State v. Cunningham, 48575
| Decision Date | 11 July 1977 |
| Docket Number | No. 48575,48575 |
| Citation | 222 Kan. 704,567 P.2d 879 |
| Parties | STATE of Kansas, Appellee, v. Jerry E. CUNNINGHAM, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. An accused has an independent constitutional right of self-representation in a criminal trial and may proceed to defend himself when he voluntarily and intelligently elects to do so.
2. Reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument where no objection is lodged.
3. Before an objectionable statement or question made by the prosecutor will entitle the accused to a reversal of his conviction it must first appear that it was injurious to the accused and was likely to affect the jurors to his prejudice.
4. In a prosecution for the offenses of aggravated robbery and aggravated assault the record on appeal is examined and it is held : Reversible error is not shown on any of the grounds advanced.
Hugh R. McCullough, Topeka, argued the cause and was on the brief for appellant.
Albert D. Keil, Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.
Defendant-appellant, Jerry E. Cunningham, appeals from convictions by a jury of aggravated robbery (K.S.A. 21-3427) and aggravated assault (K.S.A. 21- 3410). The charges stemmed from a robbery of a cashier of the Jayhawk Theater in Topeka on April 23, 1975.
The cashier, Mrs. Helen Tucker, testified that sometime around 9 p.m. a person, who was later identified by her as defendant, came to the cashier's window, produced a revolver, pointed it through the window at her and demanded money. Mrs. Tucker gave the defendant $70.00 or $80.00 in bills, after which defendant ran from the theater. Defendant was observed by two other witnesses who were on the sidewalk at the time. One of these witnesses, Roger Pickering, saw defendant enter a pickup truck, leave it quickly and then run to a taxicab which he entered. At this point Mr. Pickering observed the police arrive and remove defendant from the taxicab. Another state's witness, Mr. Epefanio Rocha, testified that he was in his pickup truck waiting for his wife to get off work at about 9:30 p.m., when defendant got into the pickup, pointed a gun at Rocha, and demanded that he drive off. Rocha refused and defendant exited the pickup. Police officers testified that defendant had $105.00 in bills wadded up in his pants pocket and a loaded .38 special caliber revolver. The officers further testified that at the time of his arrest defendant did not appear to be under the influence of either narcotics or alcohol.
The Shawnee County Public Defender's Office was appointed to represent defendant. The public defender appeared for defendant in various preliminary matters until January 1976, when defendant decided to represent himself and requested that the public defender withdraw as counsel.
The record indicates that defendant was interrogated by the trial court at the time of his initial request to have the public defender withdraw. Immediately before trial, the court held a much more extensive hearing in chambers concerning defendant's pro se representation and, after extensive interrogation of defendant and a careful admonition as to his responsibilities in undertaking self-representation, the trial judge granted defendant the right to represent himself. However, the court informed defendant that counsel from the public defender's office would be appointed to sit beside him at trial and would be available for any advice that might be sought by defendant on matters arising at trial.
At this second hearing, the court outlined the order of trial for defendant's benefit and explained each phase of the trial from voir dire examination through the opening statements, presentation of evidence, preparation and giving of instructions, to the closing arguments. The court also informed defendant he could testify in his own behalf or refuse to do so and that he did not have to present evidence because the state always has the burden of proof. The record discloses that at each step in the court's explanation to defendant he was asked by the court if he understood the matters explained and defendant answered in the affirmative in each instance.
Notwithstanding the trial court's careful explanation of procedures, defendant, in his first point on appeal, contends the trial court erred in failing to make a determination of defendant's legal knowledge before allowing him to proceed as his own counsel. Defendant concedes the trial court went to great length to insure fairness, but now argues this inquiry did not go far enough. He asserts that the only means by which a criminal defendant can be made aware of his disabilities in self-representation is through action by the trial court in giving him:
". . . (A)s to the rule of evidence, the rules regarding foundation which must be laid before evidence may be produced, the hearsay rule, some of the more common evidentiary questions which arise in criminal trials, and the proper form for making objections. . . ."
Defendant offers no suggestion as to what course the court should pursue in case an accused should "flunk" this suggested "mini bar examination."
Section 10 of the Bill of Rights of the Constitution of the State of Kansas specifically provides:
"In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; . . ."
This constitutional right of self-representation was recognized in the recent case of State v. Ames, 222 Kan. 88, 563 P.2d 1034, wherein we held the right to self-representation to be absolute. We qualified our holding, however, by pointing out that in relinquishing his right to counsel an accused must knowingly and intelligently forego the relinquished benefits associated with the right to counsel. Our holding in Ames fully accords with the recent decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. In Faretta it was held that an accused had an absolute constitutional right to defend himself, but that his decision in this regard...
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State v. McDaniel
...Rueckert, 221 Kan. 727, 732-33, 561 P.2d 850 (1977); See State v. Smith, 225 Kan. 796, 799, 594 P.2d 218 (1979); State v. Cunningham, 222 Kan. 704, 707, 567 P.2d 879 (1977); State v. Farris, 218 Kan. 136, 542 P.2d 725 (1975). McDaniel was convicted as a principal for the crime of aggravated......
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State v. Armstrong
...that the record will establish that he understands what he is doing and has made his choice with his eyes open." State v. Cunningham, 222 Kan. 704, 706, 567 P.2d 879 (1977). Under circumstances similar to the instant case, this court has found the defendant voluntarily and intelligently wai......
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State v. Sheppard
...and knowingly made. Faretta v. California, supra; People v. Freeman, 76 Cal.App.3d 302, 142 Cal.Rptr. 806 (1977); State v. Cunningham, 222 Kan. 704, 567 P.2d 879 (1977); State v. Fritz, In sum, then, a defendant in a criminal proceeding who is mentally competent and sui juris, has a constit......
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State v. Cromwell, 67881
...Powell v. Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932) (effective assistance); State v. Cunningham, 222 Kan. 704, 706, 567 P.2d 879 (1977) (self-representation). An indigent criminal defendant is not entitled to counsel of his or her own choice. State v. Banks, 216 Kan. 39......