State v. Frampton
| Decision Date | 09 April 1987 |
| Docket Number | No. 20279,20279 |
| Citation | 737 P.2d 183 |
| Parties | , 2 U.S.P.Q.2d 1835 STATE of Utah, Plaintiff and Respondent, v. Ted FRAMPTON, Defendant and Appellant. |
| Court | Utah Supreme Court |
A.W. Lauritzen, Logan, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
Defendant Ted Frampton was charged with two counts of criminal simulation for violating U.C.A., 1953, § 76-6-518(1)(c), (d), a third degree felony ("Count 1"), and U.C.A., 1953, § 76-6-518(1)(b), a class B misdemeanor ("Count 2"). 1 After a trial held on September 5, 1984, a jury returned a verdict finding defendant guilty on both counts. We find defendant's claims of error below without merit and therefore affirm his conviction.
In March 1983, defendant offered to sell several baseball gloves to Chris Larsen, the manager of Al's Sporting Goods in Logan, Utah. Defendant offered to sell the gloves for $50 each. The gloves bore the Wilson A2000 mark, and defendant represented that they were genuine Wilson gloves. Upon examining them, however, Larsen concluded that they were counterfeit and declined to buy any. When Larsen told defendant the gloves were counterfeit, defendant insisted they were genuine Wilson gloves.p A day or so later, Steve Hansen, an employee of Al's Sporting Goods, went to defendant's place of business and bought a baseball glove from defendant for $50. This glove also bore the Wilson A2000 mark, and defendant represented that it was a genuine Wilson glove. While at defendant's business, Hansen also observed a box filled with thirty-five to fifty additional gloves. According to Hansen and others, the glove he bought was not a genuine Wilson glove, but was an inferior imitation. Hansen's purchase was made under the supervision of the Logan City police, who were investigating defendant in response to a complaint by Wilson Sporting Goods.
As part of the police investigation, Larsen had a recorded telephone conversation with defendant, a transcript of which was admitted at trial. During the conversation, Larsen negotiated the purchase of eleven gloves at $40 each. Defendant told Larsen the gloves were Wilson A2000 gloves, which were made in Korea. Larsen responded that he had contacted Wilson Sporting Goods and had been told that all A2000's were made in the United States. Furthermore, he told defendant that he could not get the gloves from Wilson for a similar price.p Also in March 1983, two advertisements appeared in local newspapers offering the A2000 glove for sale at defendant's place of business for $50 each.
On March 10, 1983, the Logan City police conducted a search of defendant's business. Pursuant to that search, police seized thirty-eight baseball gloves bearing the Wilson A2000 mark. A Wilson Sporting Goods representative examined the gloves and determined that they were counterfeit.
On October 18, 1983, defendant was tried on two counts of criminal simulation. Defendant was represented by counsel, and the trial resulted in a hung jury. Defense counsel subsequently withdrew from the case, and a new trial date was set for February 15, 1984. Defendant represented himself at his second trial. Partway through this trial, the judge recused himself and a mistrial was declared.
A third trial was held on September 5, 1984. On that morning, defendant informed the court he intended to represent himself. The court advised him that he had a constitutional right to defend himself and that he would be accorded "every courtesy along that line." Nevertheless, over defendant's objection, the court appointed a public defender as standby counsel for defendant.
During trial, the jury heard testimony from two other people who had purchased gloves from defendant in transactions unrelated to those for which he was charged. The purpose of this testimony was to establish that defendant had the necessary intent to commit the crimes charged. In this regard, defendant had told one of these witnesses that the gloves he was selling had been made in the United States. In response to a question on cross-examination another witness testified he believed defendant knew the mitts were counterfeit.
Defendant contends that his conviction should be overturned because he failed to knowingly and intelligently waive his right to counsel. 2 Since defendant expressly declined an offer of counsel by the trial judge, he has the burden of showing by a preponderance of the evidence that he did not so waive this right. 3 Defendant has failed to meet this burden.
Defendant's claim must be reviewed in light of his decision to proceed pro se. In Faretta v. California, 4 the United States Supreme Court noted that the sixth amendment to the United States Constitution, which gives criminal defendants the tools to put on a defense, 5 implicitly guarantees the right of a competent accused to represent himself, without counsel, in state criminal proceedings. 6 An accused's right to conduct his own defense must be respected and guarded by the courts in harmony with the right to assistance of counsel, also guaranteed by the sixth amendment. 7
It has long been settled that the right to assistance of counsel is personal in nature and may be waived by a competent accused if the waiver is "knowingly and intelligently" made. 8 Such waiver must of course be voluntary. 9 It follows therefrom that an accused's decision to defend himself is a waiver of the right to assistance of counsel. However, it is the trial court's duty to determine if this waiver is a voluntary one which is knowingly and intelligently made. 10 p In making this determination, the defendant "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.' " 11 Generally, this information can only be elicited after penetrating questioning by the trial court. Therefore, a colloquy on the record between the court and the accused is the preferred method of ascertaining the validity of a waiver because it insures that defendants understand the risks of self-representation. Moreover, it is the most efficient means by which appeals may be limited. 12 p Even absent such a colloquy, however, this Court will look at any evidence in the record which shows a defendant's actual awareness of the risks of proceeding pro se. 13 In this regard, whether a knowing and intelligent waiver has been made turns upon the particular facts and circumstances surrounding each case. 14 p Although a defendant's background is relevant to his ability to waive his right to counsel, 15 that background
is not relevant to show whether a sensible, literate, and intelligent defendant possesses the necessary information to make a meaningful decision as to waiver of counsel. The fact that a defendant is well educated, can read, or has been on trial previously is not dispositive as to whether he understood the relative advantages and disadvantages of self-representation in a particular situation.
In the absence of a colloquy, the record must somehow otherwise show that the defendant understood the seriousness of the charges and knew the possible maximum penalty. The record should also show that the defendant was aware of the existence of technical rules and that presenting a defense is not just a matter of telling one's story. 16
In this case, the record clearly indicates that defendant knew he was entitled to appointed counsel if he could show that he was indigent. And though he failed to satisfy the circuit court of his inability to secure counsel, defendant was provided or retained counsel after having been bound over to district court. The value of counsel should have been apparent to defendant. His first trial on October 15, 1983 (where he was represented by counsel), resulted in a hung jury.
Subsequent to that first trial, defendant's attorney withdrew from the case. However, the record fails to indicate that defendant requested new counsel from Judge Christoffersen even though he knew he had a right to appointed counsel if he could not afford an attorney. Instead, defendant represented himself at his February 15, 1984 trial until Judge Christoffersen recused himself and declared a mistrial.
Prior to his third trial on September 5, 1984, defendant filed eighteen motions on his own behalf. In two of these motions, defendant asserted his right to assistance of counsel. However, defendant insisted on being represented by a non-member of the Bar. 17 It is well established that a criminal defendant has no constitutional right to have unlicensed or lay counsel represent him. 18 On the day of his third trial, defendant stated in chambers that he was going to exercise his right to defend himself and objected to the judge's decision to appoint standby counsel. He also refused to receive any help from the appointed counsel. 19
Indeed, the record adequately supports the conclusion that defendant knowingly and intelligently waived the right to representation by counsel. Defendant had previously been to trial twice before on the same charge. During voir dire, the judge explained the charges in open court, including the maximum penalty defendant could face if found guilty on both counts. Furthermore, in order to determine whether the jury understood the implications of the law, defendant himself spoke to the jurors about the statute under which he was charged. Finally, the judge truly accorded defendant every courtesy by explaining applicable procedure and giving defendant extremely wide latitude in conducting his defense. Defendant knew he faced a felony charge and was aware of the penalty he could be subjected to if found guilty. He also knew that the judge insisted upon having counsel present. Therefore, we find defendant's claim that he did not knowingly and intelligently waive his right to assistance of ...
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