State v. Thompson

• Citation: 584 S.E.2d 131,355 S.C. 255
• Decision Date: 07 July 2003
• Docket Number: No. 3659.,3659.
• Parties: The STATE, Respondent, v. Paul THOMPSON, Appellant.
• Court: Court of Appeals of South Carolina

355 S.C. 255

584 S.E.2d 131

The STATE, Respondent, v. Paul THOMPSON, Appellant.

No. 3659.

Court of Appeals of South Carolina.

Submitted April 18, 2003.

Decided July 7, 2003.

Senior Assistant Appellate Defender Wanda H. Haile, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh and Assistant Deputy Attorney General Charles H. Richardson, all of Columbia; and Solicitor Jay E. Hodge, Jr., of Darlington, for Respondent.

ANDERSON, J.:

Paul Thompson was tried in absentia and without counsel. He was convicted of discharging a firearm into a dwelling and malicious injury to personal property over $1000 but less than $5000. The trial judge sentenced him to five years on each count to run concurrently. We reverse and remand.¹

FACTS/PROCEDURAL BACKGROUND

Vanessa Pearson was at home with her adult daughter, Najwa, on October 30, 1999 when a man named Derrick came to her door and asked for "Junior." Pearson told him that no one by the name of "Junior" lived there. Thirty minutes later he came to her door again and asked for "Junior." She reiterated to him that no one by the name of "Junior" lived there. Pearson testified that Derrick, Paul Thompson, and Michael Graham then started shooting at her car and into her house. The damage to her car was about $4000. Pearson identified Peggy Wright as sitting in the backseat of the vehicle that the men drove during the occurrence.

Graham, Wright, and Thompson were tried together for discharging a firearm into a dwelling and malicious injury to personal property over $1000 but less than $5000. The same counsel represented Graham and Wright. Thompson was not present nor did he have counsel present. The judge told the bailiff to call Thompson's name three times at the courthouse door before the jury selection began. After Thompson did not respond, he was tried in his absence. Graham and Wright presented alibi evidence, which resulted in their acquittals. Thompson was found guilty as charged.

A sealed sentence was given as required by law. The sealed sentence is NOT opened until the defendant is arrested and before the court. After his arrest, Thompson was brought before the court for the opening of the sealed sentences. Pursuant to State v. Smith, 276 S.C. 494, 280 S.E.2d 200 (1981), the circuit judge opening the sealed sentence is under the law the sentencing judge. Exercising his discretion, the judge sentenced Thompson to five years on each count, concurrently.

At sentencing, Thompson's attorney professed that Thompson appeared at four or five roll calls after his arrest on November 15, 1999. During that time, Thompson requested through the Clerk of Court representation from the Public Defender's Office. Thompson contends he was told he did not meet the cut-off amount of money to qualify for a public defender. He explained to them that he had child support arrearage payments that virtually consumed his salary and offered to produce documentation. According to Thompson's attorney, no one would listen to him regarding his child support payments. The court refuted Thompson's assertion, explicating that if Thompson had said he did not have an attorney, one would have been appointed for him.

A Bench Warrant was issued for Thompson on September 11, 2000 and another was issued on May 17, 2001. During September 2001, Thompson went to a rehabilitation facility in Maryland for cocaine and alcohol addiction. He left the facility on November 19, 2001. He went to High Point, North Carolina and then to his uncle's house in Bennettsville. Thompson was tried on November 28, 2001. Thompson's brother testified that the family was only given fourteen hours notice of trial.

The judge determined that a lawyer would have been appointed for him if he had presented himself at trial:

THE COURT: Well, I can say here for the record if he would have been here like the other two defendants were, didn't have a lawyer, we would have appointed one for him.

[THOMPSON'S COUNSEL]: Yes, sir, Your Honor.

THE COURT: But you can't appoint one for him if he runs and doesn't even come to court.

LAW/ANALYSIS

Thompson argues the judge erred in denying his motion for a new trial because he was denied the right to counsel at trial.

I. RIGHT TO COUNSEL

It is well established that a defendant may be tried in his absence. Rule 16, SCRCrimP ("Except in cases wherein capital punishment is a permissible sentence, a person indicted for misdemeanors and/or felonies may voluntarily waive his right to be present and may be tried in his absence upon a finding by the court that such person has received notice of his right to be present and that a warning was given that the trial would proceed in his absence upon a failure to attend the court.").² However, to try a defendant without counsel is a completely different matter. Pennsylvania v. Ford, 715 A.2d 1141, 1143 (1998) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)).

"The Sixth and Fourteenth Amendments of our 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, 2527, 45 L.Ed.2d 562, 566 (1975); accord Gideon v. Wainwright, 372 U.S. 335, 339-40, 83 S.Ct. 792, 794, 9 L.Ed.2d 799, 802-03 (1963). Moreover, an indigent criminal defendant may request the court to appoint an attorney to represent him. Gideon, 372 U.S. at 344, 83 S.Ct. at 796-97, 9 L.Ed.2d at 802; see Scott v. Illinois, 440 U.S. 367, 367, 99 S.Ct. 1158, 1159, 59 L.Ed.2d 383, 389 (1979) ("The Sixth and Fourteenth Amendments require that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense ...").

"Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have." United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657, 664 (1984). The erroneous deprivation of a defendant's fundamental right to the assistance of counsel is per se reversible error. State v. Boykin, 324 S.C. 552, 555, 478 S.E.2d 689, 690 (Ct.App.1996) (citing Chapman v. California, 386 U.S. 18, 23 n. 8, 87 S.Ct. 824, 828 n. 8, 17 L.Ed.2d 705 (1967)). "Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice." McKnight v. State, 320 S.C. 356, 358, 465 S.E.2d 352, 353 (1995) (quoting Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674, 696 (1984)).

II. RELINQUISHMENT OF RIGHT TO COUNSEL

A defendant may surrender his right to counsel through (1) waiver by affirmative, verbal request; (2) waiver by conduct; and (3) forfeiture. State v. Boykin, 324 S.C. 552, 556, 478 S.E.2d 689, 690 (Ct.App.1996).

A. Waiver

A defendant may waive his Sixth Amendment right to counsel. A waiver is an intentional and voluntary relinquishment of a known right. United States v. Goldberg, 67 F.3d 1092, 1099 (3d Cir.1995); Maxwell v. Genez, 350 S.C. 563, 571, 567 S.E.2d 496, 500 (Ct.App.2002). The courts indulge every reasonable presumption against waiver of fundamental constitutional rights, and do not presume acquiescence in the loss of fundamental rights. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1938); Pitts v. North Carolina, 395 F.2d 182, 188 (4th Cir.1968).

1. Waiver by Affirmative, Verbal Request

Waiver is most commonly understood as an affirmative, verbal request. United States v. Goldberg, 67 F.3d 1092, 1099 (3d Cir.1995); State v. Boykin, 324 S.C. 552, 556, 478 S.E.2d 689, 690 (Ct.App.1996). To effectuate a valid waiver of the right to counsel, the two-pronged Faretta test must be met in which the accused is (1) advised of his right to counsel and (2) adequately warned of the dangers of selfrepresentation. Prince v. State, 301 S.C. 422, 423-24, 392 S.E.2d 462, 463 (1990) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). The trial judge must determine whether there is a knowing and intelligent waiver by the defendant. State v. Dixon, 269 S.C. 107, 236 S.E.2d 419 (1977) (citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938)). If the trial judge fails to address the disadvantages of appearing pro se, as required by the second prong of Faretta, "this Court will look to the record to determine whether petitioner had sufficient background or was apprised of his rights by some other source." Prince, 301 S.C. at 424,392 S.E.2d at 463; accord Wroten v. State, 301 S.C. 293, 294, 391 S.E.2d 575, 576 (1990). While a specific inquiry by the trial judge expressly addressing the disadvantages of a pro se defense is preferred, the ultimate test is not the trial judge's advice but rather the defendant's understanding. Gardner v. State, 351 S.C. 407, 411-12, 570 S.E.2d 184, 186 (2002); Wroten, 301 S.C. at 294,391 S.E.2d at 576. If the record demonstrates the defendant's decision to represent himself was made with an understanding of the risks of self-representation, the requirements of a voluntary waiver will be satisfied. Id.

Pellucidly by his absence, Thompson did not make an affirmative, verbal request to waive counsel.

2. Waiver by Conduct

A defendant may waive his right to counsel through his conduct. United States v. Goldberg, 67 F.3d 1092, 1100 (3d Cir.1995); State v. Jacobs, 271 S.C. 126, 128, 245 S.E.2d 606, 608 (1978); State v. Boykin, 324 S.C. 552, 556, 478 S.E.2d 689, 690 (Ct.App.1996). Most courts have held that the defendant must first be warned that his misconduct will thereafter be treated as a waiver. Boykin, 324 S.C. at 556, 478 S.E.2d at 691. "[T]o the extent that the defendant's actions are examined under the doctrine of `...