State v. Frazier
| Decision Date | 27 November 2019 |
| Docket Number | Unpublished Opinion No. 2019-UP-371,Appellate Case No. 2015-002464 |
| Parties | The State, Respondent, v. Terrence O'Neil Frazier, Appellant. |
| Court | South Carolina Court of Appeals |
THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
Appeal From Greenwood County
Eugene C. Griffith, Jr., Circuit Court Judge
REMANDED
Appellate Defender Laura Ruth Baer, and Appellate Defender Joanna Katherine Delany, both of Columbia, both for Appellant.
Attorney General Alan McCrory Wilson and Senior Assistant Attorney General David A. Spencer, both of Columbia, and Solicitor David Matthew Stumbo, of Greenwood, all for Respondent.
Terrence Frazier argues he is entitled to a new trial because he did not knowingly and intelligently waive his right to counsel. Frazier maintains that the record does not demonstrate that his decision to represent himself was made with an understanding of the risks of self-representation. We remand to the circuit court for an evidentiary hearing on the issue.
Law enforcement initially charged Frazier with trafficking methamphetamine, grand larceny, auto breaking, and leaving the scene of an accident based on a myriad of events that took place on July 9, 2015. At his preliminary hearing held on September 1, 2015, Frazier appeared pro se and had the following exchange with the municipal court:
Frazier was subsequently indicted on November 13, 2015, for breaking into a motor vehicle, grand larceny, trafficking in methamphetamine, leaving the scene of an accident, and carjacking.
On the first day of trial proceedings, November 16, 2015, Frazier again appeared pro se. After noting that Frazier refused the State's plea offer, the court asked, Frazier responded that he was prepared to proceed to trial. After the conclusion of pretrial matters, the State asked the court to give Frazier a Faretta1 warning, expressing concern that the warning given at the preliminary hearing "probably took five minutes" and was likely not comprehensive enough. The circuit court engaged in the following colloquy with Frazier:
The court then appointed Frazier standby counsel. Frazier was found guilty on all charges save for carjacking, for which the jury found him guilty of the lesser offense of use of a vehicle without permission. He was sentenced to incarceration for twelve months for leaving the scene of an accident, thirty-six months for use of vehicle without permission, sixty months for both grand larceny and breaking into a motor vehicle, and twenty years for trafficking methamphetamine second offense. This appeal follows.
Is Frazier entitled to a new trial because he did not knowingly and intelligently waive his right to counsel?
"Whether a defendant has knowingly, intelligently, and voluntarily waived his right to counsel is a mixed question of law and fact which appellate courts review de novo." State v. Samuel, 422 S.C. 596, 602, 813 S.E.2d 487, 490 (2018). Specifically, we review a circuit court's findings of historical fact for clear error; but we review the sufficiency of a waiver of counsel based on those findings of fact denovo. See id. (citing United States v. Bush, 404 F.3d 263, 270 (4th Cir. 2005)). "In doing so, ourt must consider the defendant's testimony, history, and the circumstances of his decision, as presented to the circuit [court] at the time the defendant made his request." Id.
Frazier argues he did not knowingly and intelligently waive his right to counsel at any point in the proceedings because he was not warned of the dangers of self-representation. We agree that the record fails to show that Frazier was either adequately warned of the dangers of proceeding pro se or had sufficient background to understand the risks of self-representation. We disagree, however, that a new trial is the proper remedy.
Under both the federal and state constitutions,2 a criminal defendant in South Carolina must be afforded the right to the assistance of counsel. Faretta, 422 U.S. at 807. A defendant may waive this right and represent himself, so long as his waiver is knowing and intelligent. State v. Barnes, 407 S.C. 27, 35-36, 753 S.E.2d 545, 550 (2014). To effectuate a valid waiver of the right to counsel under Faretta, the accused must be (1) advised of his right to counsel and (2) adequately warned of the dangers of self-representation. Watts v. State, 347 S.C. 399, 402, 556 S.E.2d 368, 370 (2001). "It is the [circuit court]'s responsibility to determine whether there is a competent, intelligent waiver by the defendant." Id. The type of warnings and procedures that should be required before allowing a waiver of the right to counsel depends on the particular stage of the proceedings in question. Iowa v. Tovar, 541 U.S. 77, 89-90 (2004). "Warnings of the pitfalls of proceeding to trial without counsel . . . must be 'rigorous[ly]' conveyed[,] . . . [h]owever, . . . at earlier stages . . . a less searching or formal colloquy may suffice." Id. at 89 (quoting Patterson v. Illinois, 487 U.S. 285, 298 (1988)).
"While a specific inquiry by the [circuit court] expressly addressing the disadvantages of a pro se defense is preferred, the ultimate test is not the [circuit court]'s advice but rather the defendant's understanding." Watts, 347 S.C. at 402, 556 S.E.2d at 370 (quoting Wroten v. State, 301 S.C. 293, 294, 391 S.E.2d 575, 576 (1990)). In the absence of this specific inquiry by the circuit court, the appellate court will look to the record to determine whether the defendant had a sufficient background or if he was apprised of his rights by some other source. See id.; Gardner v. State, 351 S.C. 407, 412, 570 S.E.2d 184, 186 (2002); see also State v. Cash, 309 S.C. 40, 43, 419 S.E.2d 811, 813 (Ct. App. 1992) (). "If the record demonstrates the defendant's decision to represent himself was made with an understanding of the risks of self-representation, the requirements of a voluntary waiver will be satisfied." Wroten, 301 S.C. at 294, 392 S.E.2d at 576.
Here, the record reflects that no adequate Faretta warning was given by the courts at any stage of the proceedings. At the preliminary hearing, the municipal court indicated it had merely "cautioned" Frazier that he should not go forward without an attorney. Such general warnings are inadequate. See State v. Bryant, 383 S.C. 410, 416, 680 S.E.2d 11, 14 (Ct. App. 2009). The record does not include any mention by the municipal court of the specific dangers of proceeding pro se. Likewise, the Faretta colloquy between Frazier and the circuit court was inadequate. While the court properly advised Frazier of his (1) right to representation, it failed to mention (2) any dangers of proceeding without counsel. Further, the record does not reflect that Frazier had sufficient background to understand the dangers of self-representation. He was twenty-five years old with a ninth grade education, was unrepresented by counsel throughout the entire matter, self-described his charges as "frivolous," and the record does not reflect that he had been through a criminal trial prior to the instant matter. See Gardner, 351 S.C. at 413, 570 S.E.2d at 187 (); Osbey v. State, 425...
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