State v. Davis

• Decision Date: 02 October 2013
• Docket Number: No. 11–1496.,11–1496.
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Darrell K. DAVIS, Defendant Below, Petitioner.

231 W.Va. 696

749 S.E.2d 589

STATE of West Virginia, Plaintiff Below, Respondent

v.Darrell K. DAVIS, Defendant Below, Petitioner.

No. 11–1496.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 10, 2013.

Decided Oct. 2, 2013.

Syllabus by the Court

1. “ ‘A judge's decision to allow an accused to exercise his right to self-representation is reviewed under an abuse of discretion standard.’ Syl. Pt. 1, State v. Sandor, 218 W.Va. 469, 624 S.E.2d 906 (2005).” Syl. Pt. 8, State v. Surber, 228 W.Va. 621, 723 S.E.2d 851 (2012).

2. “The right of self-representation is a correlative of the right to assistance of counsel guaranteed by article III, section 14 of the West Virginia Constitution.” Syl. Pt. 7, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).

3. “ ‘A person accused of a crime may waive his constitutional right to assistance of counsel and his constitutional right to trial by jury, if such waivers are made intelligently and understandingly.’ Syllabus Point 5, State ex rel. Powers v. Boles, 149 W.Va. 6, 138 S.E.2d 159 (1964).” Syl. Pt. 4, State v. Surber, 228 W.Va. 621, 723 S.E.2d 851 (2012).

4. “ ‘A defendant in a criminal proceeding who is mentally competent and sui juris, has a constitutional right to appear and defend in person without the assistance of counsel, provided that (1) he voices his desire to represent himself in a timely and unequivocal manner; (2) he elects to do so with full knowledge and understanding of his rights and of the risks involved in self-representation; and (3) he exercises the right in a manner which does not disrupt or create undue delay at trial.’ Syllabus Point 8, State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173 (1983).” Syl. Pt. 5, State v. Surber, 228 W.Va. 621, 723 S.E.2d 851 (2012).

5. “ ‘ “The determination of whether an accused has knowingly and intelligently elected to proceed without the assistance of counsel depends on the facts and circumstances of the case. The test in such cases is not the wisdom of the accused's decision to represent himself or its effect upon the expeditious administration of justice, but, rather, whether the defendant is aware of the dangers of self-representation and clearly intends to waive the rights he relinquishes by electing to proceed pro se.” State v. Sheppard, , 310 S.E.2d 173, 188 (1983) (citations omitted).’ Syllabus Point 2, State v. Sandler, 175 W.Va. 572, 336 S.E.2d 535 (1985).” Syl. Pt. 5, State v. Sandor, 218 W.Va. 469, 624 S.E.2d 906 (2005).

6. “ ‘When an accused chooses to proceed without the assistance of counsel, the preferred procedure is for the trial court to warn the accused of the dangers and disadvantages of self-representation and to make inquiries to assess whether the accused's choice is knowing, intelligent and voluntary. In the absence of such a colloquy, a conviction may be sustained only if the totality of the record demonstrates that the accused actually understood his right to counsel, understood the difficulties of self-representation, and still knowingly and intelligently chose to exercise the right to self-representation.’ Syllabus Point 7, State v. Sandor, 218 W.Va. 469, 624 S.E.2d 906 (2005).” Syl. Pt. 7, State v. Surber, 228 W.Va. 621, 723 S.E.2d 851 (2012).

Steve A. Baker, Esq., E. Lavoyd Morgan, Jr., Esq., E. Lavoyd Morgan, Jr. & Associates, Lewisburg, WV, for Petitioner.

C. Michael Sparks, Esq., Mingo County Prosecuting, Attorney's Office, Williamson, WV, for Respondent.

PER CURIAM:

The petitioner, Darrell Keith Davis, appeals his August 11, 2011, convictions by a jury of multiple felonies in the Circuit Court of Mingo County, West Virginia. The petitioner'sprimary argument on appeal is that the trial court committed error in allowing him to represent himself, thereby depriving him of his constitutional right to assistance of counsel. Upon our consideration of the record in this matter, the briefs and arguments of the parties, and the applicable legal authority, and for the reasons discussed below, we find no error and, accordingly, affirm the petitioner's convictions.

I. Facts and Procedural Background

On July 31, 2010, the petitioner broke into a cabin on Newsome Ridge, Mingo County, where his wife, Lara Davis, and Gary Newsome were sleeping. After shooting Mr. Newsome in the forehead, the petitioner shot Ms. Davis in the back and then struck her in the head with the butt of his rifle. Before fleeing the scene with Ms. Davis, the petitioner set fire to the cabin while Mr. Newsome was still inside. For approximately five hours, the petitioner drove around while Ms. Davis begged him to take her to a hospital for her life-threatening injuries. The petitioner eventually drove to Fleming County, Kentucky, where his cousin persuaded him to take Ms. Davis to a hospital. The petitioner was later arrested and extradited to West Virginia. He was charged with the first degree murder of Mr. Newsome, the kidnapping and malicious assault of Ms. Davis, arson, and burglary.

At the initial arraignment hearing conducted on August 9, 2011, attorney Robert B. Kuenzel was appointed to represent the petitioner. During this hearing, the petitioner entered a plea of not guilty. Thereafter, attorney Diana Carter–Weidel was appointed as counsel for the petitioner in place of Mr. Kuenzel.¹

At the petitioner's arraignment following his indictment, which was held on January 20, 2011, he waived the reading of the indictment and again entered a plea of not guilty.² A scheduling order was entered and a trial date was set for March 29, 2011.

Ms. Weidel appeared on the petitioner's behalf at subsequent hearings held on February 22, March 14, and March 21, 2011. The March 21, 2011, hearing was conducted on the issue of the petitioner's competency to stand trial. During this hearing, a court-ordered mental status evaluation report completed on March 14, 2011, by psychiatrist Ralph S. Smith, Jr., M.D., and psychologist Rosemary Smith, was admitted into evidence.³ Among other things, the trial court made specific reference to that portion of the report opining that the petitioner “ ‘was able to state the crimes with which he stands charged and the possible penalties therefor[,]’ ” and that “ ‘[h]e was aware of the roles of various courtroom personnel and knew the purpose of the trial.’ ” ⁴ The trial court concluded that the petitioner was competent to stand trial. Also during the March 21, 2011, competency hearing, Ms. Weidel moved for a continuance of the trial date because, inter alia, discovery had not yet been completed. The motion for a continuance was granted and the trial was scheduled for April 5, 2011.

At a subsequent hearing conducted on March 28, 2011, Ms. Weidel requested the trial court's permission to obtain a second expert opinion as to the petitioner's competency to stand trial. The trial court granted Ms. Weidel's request. Thereafter, during the course of an April 4, 2011, hearing, Ms. Weidel moved to continue the April 5, 2011, trial date on the ground that the petitioner was not scheduled to undergo the second competency evaluation until April 18, 2011. After fully advising the petitioner, on the record, of his right to a speedy trial within the same term of court as his indictment, the trial court found that the petitioner knowingly and intelligently waived his right to a speedy trial and, thereafter, granted the motion for a continuance to allow further psychological testing. The trial was continued to May 24, 2011.

On May 23, 2011, the day before trial was scheduled to begin, Ms. Weidel moved to withdraw as the petitioner's counsel. As grounds for her motion, Ms. Weidel maintained that, during a recent meeting with the petitioner regarding the upcoming trial, the petitioner advised her that “he no longer wanted [her] to represent him and that he no longer had any faith in [her] representation.” Ms. Weidel further explained that the petitioner indicated to her that he had “a long list of witnesses he wanted subpoenaed [to testify at trial] but he would not give [her] their names or tell [her] what he wanted them to come testify about.” As a result, Ms. Weidel believed “it would be impossible for him [sic] to assist him or to represent him effectively at this point.” Upon inquiry of the petitioner by the trial court, the petitioner indicated that he “recommend[ed]” that the trial court grant Ms. Weidel's motion to withdraw, and further affirmed that he and Ms. Weidel had “attorney/client issues” resulting in irreconcilable differences as to the manner in which the petitioner wished to defend his case. The trial court granted Ms. Weidel's motion to withdraw.

Immediately after granting Ms. Weidel's motion to withdraw, the trial court appointed attorney Susan Van Zant as the petitioner's new counsel. However, the petitioner advised the trial court that he wished to represent himself. In response to the petitioner's request, and, indeed, throughout the course of the proceedings in this case, the record reveals that the trial court warned the petitioner of the dangers and disadvantages of self-representation while also recognizing his constitutional right to waive counsel and to represent himself. ⁵ Given the petitioner's stated desire to proceed pro se, the trial court appointed Ms. Van Zant as standby counsel.⁶ The trial was continued to August 9, 2011.

At subsequent hearings on May 31 and July 13, 2011, the petitioner reaffirmed his desire to proceed pro se. At the July 13, 2011, hearing, forensic psychiatrist Dr. Bobby Miller testified with regard to both the petitioner's competency to stand trial and to represent himself.⁷ Consistent with the previous psychological evaluation of March 14, 2011, Dr. Miller opined that the petitioner was competent to stand trial. He further opined that the petitioner has a “ ‘rational [and] factual understanding of the proceedings against him’ ” and that his “ ‘competence extends to those capacities necessary to represent himself....’ ” Dr. Miller also...