State v. Barnes, Appellate Case No. 2014–001966.

CourtUnited States State Supreme Court of South Carolina
Writing for the CourtJustice PLEICONES.
Citation413 S.C. 1,774 S.E.2d 454
PartiesThe STATE of South Carolina, Petitioner, v. Steven Louis BARNES, Respondent.
Docket NumberAppellate Case No. 2014–001966.,No. 27538.
Decision Date01 July 2015

413 S.C. 1
774 S.E.2d 454

The STATE of South Carolina, Petitioner
v.
Steven Louis BARNES, Respondent.

Appellate Case No. 2014–001966.
No. 27538.

Supreme Court of South Carolina.

Heard April 8, 2015.
Decided July 1, 2015.

Rehearing Denied Aug. 6, 2015.


774 S.E.2d 455

Attorney General, Alan McCrory Wilson, Chief Deputy Attorney General, John W. McIntosh, Senior Assistant Deputy Attorney General, Donald J. Zelenka and Senior Assistant Attorney General, Melody Jane Brown, all of Columbia; and Solicitor Donald V. Myers, of Lexington, for petitioner.

Jeffrey P. Bloom ; and Chief Attorney, William Sean McGuire and Staff Attorney Emily Therese Kuchar, both of Capital Trial Division of SC Commission on Indigent Defense, all of Columbia, for respondent.

Opinion

Justice PLEICONES.

413 S.C. 2

We granted the State's request for a common law writ of certiorari to review a pretrial circuit court order in this capital retrial proceeding. We affirm the circuit court's order.

Respondent's first capital conviction and sentence were reversed on appeal because he was denied his constitutional right to represent himself at trial. State v. Barnes, 407 S.C. 27, 753 S.E.2d 545 (2014) ; see Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In Barnes, the Court declined to adopt the heightened competency standard for a defendant who seeks to represent himself which is permitted, but not required, by

413 S.C. 3

Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). Since the Edwards standard had been applied by the circuit judge, the Court held it was “constrained to reverse” respondent's conviction and sentence. Id. at 37, 753 S.E.2d at 550.

The State plans to retry respondent, and has indicated it will again seek the death penalty. Respondent sought the appointment of counsel to represent him in these new proceedings. At the appointment hearing, the State argued that in seeking representation for the retrial, respondent essentially conceded that his prior conviction was constitutionally obtained. The State contended that in light of this concession, respondent's original conviction and sentence should be reinstated and this Court should proceed to review the issues raised but not reached in the first appeal.1 The circuit court denied the State's request.

774 S.E.2d 456

ISSUE

Must this Court reconsider its decision in State v. Barnes, 407 S.C. 27, 753 S.E.2d 545 (2014), in light of respondent's request for counsel in his second trial?

ANALYSIS

The State argues that by requesting counsel at a pretrial hearing, respondent has conceded that there was no constitutional infirmity in his first trial. Before addressing the merits

413 S.C. 4

of his claim, we look first at the procedural hurdle which the State must clear.

In order to effect a review of respondent's first appeal, this Court would need to recall the remittitur from the circuit court. “In order to justify this court in exercising the unusual power of recalling the remittitur after it has been sent down, a very strong showing would be required that the remittitur was sent down through some mistake or inadvertence on the part of this court or its officer....” State v. Keels, 39 S.C. 553, 17 S.E. 802 (1893). The State cites no authority, and we are aware of none, that permits the remittitur to be recalled, not because of an error or inadvertence on the part of the Supreme Court, but rather because of post-remittitur conduct by a party. Accordingly, we do not believe that even if we were to find merit to the State's position, that we would be empowered to grant the relief it seeks. See also Earle v. City of Greenville, 84 S.C. 193, 65 S.E. 1050 (1909).2 As explained below, we find no authority supporting the State's position in this matter.3

The State relies upon three decisions to support its contention that respondent's original conviction should be reinstated, and the appellate issues not reached in the appeal be considered now, if he persists in seeking counsel at his second proceeding: United States v. Johnson, 223 F.3d 665 (7th Cir.2000) ;

413 S.C. 5

Edwards v. Commonwealth, 49 Va.App. 727, 644 S.E.2d 396 (2007) ; and People v. Carson, 35 Cal.4th 1, 23 Cal.Rptr.3d 482, 104 P.3d 837 (2005). Read correctly, none of these decisions provide authority for the State's position.

In Johnson, the question on appeal was whether the defendant waived his right to represent himself at trial. The court held the defendant “acquiesced in the denial by judicial inaction of his motion and thereby deliberately relinquished his right of self-representation.” Johnson, 223 F.3d at 669. Despite finding waiver, the opinion goes on in obiter dictum:

We add that as he has made no representation that if we order a new trial he will persist in his desire to represent himself, his claim that his right of self-representation was infringed may be moot, as well as
774 S.E.2d 457
having no merit for the reasons just indicated. For if as we expect he would be represented by lawyers at any new trial, he would not have vindicated the right of self-representation upon which he premises his appeal from the denial of that right. The point is not that at a subsequent trial he would be estopped to invoke his right to counsel, an argument rejected in the only cases to have considered the issue.United States v. McKinley, 58 F.3d 1475, 1483 (10th Cir.1995) ; Johnstone v. Kelly, 812 F.2d 821 (2d Cir.1987) (per curiam). The point is rather that if he wants on remand exactly what he had in his first trial, namely representation by competent lawyers, it is difficult to understand what he lost by the denial of his motion: he had at the first trial what he wants at the second. (emphasis supplied).

Id.

While this dicta merely speculates about the consequences had the court found the defendant was entitled to a new trial, it also recognizes that precedent is squarely against the position now espoused by the State. See United States v. McKinley, supra ; Johnstone v. Kelly, supra ; see also United States v. Kennard, 799 F.2d 556, 557 (9th Cir.1986) (“We reject the government's contention that, once a waiver of counsel has been...

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3 practice notes
  • State v. Samuel, Appellate Case No. 2015-002401
    • United States
    • United States State Supreme Court of South Carolina
    • February 28, 2018
    ...ethical rules governing lawyers. Indeed, this Court has suggested, albeit in dicta , that the opposite may be true. See State v. Barnes , 413 S.C. 1, 3 n.1, 774 S.E.2d 454, 455 n.1 (2015) ("Even if we believe that a criminal defendant's exercise of his constitutional rights stem from impure......
  • State v. Barnes, Appellate Case No. 2017-002140
    • United States
    • Court of Appeals of South Carolina
    • July 22, 2020
    ...the supreme court issued an opinion affirming the denial of the State's motion to reinstate Barnes's convictions. See State v. Barnes , 413 S.C. 1, 774 S.E.2d 454 (2015) (hereinafter Barnes II ). The State filed a petition for rehearing on July 14, 2015, and the supreme court denied the pet......
  • State v. Barnes, Appellate Case No. 2020-001230
    • United States
    • United States State Supreme Court of South Carolina
    • February 2, 2022
    ...State v. Barnes , 407 S.C. 27, 753 S.E.2d 545 (2014). On remand, the State continued to seek the death penalty. See State v. Barnes , 413 S.C. 1, 3, 774 S.E.2d 454, 455 (2015) ( Barnes II ) (considering an interlocutory petition as to Barnes' right to counsel). Eventually, however, the Stat......
3 cases
  • State v. Samuel, Appellate Case No. 2015-002401
    • United States
    • United States State Supreme Court of South Carolina
    • February 28, 2018
    ...ethical rules governing lawyers. Indeed, this Court has suggested, albeit in dicta , that the opposite may be true. See State v. Barnes , 413 S.C. 1, 3 n.1, 774 S.E.2d 454, 455 n.1 (2015) ("Even if we believe that a criminal defendant's exercise of his constitutional rights stem from impure......
  • State v. Barnes, Appellate Case No. 2017-002140
    • United States
    • Court of Appeals of South Carolina
    • July 22, 2020
    ...the supreme court issued an opinion affirming the denial of the State's motion to reinstate Barnes's convictions. See State v. Barnes , 413 S.C. 1, 774 S.E.2d 454 (2015) (hereinafter Barnes II ). The State filed a petition for rehearing on July 14, 2015, and the supreme court denied the pet......
  • State v. Barnes, Appellate Case No. 2020-001230
    • United States
    • United States State Supreme Court of South Carolina
    • February 2, 2022
    ...State v. Barnes , 407 S.C. 27, 753 S.E.2d 545 (2014). On remand, the State continued to seek the death penalty. See State v. Barnes , 413 S.C. 1, 3, 774 S.E.2d 454, 455 (2015) ( Barnes II ) (considering an interlocutory petition as to Barnes' right to counsel). Eventually, however, the Stat......

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