State v. Garth

• Decision Date: 15 November 2011
• Docket Number: No. ED 96138.,ED 96138.
• Citation: 352 S.W.3d 644
• Parties: STATE Of Missouri, Plaintiff/Respondent, v. Paul C. GARTH, Defendant/Appellant.
• Court: Missouri Court of Appeals

352 S.W.3d 644

STATE Of Missouri, Plaintiff/Respondent,

v.Paul C. GARTH, Defendant/Appellant.

No. ED 96138.

Missouri Court of Appeals, Eastern District, Division Three.

Nov. 15, 2011.

Kent Denzel, Columbia, MO, for Defendant/Appellant.

Timothy A. Blackwell, Jefferson City, MO, for Plaintiff/Respondent.

SHERRI B. SULLIVAN, Judge.

Introduction

Paul C. Garth (Appellant) appeals from the trial court's judgment entered upon a jury verdict finding Appellant guilty of first-degree domestic assault in violation of Section 565.072.¹ We affirm.

Factual and Procedural Background

The State charged Appellant by indictment with first-degree domestic assault, for events transpiring on December 18, 2009. Viewed in the light most favorable to the verdict, the following evidence was presented at trial.

Assault

In December 2009, Appellant was living with Victim as her boyfriend. Victim broke off their relationship after Appellant wrote “I love u” on a bullet and gave it to Victim. On December 17, 2009, Appellant sent Victim a text message stating, “We over i will get my boxes and leave your keys.” Appellant went to Victim's house that evening and they argued into the night. At approximately 2:00 a.m. the next morning, December 18, 2009, Appellant went to the basement and retrieved a can of gasoline. Appellant poured the gasoline on Victim, stating that if he couldn't have her, no one would. Victim tried to run away, but Appellant struck a lighter and set her on fire.

Victim rolled on the floor to put out the fire. Appellant got a bathroom rug to help put out the fire and said he was sorry and he didn't think it would light. However, Appellant did not call for assistance and did not render any first aid. Victim begged Appellant to take her to the hospital. Appellant refused because he was afraid of going to jail. Victim finally persuaded Appellant to take her to the hospital by promising that she would tell the hospital personnel that she injured herself and that Appellant did not do it. Appellant took Victim to the hospital, where Victim stated that she tried to kill herself by pouring gasoline on herself and lighting it because her grandmother had just died. Victim then went into shock and lost consciousness. Victim suffered burns to her hands, arms, back, torso, neck, and face, and received skin grafts on her hand.

The next day, December 19, 2009, Appellant called Victim's ex-mother-in-law, E.E., and told her that they had been messing with a gas can on the stove and Victim lit a cigarette and “blew herself up.” ² Victim's son, C.E., heard about it and called Appellant, asking him what had happened. Appellant told him that Victim poured kerosene on herself and lit herself on fire. C.E. asked Appellant why he did not call 911 or notify family members, to which Appellant responded that he had been trying to extinguish the fire and had burnt his hands. Victim's brother, W.J., visited Victim at the hospital and was informed by hospital personnel that Victim had said that she had done this to herself. WJ. did not believe that Victim would do this to herself. Victim had tubes down her throat and was unable to speak, but W.J. asked her to blink her eyes twice if somebody had done this to her and she blinked twice. W.J. then asked her to blink once if Appellant had done this to her and she blinked once. Hospital personnel called the police.

At Victim's house, Officer Patrick Hill (Officer Hill) observed a large burn mark on the dining room carpet, burn marks on the bathroom cabinet and floor, burnt clothing in the kitchen trash can, a burned bathroom rug at the bottom of the basement steps, and a gasoline can in the basement.

On December 22, 2009, after the tubes were removed from Victim's throat, she told Officer Hill that Appellant had tried to kill her by setting her on fire. Victim then went into cardiac arrest but survived. On January 5, 2010, Victim was discharged from the hospital, but was still being treated regularly for her injuries at the time of trial in November, 2010.

Pre–Trial

Waiver of Counsel Hearings

On May 11, 2010, Appellant filed a motion for change of appointed counsel. On July 1, 2010, Appellant filed a motion to represent himself as a pro se litigant, stating that he wished to represent himself, and asking for standby counsel. On August 10, 2010, the trial court held a hearing on the matter.

Appellant told the court that he wished to discharge the public defender and represent himself because he did not feel that the public defender was representing him fairly, and she had not “stood by” the requests and motions that he had filed. The trial court asked Appellant what he wanted it to do, and Appellant stated that he wanted to be allowed to represent himself with standby counsel. The trial court advised Appellant that he was facing “very serious charges,” that “Domestic assault First Degree is an A felony,” and “[t]he minimum is ten years up to life imprisonment.” The trial court asked Appellant if he understood that. Appellant stated that he did. The trial court then advised Appellant that representing himself would be a serious mistake, and asked if he understood that. Appellant said that he did.

The trial court then went through the provisions of the waiver form with Appellant. Appellant signed a waiver form stating that he was charged as a persistent offender with the class A felony of domestic assault in the first degree and that the range of punishment was 10 to 30 years or life in prison; he had a right to a trial by judge or jury; he had a right to have an attorney represent him throughout the proceedings; the court would appoint an attorney if Appellant could not afford one; Appellant would be bound by the same rules of evidence and procedure as the prosecutor or any attorney; the court would not function as his attorney or give him legal assistance or advice; Appellant could request the assistance of counsel at any time during the proceedings even though he had waived his right to counsel; Appellant was aware that any recommendations by the prosecuting attorney or other prosecuting official were not binding on the judge and might or might not be accepted by the judge; and if Appellant pled guilty or was found guilty of the charge, the judge was most likely to impose a sentence of confinement.

The trial court asked Appellant if he understood that if he relinquished his right to counsel and then requested counsel later in the trial that he would no longer be acting pro se. Appellant responded, “Yes and no. I understand that if I ask for assistance of counsel her counsel would only be as a standby as to where she would not allow me to make a decision that would—further affect my sentencing so other than that, no.” Then the trial court stated, “Let's go through it again,” and stated that Appellant could request the assistance of counsel at any time during the proceedings even though he had waived his right to counsel. Appellant indicated that he understood that.

The court asked Appellant if he understood that he would have to ask questions and present evidence in accordance with the technical legal rules of evidence and Appellant indicated that he understood. The trial court asked Appellant if he understood that if he disrupted the trial or got confused by the rules of procedure, this would be a great disadvantage to him, and if he understood that if Appellant looked like he did not know what he was doing in front of the jury, this would hurt him. Appellant indicated that he understood. The trial court asked Appellant if he understood that if the judge had to stop the trial and bring in a lawyer to represent him, “you and your lawyer will be in a serious disadvantage at that point?” Appellant replied, “Yes, sir, I do.”

The trial court then asked, “Knowing this, do you still wish to proceed pro se ?” and Appellant responded, “Yes, sir.” The trial court then stated “Now, I have no inclination to appoint standby counsel for you. Are you ready to proceed pro se then?” Appellant stated, “Yes, sir.”

The trial court warned Appellant again, “Okay. So do you understand that I believe that it's very likely that you will be convicted if you represent yourself in this matter?” Appellant answered, “Yes, sir.” The trial court asked Appellant if he understood that it would be practically impossible to negotiate a plea bargain or deal with a prosecutor by himself, and Appellant indicated that he understood. Appellant indicated that he understood that he would have to ask proper questions of prospective jurors, know the legal grounds to objecting to jurors, and know how to make peremptory challenges. The trial court asked if Appellant understood that at trial he would have to know when and how to object to evidence and, to do so, he would need to know something about hearsay evidence rales, relevancy, and use of prior convictions to impeach witnesses, but if he failed to make a proper objection, evidence would come in which would damage his chances with the jury. Appellant indicated that he understood all of these things. Appellant understood that any questions he asked witnesses would have to follow the rales, and if not, objections by the State would be sustained. Appellant understood that if he was the one asking questions, he might say something that would influence the jury against him or suggest that he knew something that he was trying to hide. The trial court asked Appellant again if he wanted to be his own lawyer and Appellant responded, “Yes, sir.”

The following exchange occurred next:

Q: Has anybody threatened you, mistreated you, or offered you any promise or consideration or in any way forced you to act as your own lawyer?

A: No, sir.

Q: For the last time I'm going to strongly advise you against representing yourself pro se, but is that what you want to do is represent yourself pro se?

A: Yes, sir.

Q: Do you have any mental health issues?

A: No, sir.

Q: Have you ever been under the care of...