State v. Bolden
| Decision Date | 06 December 2016 |
| Docket Number | ED 102965 |
| Citation | 558 S.W.3d 513 |
| Parties | STATE of Missouri, Respondent, v. Darrell I. BOLDEN, Appellant. |
| Court | Missouri Court of Appeals |
Introduction
This case presents the issue of whether a trial court may constitutionally allow an unrepresented defendant to waive his right to counsel when the trial court at the same time has reason to doubt the defendant's competency to stand trial and has not yet resolved that issue. We conclude a trial court cannot.
Darrell I. Bolden (Defendant) appeals the judgment entered upon his conviction of two counts of first-degree robbery and two counts of armed criminal action. His primary argument concerns the trial court's decision to allow him to proceed pro se in this case. We note at the outset the irony here: during the pendency of the present case, Defendant was convicted of multiple counts of first-degree robbery and armed criminal action in St. Louis County, after a trial at which he was represented by counsel because the trial court denied his request to proceed pro se .1 Defendant appealed his St. Louis County convictions to this Court, arguing that the trial court erred in denying his request to proceed pro se , and this Court affirmed. Now we address the opposite claim by Defendant: that the trial court here erred in granting his request to proceed pro se. We consider the limited question of whether Defendant should have been permitted to waive counsel while unrepresented during the pendency of his competency determination, prior to trial.
Due to the overriding importance of the right to counsel generally, and specifically as it relates to the determination of a defendant's competency, not only in this case but in every case, we cannot overlook the violation of Defendant's right to counsel during his competency determination, regardless of the fact that it was Defendant's desire to remain unrepresented and that the ultimate result of the competency determination confirmed his desire that he could proceed pro se. However, we do not find that a new trial is necessary at this point, given that Defendant did undergo a competency examination at the time of the determination of whether he could proceed pro se. We remand to the trial court to conduct an evidentiary hearing on the sufficiency of the competency report, with Defendant represented by counsel, and to make a new finding as to whether Defendant was competent to proceed pro se at the time of his trial in this matter.
The State charged Defendant with two counts of first-degree robbery and two counts of armed criminal action based on an incident that took place on May 5, 2012. Viewed in the light most favorable to the verdict,2 the evidence showed that Defendant entered a Check n' Go store in St. Peters holding a gun and wearing a heavy coat and a ski mask. There were two women inside, one was an employee and one was a customer. The customer had placed $400 in cash on the counter to pay for a wire transfer transaction.
Defendant ordered the women to get behind the counter and forced them to kneel. He took the $400 on the counter and removed an additional $1500 in cash from the cash drawer. He demanded that the employee open the safe. She entered the code for the safe and informed Defendant that the safe had a delay and would not open for five minutes. Defendant left the store, and the employee pressed the panic button to summon the police.
Police were not initially able to determine Defendant's identity, but approximately four months after the robbery occurred, they received information implicating Defendant. At that time, Defendant was detained in the St. Louis County Jail on other charges.3 After waiving his Miranda rights, Defendant admitted to the robbery, gave a written statement, and made notations on still photographs from the store's surveillance video indicating that he was the man who committed the robbery.
While awaiting trial, it appears Defendant was not represented by an attorney, and nothing in the trial court's docket sheet indicated whether Defendant had appointed counsel during the several months before the trial court considered his request to waive counsel. The reason for this is unclear from the record, but Defendant filed several motions and letters with the court pro se over an approximately nine-month period between his indictment and a pretrial hearing on May 5, 2014. At that May 5, 2014 hearing, the trial court took up Defendant's request to waive counsel and represent himself. After informing Defendant of the ranges of punishment he faced for each offense if convicted, and after ensuring Defendant understood that he was entitled to appointment of a public defender as well as what the assistance of an attorney might provide to his defense, the trial court stated the following:
The Court finds the Defendant has made a knowing and intelligent waiver of his right to assistance of an attorney. The Court permits the Defendant to waive the right to representation and the Court considers whether to—whether or not to permit the [D]efendant to try without legal counsel depending on the current motion4 the State has filed. ... [T]he State has filed an order for psychiatric examination of [Defendant].
The trial court heard argument from both the State and Defendant on the State's motion, and proceeded to grant the State's motion, giving the following rationale;
[T]his isn't to be demeaning to you[, b]ut because ... there[ are] four life terms hanging over your head, I don't find your behavior at this point to be particularly rational in denying the help that an attorney could give you. So I'm going to order a psychiatric examination, and the Department of Mental Health will prepare that and then report back to me the detailed findings as to whether or not you have a mental disease or defect and whether or not... you have or lack the capacity to understand the proceedings to assist in your defense. And a recommendation to me as to whether you have mental fitness to proceed.
After receiving the report from this examination, the trial court followed the report's recommendation and found Defendant competent. The trial court allowed Defendant to proceed to trial without an attorney. The jury found Defendant guilty of all charges, and the trial court sentenced him as a prior and persistent offender to consecutive terms of life in prison for each count of first-degree robbery, and 25 years for each count of armed criminal action. This appeal follows.
Defendant raises two points on appeal. First, Defendant argues that the trial court erred in allowing him to proceed pro se before determining he was mentally competent to stand trial. In Point II, Defendant argues that the trial court erred in failing to dismiss the charges against him due to excessive delay by the State in bringing him to trial, thus violating federal and Missouri constitutional protections, as well as Missouri statute, Section 545.780, RSMo. (2000). We discuss each in turn.
Defendant argues that the trial court violated his right to counsel under the Sixth Amendment to the United States Constitution and Article I, section 18(a) of the Missouri Constitution, by determining he had knowingly and intelligently waived his right to counsel before ordering an examination under Section 552.020, RSMo. (Supp. 2011), to determine Defendant's mental fitness to proceed, which left him deprived of his right to counsel during his competency determination. On this point, we must remand.
As an initial matter, Defendant requests that we review his claim for plain error under Rule 30.205 because his error is unpreserved. "A constitutional claim must be made at the first opportunity to be preserved for review." State v. Murray, 469 S.W.3d 921, 925 (Mo. App. E.D. 2015) (citing State v. Fassero, 256 S.W.3d 109, 117 (Mo. banc 2008) ). This Court has held that we cannot expect a defendant to object to his own motion to represent himself. Murray, 469 S.W.3d at 925. In Murray, however, the defendant had standby counsel, who included the claim that the trial court erred in allowing the defendant to represent himself in the motion for new trial; thus, this Court concluded the issue was raised at the first opportunity. Id. at 925–26. Here, the trial court eventually appointed standby counsel for Defendant's trial, but this issue was not included in his motion for new trial. Thus, we find it was not preserved in this instance.
Generally, our review of unpreserved error under Rule 30.20 is a two-step process. State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009). First, we determine "whether the claim of error facially establishes substantial grounds for believing that manifest injustice or miscarriage of justice has resulted." Id. (quoting State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995) ) (internal quotation omitted). "[P]lain errors are those which are evident, obvious, and clear." Baumruk, 280 S.W.3d at 607 (quoting State v. Scurlock, 998 S.W.2d 578, 586 (Mo. App. W.D. 1999)). If we find plain error, then we "proceed to the second step and determine whether the claimed error resulted in manifest injustice or a miscarriage of justice." Baumruk, 280 S.W.3d at 607–08. In the case of a Sixth Amendment violation, courts have found this to be a structural error that is presumptively prejudicial and not subject to harmless error analysis.
State v. Kunonga, 490 S.W.3d 746, 766–67 (Mo. App. W.D. 2016) (). Drawing from this authority, where such a violation constitutes a plain error, we presume manifest injustice or a miscarriage of justice occurred.
Here, we find the trial court committed an evident, obvious, and clear error...
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