State v. Ehlers

• Decision Date: 29 January 1985
• Docket Number: No. 13381,13381
• Parties: STATE of Missouri, Respondent, v. Ted Fred EHLERS, Appellant.
• Court: Missouri Court of Appeals

Page 942

685 S.W.2d 942

STATE of Missouri, Respondent, v. Ted Fred EHLERS, Appellant.

No. 13381.

Missouri Court of Appeals,

Southern District.

Jan. 29, 1985.

Motion for Rehearing or to Transfer

Denied Feb. 13, 1985.

Application to Transfer Denied

April 2, 1985.

Scott B. Tinsley, William H. Wendt, Springfield, for appellant.

John Ashcroft, Atty. Gen., Dan Crawford, John M. Morris, Asst. Attys. Gen., Jefferson City, for respondent.

FLANIGAN, Judge.

A jury found defendant guilty of assault in the first degree, § 565.050, ¹ by means of a deadly weapon, § 565.050.2, and he was sentenced to 18 years' imprisonment. At the trial the defendant, who is not a lawyer, represented himself. Defendant appeals.

The offense took place on October 20, 1982, at defendant's home in Springfield. The state's evidence shows that on that date defendant shot Douglas McQueen, the state's principal witness, with a pistol, injuring McQueen's hand. Also present during part of the episode was defendant's wife Jo Ehlers, a defense witness. Defendant did not testify. There were no other witnesses to the assault. The two-day trial commenced on May 23, 1983.

On this appeal defendant asserts that the trial court erred in the following respects; (1) permitting defendant to represent himself, (2) failing to instruct the jury on the issue of self-defense, (3) receiving evidence concerning a shooting incident which occurred on February 20, 1983, involving defendant, (4) receiving evidence concerning an incident which occurred on May 22, 1983, involving a burglary at defendant's residence, a knife attack upon defendant, and the theft of the knife by defendant's unknown assailant, and (5) failing to instruct the jury on the issue of "extreme emotional disturbance." For the reasons which follow, this court finds no merit in any of defendant's contentions and affirms the judgment.

Defendant's first point is that the trial court erred in permitting defendant to represent himself because: (a) the trial court did not adequately inform defendant of the dangers and disadvantages of self-representation, (b) the trial court did not adequately explore defendant's intellectual capacity to make the decision to waive counsel, and (c) the trial court did not inform the defendant that he could not subsequently claim inadequacy of representation. These alleged deficiencies, defendant argues, made his waiver of counsel ineffective because it was not "knowing and intelligent."

The Sixth and Fourteenth Amendments guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. A defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. A state may not constitutionally hale a person into its criminal courts and there force a lawyer upon him when he insists that he wants to conduct his own defense. The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. Although in most criminal prosecutions a defendant could better defend with counsel's guidance than by his own unskilled efforts, the defendant must be free personally to decide whether in his particular case counsel is to his advantage. When a defendant manages his own defense he relinquishes many of the traditional benefits associated with right to counsel. For this reason, in order to represent himself, the defendant must knowingly and intelligently forgo those relinquished benefits. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). "Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he 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.' " Faretta, supra, 95 S.Ct. at 2541.

Missouri, prior to Faretta, recognized a criminal defendant's right to represent himself. The right is based on Art. 1, § 18(a) of the Missouri Constitution, and Rule 31.02(a). See Bibbs v. State, 542 S.W.2d 549, 550 (Mo.App.1976), and the authorities cited there.

Sec. 600.051 authorizes the trial court to permit the waiver of counsel to be filed in any criminal case wherein a defendant may receive a jail sentence or confinement if the court first determines that defendant has made a knowledgeable and intelligent waiver of his right to assistance of counsel and the waiver is signed before and witnessed by the judge or clerk. The statute lists six items of information which the waiver must contain and which the defendant has read or which have been read to him before he signs. Rule 31.02(a) imposes upon the trial judge a duty to inform the defendant of his rights and to find that the defendant has intelligently waived his right to counsel.

In various settings a waiver of counsel has been held valid, State v. Thomas, 637 S.W.2d 81 (Mo.App.1982); Powell v. State, 581 S.W.2d 37 (Mo.App.1979); State v. Quinn, 565 S.W.2d 665 (Mo.App.1978); State v. Gaye, 532 S.W.2d 783 (Mo.App.1975), or invalid, State v. Tilley, 548 S.W.2d 199 (Mo.App.1977). In State v. Quinn, supra, an appendix to the opinion suggests topics which the trial judge should discuss with the defendant in determining the adequacy of the waiver of counsel. The state has the burden of producing evidence of a voluntary and understanding waiver. State v. Tilley, supra.

At his arraignment and preliminary hearing defendant appeared in person and by counsel. Thereafter both sides conducted discovery through counsel. On February 3, 1983, the court sustained a motion by defense counsel to withdraw.

On February 7, 1983, a hearing was held before Judge Max Bacon at which the defendant appeared pro se. The defendant stated to the court, "I am requesting, again, that I be able to represent myself in this case." A signed waiver, in the form prescribed by § 600.051, was obtained by the defendant in accordance with the procedure set forth in the statute.

Defendant informed Judge Bacon that he was financially able to employ counsel but preferred to represent himself. Judge Bacon advised the defendant on the perils of self-representation. The defendant, who was 47, informed the court that he had been "house attorney for a truck line" for several years, and participated in several trials, as counsel, under Rule 172 of the I.C.C. The defendant said that he had cross-examined witnesses and had been cross-examined himself "for several years." He told Judge Bacon that that experience would help him in representing himself in this case and added, "I just feel that since I was at the scene of the crime that I am more qualified to represent myself than anyone else."

The defendant was informed that there were many things a lawyer might know how to do in his defense which defendant might not know how to do. These things included discovery, preparing the case for trial, finding out what the prosecutor's case is, and finding out what evidence and arguments there are on defendant's behalf. The defendant was told that at the trial itself a lawyer would know how to select the jury, examine and cross-examine witnesses, prepare instructions, and make an opening statement and closing argument. Judge Bacon told the defendant that a person who is not trained in the law has a distinct disadvantage with respect to those things. Defendant stated that he understood but that he still desired to represent himself. Judge Bacon said he would permit the defendant to do so.

On the morning of the trial, and before it commenced, Judge J.A. Appelquist, who conducted the trial, had an extended colloquy with the defendant with regard to self-representation. The defendant informed the court that he had a tenth grade education, that he had no difficulty in understanding English, that he understood that the state would be represented by a licensed attorney, and that he knew that he had a right to an attorney. He informed the court, "I have to represent myself and such is my intention." The written waiver, previously obtained on February 7, was brought to the attention of Judge Appelquist. The prosecutor called the court's attention to State v. Quinn, supra, and its appendix.

From the foregoing it is clear that there is no factual foundation for prongs (a) and (b) of defendant's first point. Defendant cites no authority for the proposition that the failure of Judge Bacon and Judge Appelquist to inform defendant expressly that he could not subsequently claim inadequacy of representation makes the waiver invalid. Sec. 600.051 does not specifically require that item of information be imparted but it is set forth in the appendix to State v. Quinn. On the instant record this court holds that defendant's waiver of counsel was a knowing and understanding one. State v. Thomas, supra; State v. Tyler, 622 S.W.2d 379 (Mo.App.1981); State v. Nicolosi, 588 S.W.2d 152 (Mo.App.1979); State v. Rollie, 585 S.W.2d 78 (Mo.App.1979); Powell v. State, supra; State v. Gaye, supra. Defendant's first point has no merit.

Defendant's second point is that the trial court erred in failing to instruct on the issue of self-defense because there was evidence, contained in the testimony of Jo Ehlers, that defendant "attempted to terminate the confrontation [with McQueen] and thereafter McQueen went toward his gun when defendant shot him."

Only McQueen and defendant's wife Jo Ehlers testified to the circumstances leading up to and including the assault. Defendant makes no claim that McQueen's testimony entitled defendant to an instruction on self-defense.

McQueen, a Greene County deputy sheriff, became acquainted with defendant around October 1, 1982. At defendant's request McQueen taught defen...