State v. Howell

• Decision Date: 08 June 2021
• Docket Number: ED 108571
• Court: Missouri Court of Appeals
• Parties: STATE of Missouri, Respondent, v. Cruz HOWELL, Appellant.

628 S.W.3d 750

STATE of Missouri, Respondent,

v.Cruz HOWELL, Appellant.

ED 108571

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: June 8, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied July 13, 2021

Application for Transfer Denied October 5, 2021

Jedd Christian Schneider, 1000 West Nifong, Bldg. 7, Suite 100, Columbia, MO 65203, for appellant.

Julia Elizabeth Rives, PO Box 899, 221 W. High Street, Jefferson City, MO 65102, for respondent.

Robin Ransom, Presiding Judge

Introduction

Cruz Howell ("Howell") appeals the sentences and convictions for three counts of second-degree domestic assault entered after a jury verdict. He argues the trial court plainly erred in denying his request for counsel and in denying his motions to dismiss his case for speedy-trial violations. We affirm.

Background

The State charged Howell as a prior and persistent offender with one count of the class D felony of domestic assault in the second degree for knowingly causing physical injury to K.L. on April 13, 2018, by striking her in the face with his fist. K.L. and Howell were family members, in that they lived together and had a child together. As a result of Howell's attack, she had visible injuries to her face. At K.L.’s request, Howell was released on bond to house arrest, and the bond court permitted him to leave the house five days a week to work so that he could afford a lawyer. Howell was ordered to have no contact with K.L. On July 18, 2018, Howell was arrested and again charged with two counts of the class D felony of domestic assault in the second degree, and his bond was revoked. The State asserted Howell knowingly caused serious physical injury to K.L. by beating her with a metal stool and an aluminum bat, after which K.L. was treated for a broken wrist and multiple contusions. The two cases were consolidated for trial.

Howell filed his first pro se motion asserting his right to a speedy trial in November 2018. While his case was pending, he filed multiple pro se motions reasserting his speedy-trial rights and multiple pro se motions to dismiss for violations of this right. The trial court denied Howell's motions to dismiss for speedy-trial violations, finding Howell failed to prove he suffered prejudice from the delay or was deprived of the ability to adequately defend himself against the charges.

Regarding Howell's history of legal representation in this case, a public defender initially entered an appearance on Howell's behalf in April 2018. At a hearing in June 2018, Howell informed the court he did not want the public defender to represent him but wanted to hire his own attorney. On July 10, 2018, Frederick Hawk ("Hawk") entered his appearance on Howell's behalf, but at the hearing on February 25, 2019, Hawk requested to withdraw as Howell's counsel because Howell was not following Hawk's advice and refused to listen to Hawk's counsel on what the law was. The trial court granted Hawk leave to withdraw as counsel over Howell's objection. At the same hearing, Howell initially made an oral request to represent himself rather than have a public defender appointed, but, after the trial court strongly encouraged that he have counsel, he requested he be allowed to seek private counsel. The trial court lifted Howell's jail telephone restrictions¹ only to allow him to contact attorneys, and the court set a pretrial hearing for April 15, 2019, to hear all outstanding motions and to choose a trial date.

At the April 15 hearing, Howell submitted signed requests to waive his right to counsel. The trial court strongly and repeatedly warned Howell of the perils of proceeding with self-representation but granted the requests after engaging Howell in an extensive colloquy on the rights he was waiving and the legal procedures he would have to follow. Notably, the trial court specifically inquired if Howell understood how to select a jury by asking proper questions, the legal grounds on which to object to jurors, and how to make peremptory challenges, to which Howell responded he did. The trial court inquired if Howell wanted the court to appoint an attorney to sit with him and give him advice during trial, which Howell declined. The court then set trial for the first available date of September 9, 2019. On the morning of trial, Howell again affirmed his intent to represent himself but also requested standby counsel from the public defender's office, to which the State responded that it was their understanding the public defender's office has a policy that it will not second chair trials.

After voir dire, however, Howell requested an attorney, stating he did not know what he was doing because he was not an attorney. The trial court responded: "You have been given numerous opportunities. In fact you had a lawyer. I begged you to reconsider time and time again, so now we're here and I see this only as a delaying tactic." Howell clarified he did not want to stop the trial; he just wanted counsel to assist him. The trial court stated it would contact the public defender's office on Howell's behalf to see if it would send an attorney but also declared it would not continue the trial at this point because trial had already started, Howell had insisted on representing himself despite repeated warnings not to do so, and Howell had consistently refused to apply for a public defender. During the lunch break, the trial court contacted the public defender's office but they declined to sit with Howell during trial. The trial court refused to continue the case. Howell then requested, and the trial court granted, the opportunity to talk with relatives to try to obtain private counsel for him. Howell was unable to obtain private counsel and he represented himself pro se. After a trial, the jury convicted Howell on all charges. Howell does not challenge on appeal the sufficiency of the evidence supporting his convictions. The trial court sentenced Howell as a prior and persistent offender to concurrent sentences of ten years on each count in the Missouri Department of Corrections. This appeal follows.

Discussion ²

Point I

In his first point on appeal, Howell argues the trial court plainly erred in denying his unequivocal request for an attorney and failing to appoint him counsel at trial, in violation of his right to counsel under the Sixth and Fourteenth Amendments of the United States Constitution and Missouri Constitution, resulting in structural error. We disagree.

Howell concedes this issue was not preserved for appellate review. During the trial, at which Howell appeared pro se, he did not object to the trial court's failure to appoint him counsel. While the trial court appointed counsel during sentencing and counsel filed a motion for a new trial that included this claim, the motion was untimely filed. Nevertheless, Howell requests plain-error review under Supreme Court Rule 30.20.³ Plain error occurs where the record facially establishes substantial grounds to believe plain error occurred, which is error that is evident, obvious, and clear, resulting in manifest injustice or a miscarriage of justice. State v. McCleary , 423 S.W.3d 888, 896 (Mo. App. E.D. 2014).

"The Sixth and Fourteenth Amendments of the [United States] Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment." Faretta v. California , 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Included in the Sixth Amendment right to counsel is a defendant's opposite right to waive counsel and to make his or her own defense. See id. at 819, 95 S.Ct. 2525 ; see also Section 600.051.1 (setting forth required findings for written waiver of counsel).⁴ Once a defendant enters a knowing and voluntary waiver of counsel, the trial court "is not categorically required to allow a criminal defendant to withdraw the previously entered, valid waiver of counsel at any time he so desires." State v. Leonard , 490 S.W.3d 730, 742 (Mo. App. W.D. 2016) ; State v. Richardson , 304 S.W.3d 280, 289 (Mo. App. S.D. 2010) ; see also State v. Garth , 352 S.W.3d 644, 655-56 (Mo. App. E.D. 2011). A defendant is not allowed to use the right to self-representation to avoid or delay the trial. Richardson , 304 S.W.3d at 289. Whether to allow a defendant to rescind a previously entered waiver of the right to counsel is at the discretion of the trial court. See id.

Here, Howell concedes his waiver of the right to counsel was valid, but he argues that, because there was no evidence that his subsequent request for reappointment of counsel was an attempt to delay the trial, the trial court did not have the discretion to deny his request. He contends the holdings in Richardson and Leonard require that before a trial court may deny the request for reappointment of counsel there must be some objective evidence the defendant was superficially or disingenuously invoking his right to counsel as a tactic to delay trial. See id. at 289-90 (no abuse of discretion in trial court's denial of Richardson's last-minute request to rescind his prior waiver of counsel in part because there was ample probative evidence Richardson had been attempting to delay trial for over a year); see also Leonard , 490 S.W.3d at 742-43 (no abuse of discretion in trial court's denial of defendant's last-minute request to rescind waiver of counsel after court determined request was simply for purpose of delay). Specifically, Howell points to language in the Richardson decision noting the trial court has discretion to deny motions filed by defendant that are "calculated to delay trial, as well as to deny a defendant's assertions that his constitutional rights were violated when such assertions are made simply to hinder his prosecution." He argues this language from Richardson means that when there is no probative evidence the defendant's motion to rescind an earlier waiver of cou...