Sherwood v. State

• Decision Date: 01 October 1999
• Docket Number: No. 55S00-9708-CR-441.,55S00-9708-CR-441.
• Parties: Stephen K. SHERWOOD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

717 N.E.2d 131

Stephen K. SHERWOOD, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 55S00-9708-CR-441.

Supreme Court of Indiana.

October 1, 1999.

Eric K. Koselke, Special Assistant to the State Public Defender, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

SHEPARD, Chief Justice.

Appellant Stephen K. Sherwood made multiple timely requests to proceed pro se. Though Sherwood was mentally competent and duly advised about the perils of self-representation, the trial court ordered hybrid representation. This violated the Sixth Amendment.

Facts and Procedural History

In October 1995, 4-year-old Hope James and her mother Alice Barrett were living in a motel room with Sherwood, who was Barrett's boyfriend. On October 21, 1995, Barrett left for work at approximately 6-6:30 p.m., leaving Hope in Sherwood's care. Barrett spoke with Sherwood by telephone at approximately 7-7:30 p.m., when he called the restaurant where she was working to report that Hope was ill. Barrett told Sherwood to check Hope's temperature and call again if Hope's condition worsened. About half an hour later, Sherwood called again and reported that Hope was playing and seemed all right. Barrett called Sherwood at approximately 8:30-9 p.m., and Sherwood said that Hope was sleeping. Barrett told Sherwood to let Hope sleep on the bed with him rather than on Hope's pallet on the floor, so that Sherwood could watch her. When Barrett returned to the room after work at 1:45-2 a.m., she found Hope lying on the bed, entirely covered by a blanket with just one foot showing. Barrett pulled off the blanket to move Hope to her mat on the floor, and saw that Hope was blue. Barrett called 911. Her screams awoke the sleeping Sherwood, who insisted that Hope's heart was still beating. Emergency medical personnel were unable to revive Hope. An autopsy showed that Hope had died of brain damage resulting from blunt force injuries sustained at or shortly before the time of her death.

On October 22, 1995, Sherwood admitted to police investigators that, a month prior to the child's death, he had struck Hope hard enough to cause bruising as punishment for misbehavior. Hope's mother stated that she had noticed other bruises on Hope's body after that incident, at times when Hope had been in Sherwood's care. Sherwood told investigators that Hope had been thrown against the dashboard of his truck and hit by a falling toolbox several days before her death, when he stopped suddenly to avoid a deer. He also said that he had accidentally struck Hope when he opened a bathroom door, unaware that the child was standing behind it. He acknowledged that he had been alone with Hope during the entire time Barrett was at work the night Hope died, but denied having struck or otherwise injuring Hope that evening.

The prosecutor charged Sherwood with Hope's murder. The State sought the death penalty, whereupon Sherwood's retained counsel withdrew. Pursuant to Indiana Rule of Criminal Procedure 24, the court appointed qualified lead counsel and co-counsel to defend Sherwood. During the months preceding trial, Sherwood expressed his dissatisfaction with his appointed counsel, and his objections to being represented by them. (R. at 4578, 4772, 4812-14, 4838-39.) The court denied Sherwood's request for substitute appointed counsel. Thereafter, Sherwood repeatedly requested permission to proceed pro se, asserting that his waiver was knowing, voluntary and intelligent. (R. at 4814, 4897, 5415, 5438-39.)

Defense counsel filed a motion styled as a "Suggestion of Incompetency," and the court appointed two psychiatrists (one of whom was also an attorney) to evaluate Sherwood. Both psychiatrists concluded that Sherwood was competent to stand trial, i.e., that he was able to understand the proceedings and to assist, if he chose to do so, in his own defense. (R. at 5219, 5223.) Appointed counsel questioned Sherwood in detail regarding whether he understood that he would be responsible for every stage of his defense if he elected self-representation, and Sherwood affirmed his understanding. (R. at 5340-42.) The trial judge alerted Sherwood to the specific perils of proceeding pro se and advised him against doing so. (R. at 5364-68, 5394-96.)

At the close of the hearing, the trial judge ruled that the trial would proceed with hybrid representation, with Sherwood appearing "pro se and by appointed counsel." (R. at 5907, 6052.) Sherwood and appointed counsel both objected to this resolution, with appointed counsel pointing out that the defense theories were "inherently different" and "totally non-reconcilable and totally inconsistent." (R. at 5792, 5795.) Sherwood renewed his request to proceed pro se with standby counsel.

At trial, Sherwood and his appointed counsel did not coordinate strategy and in fact presented conflicting theories of defense. Counsel conceded that Sherwood had inflicted the fatal blows. (R. at 9117, 9123, 9132, 11644, 11676.) In so doing, defense counsel also conceded that Sherwood's story was untruthful. (R. at 9116.) Counsel asserted, however, that the action had been reckless rather than knowing or intentional. (R. at 9128-29.) Therefore, defense counsel's theory was that, although Sherwood had committed a lesser offense, such as voluntary manslaughter or reckless homicide, he lacked the requisite culpability for murder. (R. at 9128, 11672.) For his own part, Sherwood asserted his factual innocence. (R. at 9172, 11686-89.)

The jury found Sherwood guilty of murder, and the court entered a sentence of life imprisonment without parole.

Imposition of Hybrid Representation

The basis of a criminal defendant's right to self-representation under the Sixth Amendment of the United States Constitution was articulated in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Supreme Court held that a State may not "constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense." Id. at 807, 95 S.Ct. 2525. The Court went on to say that "[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense." Id. at 819, 95 S.Ct. 2525. "Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense." Id. at 821, 95 S.Ct. 2525.

In Faretta, the Court recognized that a pro se defendant would lose the advantage of an attorney's training and experience. Nevertheless, it held that respect for the individual, which is the "lifeblood of the law," requires that the accused's choice be honored "although he may conduct his own defense ultimately to his own detriment." Id. at 834, 95 S.Ct. 2525.

The Court did, however, recognize certain limitations on the right of self-representation:

[I]n order to represent himself, the accused must "knowingly and intelligently" forego those relinquished benefits [traditionally associated with the right to counsel]. Although a defendant may not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open."

Id. at 835, 95 S.Ct. 2525 (citations omitted) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)). A defendant need not possess technical legal knowledge to knowingly exercise his right of self-representation. Id. at 836, 95 S.Ct. 2525. Defendant Faretta was "literate, competent and understanding" and was voluntarily exercising his own free will. Id. at 835, 95 S.Ct. 2525. In addition, the trial court judge had explicitly warned Faretta that he would be held to the same rules of trial procedure as if he were represented by counsel, and had advised him that he was making a mistake in proceeding pro se. Id. at 835-36, 95 S.Ct. 2525. Under these circumstances, the Court held that denial of the right to proceed pro se violated the Sixth Amendment. Id. at 836, 95 S.Ct. 2525.

The Supreme Court shed additional light on the right of self-representation and its limits in McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). In McKaskle, a defendant was allowed to proceed pro se at trial, but the court appointed standby counsel to provide assistance. Id. at 170, 104 S.Ct. 944. The defendant appealed on the basis that standby counsel had unfairly interfered with his presentation of his defense. Id. at 173, 104 S.Ct. 944. The Court found that there is no absolute constitutional bar to the participation of standby counsel.¹Id. at 176, 104 S.Ct. 944. The primary focus in determining whether a defendant's Faretta rights have been violated is on "whether the defendant had a fair chance to present his case in his own way." Id. at 177, 104 S.Ct. 944. Further, "the right to speak for oneself entails more than the opportunity to add one's voice to a cacophony of others." Id. The core of the Faretta right is the defendant's entitlement to preserve actual control over the case he chooses to present to the jury. Id. at 178, 104 S.Ct. 944.

In McKaskle, the Court recognized that the defendant had in effect been allowed hybrid representation, since he ultimately represented himself on some matters and elected to have counsel represent him on others. Id. at 183, 104 S.Ct. 944. The Sixth Amendment does not require a trial judge to permit hybrid representation, see id. at 183, 104 S.Ct. 944, but it does allow the trial judge to appoint standby counsel even over the...