State v. Black

• Decision Date: 29 May 2007
• Docket Number: No. SC 87785.,SC 87785.
• Citation: 223 S.W.3d 149
• Parties: STATE of Missouri, Respondent, v. Gary W. BLACK, Appellant.
• Court: Missouri Supreme Court

223 S.W.3d 149

STATE of Missouri, Respondent, v. Gary W. BLACK, Appellant.

No. SC 87785.

Supreme Court of Missouri, En Banc.

May 29, 2007.

Rosemary E. Percival, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for Respondent.

WILLIAM RAY PRICE, JR., Judge.

INTRODUCTION

In 1999, Gary W. Black was convicted of first-degree murder and sentenced to death. His conviction and death sentence were affirmed on direct appeal. State v. Black, 50 S.W.3d 778 (Mo. banc 2001). On appeal from the denial of Rule 29.15 postconviction relief, this Court reversed. Black v. State, 151 S.W.3d 49 (Mo. banc 2004). On remand in 2006, Black was again convicted of first-degree murder and sentenced to death. Black appeals his conviction. This Court has exclusive jurisdiction of the appeal. Mo. Const. art. V, sec. 3. The judgment of the trial court is reversed and the case is remanded.

FACTS

On October 2, 1998, Black drove with his girlfriend, Tammy Lawson, to a Snak-Atak convenience store in Joplin, Missouri. Lawson went inside to shop while Black stayed in the car. When Lawson returned from shopping, she told Black that she was upset because she felt that a man in the store, Jason Johnson, had acted inappropriately towards her. Black in turn followed Johnson's vehicle with his own, an altercation ensued, and Johnson was killed. A more detailed account of the facts surrounding Johnson's death may be found in this Court's prior decision. See Black, 151 S.W.3d at 51-54. However, for purposes of this appeal, it is only necessary to recite the following facts:

On January 5, 2005, Black's case was reopened after being remanded by this Court. The first document filed after remand was a handwritten motion by Black that requested that he be allowed to represent himself "pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)." Along with this motion, he filed a pro se motion for discovery. Five days later, he filed a more detailed motion in which he again requested that he be allowed to proceed without counsel. In this motion, he alleged that he "unequivocally, intelligently, and voluntarily desired to represent himself." He further alleged that he understood the case, the consequences of self-representation, and that he would be bound to the same rules as an attorney. He cited Faretta for the proposition that his right to represent himself is fundamental.

On February 16, 2005, these motions were overruled as "moot," to be raised after the appointment of counsel. On February 23, Black wrote a letter to the trial court emphasizing that Black did not request or want counsel appointed to represent him, that he desired to proceed pro se, and that his right to so proceed was fundamental under Faretta.

On March 15, Black filed yet another motion requesting that appointed counsel be dismissed and that Black be allowed to represent himself. In this motion Black asserted that he "does not request, apply for, desire, or even wish to be represented by legal counsel." He alleged that he "fully understands the legal consequences of self-representation." He further alleged that his request was timely and voluntary. He again asserted that his right to represent himself was fundamental, citing Faretta, and that the denial of this right denied him meaningful access to the court, citing Bittick v. State, 105 S.W.3d 498, 503-504 (Mo.App.2003). This motion was overruled the following day without explanation.

Sometime prior to October 15, Black filed a sworn complaint with the Office of Chief Disciplinary Counsel regarding his appointed counsel's handling of his case. Then, on October 15, he filed a motion to dismiss his assigned counsel, alleging that the resulting investigation created a conflict of interest that his counsel failed to report to the court. He requested an evidentiary hearing on the motion. On October 18, the trial court overruled his motion. In doing so, the following colloquy occurred:

COURT: . . . Mr. Black, it appears to me that assigned counsel are working diligently on your behalf. They have the benefit of law degrees and experience in criminal cases. It seems to the Court that you're much better served by having counsel than not having counsel. And so for that reason I'm going to overrule the motion. If you want to retain counsel of your choosing, why the Court would permit you to do that. But in the absence of retained counsel, the Court thinks you're better served by having capable counsel. The Court will make a docket entry simply overruling that motion.

MR. BLACK: In other words, you don't think I'm qualified to represent myself, Your Honor?

COURT: That's true. I think you're less qualified than your attorney. As far as I know you have not been to law school and have not defended criminal cases, you're not licensed to practice law, and so I would assume that assigned counsel is more capable than you of representing you.

On April 18, 2006, during the last pretrial hearing before trial, Black asked to make a record:

BLACK: At this time I'd like to renew my motion for leave to proceed pro se and inform the Court that I'm fully aware that I won't receive no special treatment, that I'm bound to the same rules and policies that would apply to appointed counsel. That by doing so that I waive my right to the appointment of counsel. And in doing so I waive any right I might have to a claim of ineffective assistance of counsel during the course of this trial.

COURT: The record will so note. The Court is of the firm opinion that because you're not a practicing attorney and because you have capable and experienced counsel available at no expense to you that your request will be denied.

On May 1, 2006, Black's trial began. He was convicted of first degree murder under section 565.020.¹

APPELLANT'S POINT ON APPEAL

Black asserts that "[t]he trial court erred in appointing counsel and in summarily overruling Black's repeated, timely, and unequivocal requests to proceed pro se because the rulings deprived Black of his right to self-representation and to present his defense, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution, in that Black made a knowing, voluntary, and intelligent waiver of the right to counsel and should have been allowed to proceed pro se." (emphasis in original).

DISCUSSION

I.

a.

The Sixth Amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defence." U.S. Const. amend. VI. In Faretta v. California, the United States Supreme Court recognized that the federal Sixth Amendment right to counsel "implicitly embodies a correlative right to dispense with a lawyer's help." Faretta v. California, 422 U.S. 806, 814, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). "The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally." Id. at 820, 95 S.Ct. 2525. "To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment." Id. The right of self-representation so implied into the Sixth Amendment is applicable to the states by way of the Due Process Clause of the Fourteenth Amendment, and prevents a state from forcing upon a defendant unwanted counsel. Id. at 836, 95 S.Ct. 2525.²

Denial of a defendant's right to self-representation is considered structural error. See Washington v. Recueno, ___ U.S. ___, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006); Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). "Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to `harmless error' analysis. The right is either respected or denied; its deprivation cannot be harmless." McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). There is no discretion for a trial court to force an attorney upon a competent defendant who makes a timely, unequivocal, voluntary and informed waiver of the right to counsel. State v. Hampton, 959 S.W.2d 444, 447 (Mo. banc 1997).

There are four requirements for a defendant seeking to waive his right to counsel and proceed pro se. A defendant's invocation of the right must be made unequivocally and in a timely manner, and the corresponding waiver of counsel must be knowing and intelligent. Id.

b.

Because a defendant who is allowed to proceed pro se may argue on appeal that his right to counsel was improperly denied, ambiguous requests are not sufficient to assert the right. Hampton, 959 S.W.2d at 447. "The probability that a defendant will appeal either decision of the trial judge underscores the importance of requiring a defendant who wishes to waive his right to counsel to do so explicitly and unequivocally." Id. (quoting Hamilton v. Groose, 28 F.3d 859, 863 (8th Cir.1994)). Similarly, a defendant must assert the right in a timely manner. See United States v. Brown, 744 F.2d 905, 908 (2d Cir.1984), cert. denied, 469 U.S. 1089, 105 S.Ct. 599, 83 L.Ed.2d 708 (1984).

c.

"When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must `knowingly and intelligently' forgo those relinquished benefits." Faretta, 422 U.S. at 835, 95 S.Ct. 2525.³ Whether a defendant's waiver is made knowingly and intelligently depends on the particular facts and circumstances...