State v. Carlin, 52950

• Decision Date: 28 January 1982
• Docket Number: No. 52950,52950
• Parties: STATE of Kansas, Appellee, v. Bill CARLIN, Appellant.
• Court: Kansas Court of Appeals

Page 324

640 P.2d 324

7 Kan.App.2d 219

STATE of Kansas, Appellee, v. Bill CARLIN, Appellant.

No. 52950.

Court of Appeals of Kansas.

Jan. 28, 1982.

Syllabus by the Court

1. In order for an accused to represent himself, he must knowingly and intelligently forego the benefits of counsel. In order to assure that there is a knowing and intelligent waiver, the accused should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.

2. A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

3. The attorney-client privilege does not prevent an attorney, as an officer of the court, from turning over physical evidence of crime which comes into his possession as a result of a confidential communication. The attorney should not be a depository for criminal evidence. Such evidence could clearly be withheld for a reasonable period of time. It follows that the attorney, after a reasonable period, should, as an officer of the court, on his own motion turn the same over to the prosecution.

4. No distinction should be drawn in the privilege context between physical evidence obtained by a criminal defense attorney which is mere evidence of a client's crime and that which may be said to be either a fruit or an instrumentality of the crime.

5. Communications between attorney and client are privileged when made in the course of that relationship and in professional confidence. Communications not made in such confidence are not privileged. Where the client chooses to make or receive communications from his attorney in the presence and hearing of third persons, they cease to be confidential and are not entitled to the protection afforded by the privilege.

6. It is held: (1) There was no error in appointing counsel over appellant's objection in view of evidence that appellant was not competent to knowingly and intelligently waive his right to counsel; and (2) there was no error in requiring an attorney to turn over evidence of a crime to the prosecutor.

Larry McClain, Asst. Dist. Atty., Dennis W. Moore, Dist. Atty., and Robert T. Stephan, Atty. Gen., for appellee.

Andrew R. Heyl, Overland Park, for appellant.

Before FOTH, C. J., and SPENCER and MEYER, JJ.

MEYER, Judge:

This is an appeal from a conviction of making a terroristic threat, K.S.A. 21-3419.

On January 4, 1980, Bill Carlin (appellant) called Michael VanLandingham, director of the Social and Rehabilitation Services (SRS) in Johnson County, Kansas, and expressed dissatisfaction with the way his application for benefits was being processed. During the course of the conversation, appellant made several threats which are the basis for the charges.

Through the course of several appearances and preliminary hearings, the trial court informed appellant of his right to counsel. Appellant stated he would rather act as his own attorney. The court inquired as to appellant's education and ruled that an attorney would be appointed to sit with the appellant and assist him in any legal matters he might encounter in the case. Appellant was unable to meet $1,500 bond and was incarcerated.

On February 1, 1980, the case again came on for preliminary hearing. The State requested that a competency determination be made upon appellant's competency to stand trial. Appellant stated he was competent and objected to the procedure. The court granted the motion to determine competency. On April 29, 1980, the court found appellant to be competent to stand trial.

On September 17, 1980, the court extensively questioned appellant about his knowledge of the law and explained the procedural matters in which an attorney would be needed to adequately present appellant's case. Appellant continued to state that he wanted to represent himself. The court ordered that the court-appointed attorney continue to represent him.

At the same hearing, the court ordered that tapes recovered by the attorney for appellant be turned over to the district attorney's office. Appellant's attorney objected to the tapes being turned over on the grounds that they were work product and gained through the attorney-client privilege. Appellant himself wanted the tape recordings to be turned over to the State. The full text of the telephone conversation between appellant and Mr. VanLandingham is contained in one of the tapes.

The case was tried to a jury and appellant was convicted by a jury of the charge of terroristic threat in violation of K.S.A. 21-3419.

Appellant was given credit for the year he spent in jail pending trial and the balance of the sentence was suspended. Appellant was ordered released from custody.

Appellant first contends that the court erred in denying him the right to represent himself.

The United States Supreme Court case establishing a right of self-representation was Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

In order for an accused to represent himself, he must " 'knowingly and intelligently' " forego the benefits of counsel. In order to assure that there is a knowing and intelligent waiver, the accused "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " 422 U.S. at 835, 95 S.Ct. at 2541. In Faretta, the record clearly showed that the accused was "literate, competent, and understanding, and that he was voluntarily exercising his informed free will." 422 U.S. at 835, 95 S.Ct. at 2541. It was also noted that "technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself." 422 U.S. at 836, 95 S.Ct. at 2541.

The court held that in forcing the accused to accept a state-appointed public defender against his will, the California courts deprived him of his constitutional right to conduct his own defense and the judgment was vacated and remanded.

Faretta recognized that a state may-even over objection by the accused-appoint a "standby counsel" to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of his self-representation is necessary. 422 U.S. at 834-5, n. 46, 95 S.Ct. at 2541, n. 46.

In the instant case, the trial judge made the accused aware of the dangers and disadvantages of self-representation. The trial judge spent considerable time advising appellant of the problems with procedure with which he would be faced and the need for an attorney. The accused continually requested that counsel not be appointed in spite of such warnings. The only distinguishing factor of this case is that appellant had some emotional disturbances which were evident from a reading of the transcripts of the various preliminary hearings. He spoke of things such as the "Klong" and "ream power" and other flights of fancy which indicated he was not entirely in touch with reality. Also, at one time, he had been institutionalized for mental problems. We conclude there was sufficient evidence before the trial court from which it could conclude that appellant was not competent to knowingly and intelligently waive his rights to counsel.

"A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

In Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957), it was indicated in dicta that evidence of emotional disturbance may be a factor in determining whether there was an intelligent waiver of the right to counsel.

Furthermore, courts indulge "every reasonable...