals.

This case presents several related procedural problems concerning the right of self-representation under the case of Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. These questions concern how and when a defendant must assert the right of self-representation, and what the trial court must do when the right is thus asserted. Faretta does not answer these questions; the essence of that case was only the recognition of a Sixth Amendment basis for self-representation, and the holding that the state cannot force a lawyer on the defendant against his considered will. In the present case, appellant Russell claims that he was denied his right of self-representation by the trial court, contrary to the Sixth Amendment as interpreted by Faretta.

The facts necessary to a resolution of the questions presented are as follows. After being arrested for the crime of second-degree burglary, appellant appeared in open court without counsel on August 4, 1975. The court at this time found appellant indigent, appointed Public Defender Paul Cholis to represent him, and continued the case for arraignment. Appellant at the eventual arraignment pleaded not guilty, and was released without bond on his own recognizance. On August 27, 1975, the case was assigned to Judge Kopec, and counsel were ordered to appear on September 26 for the purpose of setting a trial date. On September 26, 1975, the case was set for trial on December 18. Discovery procedures were subsequently completed, and a motion for continuance on unspecified grounds was denied on December 16.

Trial began, as set, on December 18, 1975. The proceedings on that day began as follows, with the following colloquy between the court, appellant, and appellant's trial attorney Mr. Cholis:

THE COURT: This is criminal cause number 18544, the State of Indiana vs. James Harvey Russell. Are you James Harvey Russell?

THE DEFENDANT: Yes, sir.

THE COURT: The defendant appears in person and by his counsel, Paul Cholis, and the State appears by Timothy McLaughlin. What record do you wish made?

MR. CHOLIS: Your Honor, I believe it is an appropriate time right now to inform the Court, as I think it was properly indicated prior to this, that the defendant desires to conduct his defense. He feels that he is a competent attorney in his own behalf. He has had some experience and has done some research on the case and in the case of Faretta v. California, I believe we have a situation here which is not dissimilar and which says, if he makes the request, he does indeed have a right to conduct his trial in his own behalf. Do you have anything to say in addition to that?

THE DEFENDANT: Your Honor, I feel that, under the circumstances of the case, I have more knowledge of the case, that I would be more competent in my behalf to conduct the trial myself.

MR. CHOLIS: If I might add something, the only distinguishing case in the facts here from the Faretta case is that the indication is now given to the Court on the day of trial, or at least a couple of days before trial, of the defendant's wish to conduct his own defense. This is distinguishable from Faretta, the request that I made prior.

THE COURT: The official indication was made to the Court this morning when the jury is called in and the jury is here and the fact is that the defendant has a Public Defender and has made no request to represent himself until the last minute. The Court will deny the request and the trial will proceed. I will say, if there is anything that he feels is not being fully covered, we can have a recess and you can tell me what questions you wish to ask.

THE DEFENDANT: If a person is competent, I believe I am competent to take and defend myself. Me and Mr. Cholis have had very little contact. I think he contacted me one week before the trial and that was through someone else.

THE COURT: Part of the problem has been the inability of him to reach you. Is that not correct, Mr. Cholis?

MR. CHOLIS: Yes, I did attempt to contact him eighteen days prior to the trial.

THE COURT: The Court has ruled. Let's bring in the jury.

Voir dire of the jury was then conducted and concluded. The record does not indicate that any request for pro se representation was made prior to the above day of trial discussion. Appellant's motion to Correct Errors in the trial court, his appellate briefs to the Court of Appeals, and his Petition to Transfer to this court all state and argue that appellant's pro se request was made on the morning of trial.

The Court of Appeals in this case reached a split decision, with three opinions. Appellant's pro se request was held properly denied, but only on the basis of the particular facts of the case. Russell v. State, supra, 378 N.E.2d at 883 (Garrard, J., concurring). At the same time, two judges have agreed to a five-part guideline for the resolution of Faretta procedural questions, which guideline would presumably be used in future cases. Id. at 881-83 (Garrard, J., concurring). Among other things, these guidelines propose procedures for the advisement of the right of self-representation at arraignment, and whenever the defendant either hesitates at accepting counsel before trial or expresses dissatisfaction with counsel during trial. The Court of Appeals has also proposed that the trial court, at the point of any such "complaint," must inquire into it and conduct a factual hearing on it. Because of the importance of these questions raised here, which this court has not yet comprehensively discussed, we grant transfer, vacate the opinions of the Court of Appeals in this case, and affirm the judgment of the trial court for reasons which will now be discussed.

Initially, it must be recognized that there are three overriding interests which must be balanced in the resolution of any procedural question in the self-representation context. First, there is the right to self- representation itself, which the United States Supreme Court has held to be implicit in the language and history of the Sixth Amendment. Faretta, supra, at 422 U.S. 818-32, 95 S.Ct. 2532-39, 45 L.Ed.2d 572-80. Second, there is the defendant's Sixth Amendment right to counsel. Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Finally, there is the state's interest in preserving the orderly processes of criminal justice and courtroom decorum. Illinois v. Allen (1970), 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353; German v. State (1978), Ind., 373 N.E.2d 880. There is no necessary hierarchy among these interests, and they are not necessarily antithetical. However, as a practical matter, a decision to proceed to trial with counsel is necessarily a relinquishment of the pro se right, and vice-versa. Every criminal record before us will thus reflect a course of conduct by which the defendant accepted one form of representation over the other, by his words, affirmative conduct, or passivity. Our procedural rules in this area must not only ensure that the record reflect respect for all of defendant's rights; they must also, to the extent possible, prevent the manipulative defendant from fashioning a record which seems to reflect an unconstitutional denial of the path not chosen. See Stepp v. Estelle (5th Cir. 1975), 524 F.2d 447, 455; United States ex rel. Maldonado v. Denno (2d Cir. 1965), 348 F.2d 12, 16, Cert. denied sub nom. Diblasi v. McMann (1966), 384 U.S. 1007, 86 S.Ct. 1950, 16 L.Ed.2d 1020.

It is clear that the right to counsel can be relinquished only by a knowing, voluntary, and intelligent waiver of this right, under the rule of Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. However, it does not follow that the relinquishment of the right of self-representation can only come about through a process measured by such waiver standard. It is not enough to say that both the right to counsel and the right of self-representation are constitutional rights, and that both arise from the Sixth Amendment. Rather, the standards for establishing the relinquishment of constitutional rights vary with the nature of the right under consideration, and the interests protected by the rights. See, e. g., Schneckloth v. Bustamonte (1973), 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854; Barker v. Wingo (1972), 407 U.S. 514, 93 S.Ct. 2182, 33 L.Ed.2d 101. The right to counsel ensures that all defendants have access to the professional skill and knowledge needed to make the necessary procedural and substantive decisions in their trials; this right is also important to the implementation of the other constitutional rights of the accused, and helps ensure the accuracy of trial outcome in our adversary system. Gideon v. Wainwright, supra, at 372 U.S. 342-45, 83 S.Ct. 795-97, 9 L.Ed.2d 804-6. The right of self-representation, on the other hand, is not recognized because it furthers these types of fair trial interests; it may actually hinder such interests. The sole value furthered by the right of self-representation is that of personal autonomy. See Faretta, supra, at 422 U.S. 815-17, 95 S.Ct....

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