State v. Raymond, 19710
| Decision Date | 27 March 1997 |
| Docket Number | No. 19710,19710 |
| Citation | 563 N.W.2d 823,1997 SD 59 |
| Parties | STATE of South Dakota, Plaintiff and Appellee, v. Roger Allen RAYMOND, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Mark Barnett, Attorney General, Grant Gormley, Assistant Attorney General, Pierre, for plaintiff and appellee.
James A. Eirinberg, Sioux Falls, for defendant and appellant.
¶1 Roger Raymond was convicted of sexual contact with a minor under the age of 16 (SDCL 22-22-7) and of being a habitual offender; he was sentenced to life in prison without possibility of parole. He appeals the whole of the judgment of conviction and sentence. We affirm.
¶2 This is the second time Raymond has been before this Court on the same charge of sexual contact with a child under the age of 16. We reversed his June 29, 1994 felony conviction and remanded for a new trial, holding that the State denied Raymond a fair trial by introducing inadmissible expert testimony to bolster the credibility of the victim. State v. Raymond (Raymond I), 540 N.W.2d 407 (S.D.1995).
¶3 At the time of the retrial, Raymond continued to be represented by court-appointed counsel Richard Russman. Russman successfully defended Raymond on his appeal to this Court, and had represented Raymond at the habitual offender phase of his first trial. 1
¶4 On April 10, 1996, Raymond requested that Russman be removed as his counsel and that Raymond be allowed to represent himself at the retrial. Raymond informed the trial court of his confidence he could proceed pro se in a competent manner:
Your Honor, I can handle this case just fine. Under the circumstances I know everything about it. I've had a year with it. I know exactly what's going on with it.
The trial court then recommended to Raymond that he at least retain a lawyer to assist him in his pro se defense if he felt the need. Raymond adamantly refused.
make you change your mind?
DEFENDANT: No, sir.
The trial court heard the motion and recessed for 24 hours to take the request under advisement. After reconvening, the trial court advised Raymond in detail of the consequences of serving as his own attorney. When Raymond indicated he still wanted to proceed pro se, the trial court granted the motion, concluding that Raymond had knowingly and intelligently waived his right to counsel.
¶5 The trial court also took a second step of ordering Raymond to undergo a psychological evaluation to determine if he was competent to go to trial. A third attorney, Tony Portra, was appointed to represent Raymond solely on the competency issue. At the competency hearing, the examining psychiatrist, Dr. William Pettit, told the court that in his opinion, Raymond was not mentally ill, had a rational and factual understanding of the charges against him, was able to understand the nature and consequences of the proceedings against him and was able to conduct his own defense. Portra advised the court that Raymond had ordered him not to contest his competency.
¶6 At trial, Raymond conducted his own defense, but elected not to testify. A jury again convicted him on the sexual contact charge, which involved sexual touching of a seven-year-old girl. The trial court found that it was not necessary to retry Raymond on the habitual offender charge, since it was not overturned on appeal. The trial court took judicial notice of the first habitual offender trial and the presentence investigation prepared for that hearing. Raymond was sentenced to life without parole.
¶7 1. Whether Raymond was competent to knowingly, intelligently, and voluntarily waive counsel?
¶8 A criminal defendant's motion to represent himself involves "two mutually exclusive constitutional rights: the right to be represented by an attorney, and the right NOT to be represented by an attorney." Hamilton v. Groose, 28 F.3d 859, 862 (8th Cir.1994), cert. denied, 513 U.S. 1085, 115 S.Ct. 741, 130 L.Ed.2d 643 (1995) (emphasis original). Neither the United States Constitution nor the South Dakota Constitution requires counsel to be forced upon a defendant. State v. Thomlinson, 78 S.D. 235, 237, 100 N.W.2d 121, 122 (1960); see also SDConstArt VI, § 7. Forcing an attorney upon an unwilling defendant not only serves no constitutional purpose, it may also violate the defendant's right to defend himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). "An unwanted counsel 'represents' the defendant only through a tenuous and unacceptable legal fiction." Id. at 821, 95 S.Ct. at 2534, 45 L.Ed.2d at 573.
¶9 Nonetheless, a defendant's right to waive counsel and defend himself has serious consequences, and is not to be taken lightly. This Court previously has held that the accused has a right to defend himself without the aid or assistance of an attorney so long as the accused is mentally competent and not under a legal disability. Thomlinson, 78 S.D. at 238, 100 N.W.2d at 122-23. A defendant is presumed not to have waived his right to counsel unless he can demonstrate to the court that his waiver and request to represent himself is knowing, intelligent, and voluntary. Hamilton, 28 F.3d at 861-62.
¶10 We must examine the particular facts and circumstances of each case in order to determine if there has been a knowing and intelligent waiver of the right to counsel. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938). We consider the background, experience, and conduct of the accused, including whether the defendant is well experienced with the legal system. Id. See also State v. Van Sickle, 411 N.W.2d 665, 667 (S.D.1987).
¶11 Although a defendant does not need to have an attorney's skill and experience to competently and intelligently choose to represent himself, the court should make him aware of the pitfalls of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942). While in some cases there may be a record showing a defendant is aware of the problems of self-representation, " 'an admonition from the trial court is preferred as it eliminates any doubt.' " State v. Cashman, 491 N.W.2d 462, 463 (S.D.1992) (quoting Van Sickle, 411 N.W.2d at 667).
¶12 This Court has suggested the trial court warn defendants of five factors engendered by the Faretta court:
(1) that "presenting a defense is not a simple matter of telling one's story," but requires adherence to various "technical rules" governing the conduct of a trial;
(2) that a lawyer has substantial experience and training in trial procedure and that the prosecution will be represented by an experienced attorney;
(3) that a person unfamiliar with legal procedures may allow the prosecutor an advantage by failing to make objections to inadmissible evidence, may not make effective use of such rights as the voir dire of jurors, and may make tactical decisions that produce unintended consequences;
(4) that a defendant proceeding pro se will not be allowed to complain on appeal about the competency of his representation; and
(5) "that the effectiveness of his defense may well be diminished by his dual role as attorney and accused."
Van Sickle, 411 N.W.2d at 666-67 (quoting R. LaFave, Criminal Procedure § 11.5 (1984)). 2
¶13 In the case at bar, the trial court went through each of the five factors with Raymond. Each time the trial court explained one of the pitfalls of self-representation, Raymond was asked if he understood. Each time Raymond was unequivocal in stating that he did. 3 At the conclusion of the warnings, the trial court asked Raymond:
Trial Court: With all of those explanations, do you still want to proceed, Mr. Raymond, and act as your own counsel?
Raymond: Yes, I do, your Honor.
Trial Court: And you've thought about this for a considerable length of time, have you?
Raymond: Yes, I have, your Honor.
¶14 This Court has held that a waiver is constitutionally acceptable even if the trial court does not issue the Van Sickle warnings when other circumstances indicate the accused was fully aware of the dangers of self-representation. Van Sickle, 411 N.W.2d at 667. Those indicia include the defendant's involvement in previous criminal trials, his representation by counsel before trial, and his explanation of his reasons for proceeding pro se. Id. In the case at bar, Raymond was not inexperienced with the legal system. He had been arrested 32 times, convicted 28 times. He had a prior trial on the very same case and was represented by counsel at that time. Pretrial motions had been filed by counsel at his retrial. He indicated that he did not want Russman to represent him because Russman did not want to make Raymond's prior sexual contact conviction part of his defense and because Russman did not bring up on appeal all the issues Raymond thought he should. The reasons for wishing to proceed pro se were legitimate, even if Raymond's trial strategy may not have been the wisest course of action.
¶15 These additional circumstances, plus the Van Sickle warnings, convince us that Raymond's waiver of counsel was knowing, intelligent, and voluntary. "[W]e must place some faith in the trial court's decision to allow defendant to proceed without counsel; inherent in such decision is the implication that the trial court was satisfied that defendant ... understood the hazards of self-representation." State v. Miller, 248 N.W.2d 61, 63 (S.D.1976).
¶16 On appeal, Raymond for the first time now contends that he was incompetent to waive counsel. We disagree. The trial court on its...
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