State v. Burkhart

• Decision Date: 28 June 1976
• Citation: 541 S.W.2d 365
• Parties: STATE of Tennessee, Petitioner, v. William Lee BURKHART, Respondent. 541 S.W.2d 365
• Court: Tennessee Supreme Court

Page 365

541 S.W.2d 365

STATE of Tennessee, Petitioner, v. William Lee BURKHART, Respondent.

541 S.W.2d 365

Supreme Court of Tennessee.

June 28, 1976.

R. A. Ashley, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Nashville, Ronald Webster, Dist. Atty. Gen., Ralph E. Harwell, Herbert S. Moncier, Asst. Attys. Gen., Knoxville, for petitioner.

Wade M. Boswell, Knoxville, Philip L. Whitson, Strawberry Plains, for respondent.

OPINION

HENRY, Justice.

We granted certiorari in this criminal action in order to examine the constitutional right of a criminal defendant, who is represented by counsel, to cross-examine witnesses and to argue his own case. ¹

The Court of Criminal Appeals reversed defendant's conviction for first degree burglary, and awarded a new trial, upon the authority of Wilson v. State, 50 Tenn. 232 (1871) and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

I.

A proper construction of the Federal and State constitutional provisions is dependent upon an understanding of the historical background of the rules relating to the testimony of a criminal defendant and his right to counsel. We summarize the historical data contained in Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961).

For centuries, parties to civil and criminal actions were disqualified as witnesses. In sixteenth century England, a criminal defendant could not testify, nor call witnesses in his own behalf nor be represented by counsel. Quoting from 1 Stephen, History of the Criminal Law of England, p. 326, the Court, in Ferguson, noted that the criminal trial of that period has been described as:

(A) long argument between the prisoner and the counsel for the Crown, in which they questioned each other and grappled with each other's arguments with the utmost eagerness and closeness of reasoning. 365 U.S. at 574, 81 S.Ct. at 759.

By the seventeenth century he was allowed to call witnesses, but still could not testify in his own behalf.

Disqualification for interest was in vogue when this nation was formed. Neither in England nor in this country could criminal defendants testify in their own behalf. With the advent of the nineteenth century this disqualification came under attack. This was long after the adoption of the Constitution of the United States in 1788 and of Tennessee in 1796.

In 1859 Maine became the first state to permit criminal defendants to testify--and this only on a limited basis. In 1864 Maine adopted a general competency statute for criminal defendants, 'the first such statute in the English-speaking world.' 365 U.S. at p. 577, 81 S.Ct. at p. 760. By the end of the nineteenth century every state of the American Union had adopted such a statute except Georgia, and this was corrected by the decision in Ferguson, supra.

By Chapter 79 of the Public Acts of 1887 the Tennessee General Assembly declared:

In the trial of all indictments, presentments, and other criminal proceedings, the party defendant thereto may, at his own request, but not otherwise, be a competent witness to testify therein. (Sec. 40--2402, T.C.A.).

Prior thereto, in order to achieve a measure of justice by appeasing the rigor of this common law rule, there came into being the practice of permitting the use of unsworn statements. As a part of the common law, or by statutory sanction in some states, this practice was followed; however, it was generally recognized to be 'simply a stopgap solution for the serious difficulties for the accused created by the incompetency rule.' 365 U.S. at 585--86, 81 S.Ct. at 765.

In Ferguson, supra, the Court commented on this rule as follows:

'The custom grew up in England out of a spirit of fairness to give an accused, who was otherwise disqualified, an opportunity to tell his story in exculpation.' State v. Louviere, 169 La. 109, 119, 124 So. 188, 192. The abolition of the incompetency rule was therefore held in many jurisdictions also to abolish the unsworn-statement practice. 'In such cases the unsworn statement of an accused becomes secondary to his right of testifying under oath and cannot be received.' State v. Louviere, supra, 196 La., at 119, 124 So., at 192. 'The privilege was granted to prisoners because they were debarred from giving evidence on oath, and for that reason alone. When the law was changed and the right accorded to them to tell their story on oath as any other witness the reason for making an unsworn statement was removed.' Rex v. Krafchenko, (1914) 17 D.L.R. 244, 250 (Man.K.B.). 365 U.S. at 586, 81 S.Ct. at 765.

Along with the competency statutes and the unsworn statement practice, there must be considered briefly the evolution of the right-to-counsel requirement. For the history of this phase of the historical background we turn to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

This right has existed throughout our existence as a nation, but it represents a deviation from the early common law. As observed by the Court in Faretta, '(a)t one time, every litigant was required to 'appear before the court in his own person and conduct his own cause in his own words." 422 U.S. at 823, 95 S.Ct. at 2535, 45 L.Ed.2d at 575, quoting from 1 Pollock & Maitland, History of English Law (1909) n. 16, at 211.

In civil and misdemeanor cases there was a right to counsel but accused felons and traitors were 'on their own.' Due process rights were unknown. Gradually, and by 1836, in England the ban on counsel in felony cases had been lifted. But, at no point during this evolution was counsel ever forced upon the defendant against his will. It is interesting to note that, according to Faretta, the only tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant was the Court of the Star Chamber, in the late sixteenth and early seventeenth centuries.

It is a fact of history that in Colonial America lawyers were somewhat less than popular. Lawyers were not banned from appearing in behalf of clients, but in several colonies, Massachusetts, Virginia, Connecticut and the Carolinas, they were prevented from charging for their services.

The basic right of self-representation was thus thrust upon early colonials and it is a part of our heritage.

The right of self-representation was guaranteed in many colonial charters and declarations of rights. These early documents establish that the 'right to counsel' meant to the colonists a right to choose between pleading through a lawyer and representing oneself. After the Declaration of Independence, the right of self-representation, along with other rights basic to the making of a defense, entered the new state constitutions in wholesale fashion. The right to counsel was clearly thought to supplement the primary right of the accused to defend himself, utilizing his personal rights to notice, confrontation and compulsory process. And when the Colonies or newly independent States provided by statute rather than by constitution for court appointment of counsel in criminal cases, they also meticulously preserved the right of the accused to defend himself personally. 422 U.S. at 828, 95 S.Ct. at 2537, 45 L.Ed. at 578--79.

All of this is the background against which the Sixth Amendment right to counsel, the provisions of Tennessee's Constitution, and state and federal cases must be considered.

II.

We now focus upon the requirements of the Federal Constitution as interpreted by the Supreme Court of the United States.

The Sixth Amendment to the Constitution of the United States enumerates the essential rights of an accused in criminal prosecutions. Among other things, it guarantees that every criminal defendant 'have the Assistance of Counsel for his defense.' This basic right is a part of the 'due process of law' that is guaranteed by the Fourteenth Amendment.

The Sixth Amendment guaranty of the effective assistance of counsel has been recognized and amplified by the courts of Tennessee. See McKeldin v. State, 516 S.W.2d 82, 86 (Tenn.1974), wherein we recognized that the Constitution mandates effective assistance and 'requires the guiding hand of counsel at every step in the proceedings'. See also Baxter v. Rose, 523 S.W.2d 930 (Tenn.1975), wherein we strengthened standards of competence of counsel.

Both state and federal decisional law are crystal clear on the constitutional mandate for the effective assistance of counsel. However, neither the Supreme Court of the United States nor this Court has resolved the issue presented in this controversy, viz., the right of a criminal defendant to be represented by counsel And simultaneously, and in the same trial, to cross-examine witnesses, make an unsworn statement or present argument in his own behalf, or otherwise participate along with his counsel.

The United States Court of Appeals for the Sixth Circuit, in United States v. Conder, 423 F.2d 904 (1970), has spoken to the matter with great clarity:

While not as often the subject of litigation, the right of a defendant in a criminal case to defend Pro se is as clearly established as a criminal defendant's right to counsel. (citing cases) The right to defend Pro se and the right to counsel have been aptly described as 'two faces of the same coin,' United States v. Plattner, 330 F.2d 271, 276 (2d Cir. 1964), in that the waiver of one right constitutes a correlative assertion of the other. While it may be within the discretion of a District Court to permit both a criminal defendant and his attorney to conduct different phases of the defense in a criminal trial, see United States v. Burkeen, supra (355 F.2d 241, 245 (6 Cir. 1966)) for purposes of determining whether there has been a deprivation of constitutional rights a criminal defendant cannot logically waive or assert both rights. The defendant must make a choice, and he should not be permitted to manipulate his choice so that he can claim reversible error on appeal no matter which alternative he apparently chose in the...