State v. Hollins, 56079

• Decision Date: 24 May 1984
• Docket Number: No. 56079,56079
• Citation: 9 Kan.App.2d 487,681 P.2d 687
• Parties: STATE of Kansas, Appellee, v. Carl S. HOLLINS, Appellant.
• Court: Kansas Court of Appeals

Page 687

681 P.2d 687

9 Kan.App.2d 487

STATE of Kansas, Appellee, v. Carl S. HOLLINS, Appellant.

No. 56079.

Court of Appeals of Kansas.

May 24, 1984.

Syllabus by the Court

1. A defendant who clearly and unequivocally expresses a desire to proceed pro se has the right to represent himself after a knowing and intelligent waiver of his right to counsel.

2. A knowing and intelligent waiver requires that the defendant be informed 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.

3. The trial court must indulge every reasonable presumption against waiver of the right to counsel.

4. A defendant can assert the right to self-representation only by waiving the right to counsel, and the right to self-representation can be waived by mere failure to assert it.

5. A defendant's request to be relieved of counsel in the form of a general statement of dissatisfaction with his attorney's work does not amount to a knowing and intelligent waiver of his right to counsel, or an invocation of the right to represent himself.

6. Various alleged trial errors are considered and it is held, the trial court did not err.

Richard Sanborn, Wichita, for appellant.

James D. Hall, Asst. Dist. Atty. and Robert T. Stephan, Atty. Gen., for appellee.

Before ABBOTT, P.J., MEYER, J., and RICHARD W. WAHL, District Judge assigned.

WAHL, Judge (Assigned):

The defendant, Carl S. Hollins, appeals a conviction of felony theft. On September 20, 1980, the defendant rented a white Oldsmobile Delta 88 from U-Drive-It Systems in Wichita. The car's vehicle identification number was 3N69R8X115813. The value of the car was well over $100.00. The defendant agreed to return the vehicle in four days, but he did not return the car at all and criminal charges were filed on November 14, 1980.

The defendant was not found until February 5, 1983, when a Selma, Alabama, police officer stopped him for erratic driving. The defendant was arrested for driving while intoxicated, and his vehicle, a white Oldsmobile Delta 88, identification number 3N69R8X115813, was impounded by the police.

Before trial, the defendant provided a handwriting sample, and at the trial a handwriting expert testified that the defendant had also signed the rental agreement in September, 1980. The jury found the defendant guilty and the defendant appeals, claiming three areas wherein the trial court erred.

The defendant contends that when the trial court refused to discharge his counsel, the defendant was denied his right to self- representation. The contention is without merit.

At the beginning of the preliminary hearing the defendant expressed dissatisfaction with his attorney as follows: "Mr. Underwood (sic) has been quite busy here as of late, and I feel that he's been a little bit too busy.... I feel that this Court would be more than fair with me and Mr. Underwood can go on about his other business. He's quite busy and he's too busy for me, to talk to me really, so I feel that the Court would be more than fair with me.... I haven't had any chance to talk to Mr. Underwood. I talked to Mr. Underwood maybe one time for a very short time and it's been quite some time ago, sir, and I'm sorry, I just haven't been able to say anything to him, and, well, he is quite busy...." The Court refused to discharge defendant's counsel and inquired if the defendant wished to talk to his attorney before proceeding with the hearing. The defendant replied, "I need to talk to someone." The Court then granted a recess to permit the defendant and his attorney to discuss the case. After the recess, the defendant continued to express dissatisfaction with his attorney's handling of the case. The Court did not discharge Mr. Underhill, who continued to represent the defendant through the trial. On the day of the trial, the defendant again expressed dissatisfaction with his attorney and demanded a different attorney. The Court denied the request and the case went to trial.

The constitutional right to self-representation was first recognized in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The United States Supreme Court held that a defendant who clearly and unequivocally expresses a wish to proceed pro se has the right to represent himself after a knowing and intelligent waiver of his right to counsel. A knowing and intelligent waiver requires that the defendant be informed 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.' " 422 U.S. at 835, 95 S.Ct. at 2541.

The courts must indulge "every reasonable presumption against waiver" of the right to counsel, and will "not presume acquiescence in the loss of fundamental rights." State v. Carlin, 7 Kan.App.2d 219, 640 P.2d 324, rev. denied 231 Kan. 801 (1982).

In Brown v. Wainwright, 665 F.2d 607 (5th Cir.1982), the Court analyzed the right to self-representation and its converse, the right to counsel. The Court noted that while the right to counsel remains in force unless affirmatively waived, the right of self-representation does not attach unless asserted. A defendant can assert the right to self-representation only by waiving the right to counsel, and, unlike the right to counsel, the right to self-representation can be waived by mere failure to assert it.

A defendant's assertion of the right to...