State v. Freeman

• Decision Date: 26 November 1985
• Docket Number: No. 13842,13842
• Citation: 702 S.W.2d 869
• Parties: STATE of Missouri, Respondent, v. Paul FREEMAN, a/k/a Paul Washington, Appellant.
• Court: Missouri Court of Appeals

Page 869

702 S.W.2d 869

STATE of Missouri, Respondent, v. Paul FREEMAN, a/k/a Paul Washington, Appellant.

No. 13842.

Missouri Court of Appeals,

Southern District,

Division Three.

Nov. 26, 1985.

Motion for Rehearing or to Transfer

Denied Dec. 17, 1985.

Application to Transfer Denied

Feb. 18, 1986.

Holly G. Simons, Asst. Public Defender, Columbia, for appellant.

William L. Webster, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.

FLANIGAN, Judge.

A jury found defendant guilty of assault in the first degree, § 565.050, ¹ robbery in the first degree, § 569.020, and armed criminal action, § 571.015, and assessed the punishment at life imprisonment for each offense. The trial court ordered that the sentences run consecutively. Defendant appeals.

In the early morning of December 27, 1983, defendant, armed with a gun, entered a Piggley Wiggley store in Sikeston and asked store employee Wesley Francis for change for a $20 bill. While Francis was complying with the request, defendant knocked him to the floor and took over $70 from the cash register. Defendant then shot Francis three times in the head. Although Francis survived, his injuries were severe and rendered him blind in his left eye and deaf in his left ear. The events were witnessed by another store employee, Melvin Moon.

Defendant's first point is that the trial court erred "in not allowing defendant to proceed pro se at the trial level in that defendant asserted his right to so proceed and was denied this constitutionally recognized right with no inquiry into defendant's ability to conduct his own defense."

Defendant's first point was not included in his motion for new trial and accordingly has not been preserved for appellate review. Rule 29.11(d). Defendant has requested review under the "plain error" standards prescribed by Rule 29.12(b). This court affords plain error review and finds no merit in defendant's first point.

A defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). "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." State v. Ehlers, 685 S.W.2d 942, 945 (Mo.App.1985).

In State v. McCafferty, 587 S.W.2d 611 (Mo.App.1979), the court of appeals held that in the absence of any request by defendant to represent himself the trial court did not err in failing to inform him of his right to do so and that the right to self-representation is one which the defendant "must clearly and unequivocally assert before trial." The following authorities support the corollary principle that there can be no denial of the right to self-representation in the absence of an unequivocal request to exercise that right. United States v. Bennett, 539 F.2d 45, 50 (10th Cir.1976); People v. Potter, 77 Cal.App.3d 45, 143 Cal.Rptr. 379, 382 (1978); Russell v. State, 270 Ind. 55, 383 N.E.2d 309, 313 (1978); Anderson v. State, 267 Ind. 289, 370 N.E.2d 318, 320 (1977); Block v. State, 95 Nev. 933, 604 P.2d 338, 340 (1979); Stowe v. State, 590 P.2d 679, 682 (Okla.Crim.1979); Felts v. Oklahoma, 588 P.2d 572, 576 (Okla.Crim.1978). See 98 A.L.R.3d 13, 61, § 13.

Several hearings were held prior to the trial itself which was held on May 17, 1984. At all of these hearings the prosecutor appeared and the defendant appeared in person and by his attorney, Daniel A. Beatty, an assistant public defender.

On February 9, 1984, a hearing was held which was prompted by a letter which defendant sent to the court. Defendant informed the court that he did not feel that he was being represented properly and indicated he had had difficulty getting in contact with Mr. Beatty. Mr. Beatty informed the court that he was on active duty with the Navy in Seattle, Washington, when the defendant attempted to contact him. Mr. Beatty also said, "There was a letter from [defendant] regarding possible self-representation, which I understand he did not want to do at this time. However, it is also my understanding that he is trying to hire his own lawyer but has not been able to do so. His family may still be working on it." At the conclusion of that hearing defendant told the court that he wanted "to keep his attorney."

On March 10, 1984, a hearing was held. At that time the court ordered the case, at defendant's request, sent back to Scott County, from which defendant earlier had taken a change of venue. There was no mention of any dissatisfaction with attorney Beatty.

On April 26, 1984, a hearing was held. Attorney Beatty stated to the court, "[Defendant] has instructed me to file a motion to withdraw. He desires to retain his own counsel or to represent himself. I don't think he is satisfied with the way the case is going at this point."

The court asked the defendant what the problem was and defendant stated, "Mr. Beatty and I have not had communications I feel I am entitled to.... I have requested certain things of Mr. Beatty I would appreciate for him to do for me. Mr. Beatty told me he had done them, and when everything comes to a certain point, they have not been done."

The court asked the defendant, "What is your plan?" The defendant answered that he had been writing "to the U.S. District Court and Bar Association and trying to see if they will send me a lawyer." Defendant also said that he had been writing the NAACP. The court asked the defendant if he was going to hire an attorney and the defendant responded, "I didn't tell Mr. Beatty I was going to hire an attorney. I was telling Mr. Beatty I was going to see what would happen."

There was some discussion of obtaining another public defender for defendant but a representative of the public defender's office said, "There is just no provision for doing that."

The court asked the defendant what it was which he had asked attorney Beatty to do and which Beatty had not done. The defendant mentioned that he had requested Beatty to obtain a transcript of the preliminary hearing. Mr. Beatty stated he did not recall that request and that the hearing was not transcribed.

The following then occurred:

"THE COURT: Mr. Freeman, I am not going to let you represent yourself, because they would switch over to capital murder (sic) and put you in the gas chamber. You don't have that capability and that training to defend yourself....

My job is to see that you have adequate representation. If there is a personality conflict, that's one thing; but I am not going to let you represent yourself for your protection. They would take you out like a sitting duck and you wouldn't have a chance.

Now, the problem for me is to get you represented, but, at the same time, try to get you somebody that you can work with. The NAACP is not going to spend 10 cents on you. The Bar Association is not going to spend any money on you. If they did, it would take 50 million a year to represent people.

If I can't work it out with my defenders, why don't you see if the defender system will transfer Gary down here to take this case and maybe trade off something?

[REPRESENTATIVE OF THE PUBLIC DEFENDER'S OFFICE]: I can call my state office, but the policy has been in the past, and this has come up before in the other counties, where they have not made me come when other judges have requested me.

THE COURT: Let's see what we can work out, if there is an alternative available. If there is not, then Mr. Freeman, you may have to stay married to him, because, actually, the job to decide whether he's competent or not is left to me, and I have great faith in him. He is kind of quiet, but he knows his job. I will look into it, and if it is possible, change attorneys for you.

You have to understand if it's not possible and I cannot, you will have to stay hooked. I will not let you go in alone. This world is a war world. They are adversaries. You are not an adversary, and I will not let you walk in that meat grinder alone. You don't necessarily have to like the guy that defends you. That's something you need to know."

The defendant then informed the court that he had contacted a St. Louis lawyer and "he said due to my financial background that he couldn't." The following then occurred:

"THE COURT: I cannot assure you that I will take Mr. Beatty off the case, because I won't let you represent yourself. I don't think you can. That's the only reason. I am not going to have you knocked plumb in the puddle without somebody standing there. Even if they don't like you, they will do their best to defend you.

* * *

THE COURT: Are you happy with the venue right now?

THE DEFENDANT: Yes.

THE COURT: The only real complaint you have right now is you would like to change attorneys, if possible?

THE DEFENDANT: Yes.

MR. BEATTY: Your Honor, can I say just a couple of things? I don't have a conflict representing Mr. Freeman. I have been trying to do what he tells me to do. I think his personality conflict--it's on his part, not mine. I will be glad to represent him all the way through.

THE COURT: I understand. We will see if I can roll him another defender. If I cannot, what Mr. Beatty is saying, he is ready to go. Let's set this for trial."

The case was set for May 17, 1984. The court asked the defendant if that setting was all right and the defendant answered, "That's all right with me."

On May 10, 1984, the defendant informed the court that he had again been in touch with the St. Louis attorney and that the latter had said "he would charge me a total of $5,000 to represent the case." Defendant added, "I was going to see if I could get on the family." After being informed that the case was set for trial on May 17, the defendant said, "I wanted a little more time. It really...