State v. Buckland
| Decision Date | 14 July 1989 |
| Docket Number | No. 60549,60549 |
| Citation | 245 Kan. 132,777 P.2d 745 |
| Parties | STATE of Kansas, Appellee, v. Stephen L. BUCKLAND, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Waiver of the right to counsel must be knowingly and intelligently made and the determination of such a waiver depends on the particular facts and circumstances of each case. The trial judge must make a thorough inquiry and take all steps necessary to ensure that the right to counsel is protected.
2. A trial court should follow the guidelines set forth in State v. Daniels, 2 Kan.App.2d 603, 586 P.2d 50 (1978), in determining if the right to counsel is knowingly and intelligently waived.
3. A criminal defendant has no constitutional right to be represented by a non-attorney. The appointment of standby counsel is within the sound discretion of the trial court.
4. When a person knowingly associates with an unlawful venture and participates in a way which indicates that he or she willfully is furthering the success of the venture, such evidence is sufficient to go to the jury.
5. Where defendant claims insufficiency of the evidence in a criminal case, an appellate court is required to review all the evidence in the light most favorable to the prosecution in determining whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
6. Remarks made by the prosecutor in closing argument are harmless error if the court finds that the error had little likelihood of changing the result of the trial.
7. Even where the defendant appears pro se, reversible error cannot be predicated on a complaint of prosecutorial misconduct in closing argument where no objection was lodged.
8. When a hearing is held on a motion to modify and the State is represented, the defendant should also be represented; consequently, a pro se defendant should be permitted to appear at the hearing.
Karen E. Mayberry, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, former Chief Appellate Defender, and Jessica R. Kunen, Chief Appellate Defender, were with her on the briefs, for appellant.
Edwin A. Van Petten, Deputy Atty. Gen., argued the cause, and Robert T. Stephan, Atty. Gen., was with him on the briefs, for appellee.
This case is before us on a petition for review of the decision of the Court of Appeal. 766 P.2d 1298. It focuses on a defendant's waiver of the right to counsel and the right of a pro se defendant to be represented at a sentence modification hearing when the State appears in opposition to the motion.
Stephen L. Buckland, the defendant who represented himself at trial, was convicted of one count of selling cocaine.
Buckland raised four issues before the Court of Appeals: (1) Did the trial court adequately determine that Buckland knowingly and intelligently waived his Sixth Amendment right to counsel? (2) Was there sufficient evidence to find Buckland guilty of willfully furthering the success of the drug venture? (3) Did the prosecutor's remarks during closing argument constitute reversible error? (4) Did the trial court commit reversible error when it denied Buckland's request to appear in person at the hearing on his motion to modify sentence?
The Court of Appeals, in an unpublished decision filed December 29, 1988, reversed Buckland's conviction on the basis that the trial court did not adequately determine that Buckland knowingly and intelligently waived his right to counsel. Because of its right to counsel holding, the Court of Appeals did not address the remaining issues.
Special Agent Steve Elsen of the Kansas Bureau of Investigation met Stephen Buckland through Buckland's brother, Anthony (Tony) Buckland. Elsen and Tony discussed arrangements for Elsen to purchase a large quantity of cocaine from Tony.
The purchase was to take place within the next week. Stephen Buckland suggested the location for the transaction. Stephen also asked if Elsen wanted to purchase all of the cocaine that "we [indicating he and Tony] have on hand" and told Elsen that he did not like to make too many plans in advance as they had a way of falling through. Elsen testified that, based on this conversation, he felt that Tony and Stephen had an equal say in the business transaction. Elsen also testified that Tony had mentioned his brother, Stephen, several times during the course of their previous dealings and had told him that Stephen also "dealt."
On October 29, 1985, Elsen and another KBI agent met Tony and Stephen at a service station on Interstate 470 in Topeka. Tony told Elsen that they were going for a ride and that Stephen would follow them. Tony entered Elsen's vehicle with the two agents. Elsen testified that while they were driving, Tony removed a plastic Ziploc bag containing a white powder from a cigarette carton. Elsen said that Tony pointed out the "rocks" in the powder and commented on the quality of this particular cocaine.
Upon arriving at the first rest area west of Topeka on Interstate 70, Tony instructed Elsen to park near the far end. Stephen parked his vehicle directly behind Elsen's vehicle. Shortly afterward, another Buckland brother, Jeffrey, pulled into the rest area behind Stephen. Elsen performed a "field test" to determine the quality of the cocaine. He then counted out $23,400 for three-quarters of a pound of cocaine. As Stephen and Tony attempted to leave the rest area, they were arrested by other law enforcement agents.
Stephen Buckland was charged with sale of cocaine, a class C felony, pursuant to K.S.A.1988 Supp. 65-4127a. He was initially represented by attorney Michael Harris. At a pretrial hearing on June 13, 1986, Harris told the court that he and Buckland had some serious differences over how the case should be defended and that he felt he could no longer effectively represent Buckland. Buckland told the court that he intended to retain other counsel, but that he would need some time to locate another attorney. At this time, Judge Klinginsmith made the following comments to Buckland:
The court told Buckland that he had until July 1, 1986, to retain counsel and to have counsel enter an appearance. The court advised Buckland, "If you do not have counsel by that time I'm going to assume one of two things: You're either going to represent yourself, which I advise you not to do; or you are going to be filing an affidavit and requesting the Court to appoint counsel for you."
The court further said,
On July 9, pursuant to the date set by the trial court, both Tony and Stephen Buckland appeared on the issue of counsel (Tony's attorney of record had also withdrawn). When questioned about counsel, Stephen stated that he was not prepared to address this issue as he thought it was set for July 15. Buckland states in his supplemental brief:
Apparently, both brothers wished to have a person who was not a licensed attorney represent them. The following discussion occurred between the Bucklands and the court on July 9:
[As we have noted, the trial court on June 13, 1986, set the appearance date for July 9, 1986.]
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