State v. Daniels, 49364
| Decision Date | 27 October 1978 |
| Docket Number | No. 49364,49364 |
| Citation | 2 Kan.App.2d 603,586 P.2d 50 |
| Parties | STATE of Kansas, Appellee, v. Richard M. DANIELS, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Absent a knowing and intelligent waiver, no person may be imprisoned for any offense whether classified as a misdemeanor or a felony unless represented by counsel at trial.
2. Waiver of counsel will not be presumed from a silent record.
3. The state has the burden of showing that an accused was advised of his right to counsel, either retained or appointed, and that waiver of counsel was knowingly and intelligently made.
4. Whether an accused knowingly and understandably waived his or her right to counsel after the assistance of counsel was offered would depend upon the particular facts and circumstances of each case.
5. When any person is accused of an offense, whether misdemeanor or felony, for which he or she may be imprisoned (as defined in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)), that person must be informed of the right to retained or appointed counsel before he or she can make a knowing and intelligent waiver of counsel.
6. The trial court must make more than a routine inquiry when defendant attempts to waive his right to counsel, and minimum standards of inquiry are set forth herein.
7. A stenographic or electronic record is to be made of all testimony presented to a judge or jury in a criminal case in the district court unless the defendant knowingly and intelligently waives the record in the case.
8. The failure to make a record in a criminal case is not automatically reversible error.
9. When a defendant submits a statement of facts which is agreed to by the state and approved by the trial judge and does not allege prejudicial error as a result of a record not being made, and no controversy exists between the parties that a record would clarify, the failure to make a record is not reversible error.
Richard A. Euson, of Dresie, Jorgensen, Wood & Euson, P.A., Wichita, for appellant.
Robert J. Sandilos and Stuart W. Gribble, Asst. Dist. Attys., Curt T. Schneider, Atty. Gen., and Vern Miller, Dist. Atty., for appellee.
Before FOTH, C. J., and ABBOTT and REES, JJ.
This is a direct appeal by defendant from a conviction for battery against a law enforcement officer, contrary to K.S.A. 21-3413. Defendant raises three issues on appeal, contending (1) that he did not make a knowing and intelligent waiver of counsel; (2) that he did not sufficiently understand the charges against him to prepare a proper and adequate defense; and (3) that while a Pro se defendant should not be allowed to waive a record, even if it is allowed the defendant here did not knowingly and intelligently do so. The case is before us on an agreed statement, no record of the proceedings having been made.
The defendant was arrested following a disturbance at Lake Afton in Sedgwick County, Kansas, during which defendant was sprayed with Mace and then allegedly struck a park ranger. Defendant was arrested by Darrel Long, Chief of Police of Goddard, Kansas, and David Cisneroz, a Sedgwick County deputy sheriff. Defendant was placed in the rear seat of a law enforcement vehicle. Officer Cisneroz drove and Chief Long rode in the back seat with the defendant. While enroute to the Sedgwick County jail, the defendant kicked Officer Cisneroz on the back of his shoulder.
The record does not indicate whether or not defendant was booked into the Sedgwick County jail, and if he was booked, whether it was for the incident that occurred at the lake or for the incident that occurred on the way to the jail. A complaint was filed three days later on June 21, 1977, alleging an assault upon "David N. Cisneroz, a uniformed and properly identified county law enforcement officer . . . ."
The defendant appeared Pro se on the morning of the trial. The trial judge engaged the defendant in the following colloquy concerning defendant's right to counsel and waiver of a record:
The arraignment sheet is a preprinted form and the only reference to waiver of counsel contained therein is one sentence which reads: "Said defendant(s) then announce that the services of an attorney are * desired * x waived."
Officer Cisneroz and Chief Long testified for the state. The defendant explained that he had witnesses present to testify in his defense regarding the incident at the lake as he had assumed that was what he was being tried for, in view of having been arrested at the lake. He then declined to cross-examine the witnesses against him or to present any defense in his behalf. He was found guilty and was sentenced to ninety days in jail. This appeal followed.
The United States Supreme Court first made the Sixth Amendment's guaranty of the right to counsel through the due process clause of the Fourteenth Amendment applicable to state prosecutions in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Although the Supreme Court spoke of "(t)he right of one charged With crime to counsel," some question remained in legal circles as to whether the decision was limited to indigents charged with felonies.
In Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), the United States Supreme Court considered a factual situation wherein the state of Florida refused to appoint counsel for an indigent defendant charged with a misdemeanor, an offense punishable by maximum imprisonment of six months. The Supreme Court laid down an easily understandable rule of law that, "absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial." 407 U.S. at 37, 92 S.Ct. at 2012.
A defendant may waive the right to counsel. The waiver, however, may not be presumed from a silent record, and the state has the burden of showing that an accused was advised of his right to counsel, either retained or appointed, and that waiver of counsel was knowingly and intelligently made. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). The right to counsel in a case where a person may be imprisoned is a right guaranteed by the United States Constitution and as such the attempted waiver of that right should be strictly construed. Whether an accused knowingly and understandably waived his or her right to counsel after the assistance of counsel was offered would depend on the particular facts and circumstances of each case. State v. Irving, 216 Kan. 588, 589, 533 P.2d 1225 (1975).
The state relies on language found in James v. State, 220 Kan. 284, 553 P.2d 345 (1976), that a valid waiver of counsel was reflected in a journal entry which stated the defendant acknowledged in open court that he had not consulted an attorney, did not desire to do so, and waived his right to have an attorney advise him. From that finding the state concludes that if a court informs an accused of his right to the assistance of counsel, and the defendant responds affirmatively to a direct inquiry from the court as to whether he desires to proceed without assistance of counsel, then a valid waiver is shown. We do not agree. The James case was pursuant to K.S.A. 60-1507 wherein the defendant collaterally attacked an Oregon conviction which had been introduced and used by a Kansas judge in imposing the habitual criminal sentence. The sole question was the sufficiency of the record introduced in Kansas. That is a question far different from the one that faces this court.
The record before this court is barren of any evidence to show defendant was informed that counsel would be appointed by the court to represent him at no expense to him if he could not afford counsel. The defendant was declared to be indigent the day following the alleged waiver of counsel, and we were advised at oral argument that the defendant was indigent at all times material to this decision. We are unable to make a valid distinction between waiving the right to counsel at trial and waiving the right to have counsel present during custodial police interrogation. Individuals held for interrogation may not waive their right to have counsel present during interrogation without first being told in clear and unequivocal terms that they have a right to the presence of an attorney during the questioning, and that if they are unable to afford an attorney one will be appointed at no expense to them. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The right protected in Miranda is the Fifth Amendment privilege against self-incrimination. If the Fifth Amendment requires a Potential defendant to be advised of his or her right to counsel before a knowing and intelligent waiver can be made, then we have no difficulty concluding that the Sixth Amendment right to counsel requires equal notice to one accused of and being tried for a crime. When any person is accused of an offense, whether...
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