State v. Wilson, s. 16884

• Decision Date: 03 October 1991
• Docket Number: 17371,Nos. 16884,s. 16884
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Lance WILSON, Defendant-Appellant. Lance WILSON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 301

816 S.W.2d 301

STATE of Missouri, Plaintiff-Respondent, v. Lance WILSON, Defendant-Appellant.

Lance WILSON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 16884, 17371.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 3, 1991.

Mary K. Anderson, Columbia, for defendant-appellant and movant-appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent and respondent-respondent.

SHRUM, Presiding Judge.

The defendant Lance Wilson was convicted by a jury of stealing in violation of § 570.030, RSMo 1986. Because he was a prior offender, the trial court imposed the sentence, a seven-year term of imprisonment. He appeals from that judgment and sentence in case number 16884. In case number 17371, the defendant appeals from the judgment denying him the postconviction relief he sought pursuant to Rule 29.15. This court consolidated the two appeals.

DIRECT APPEAL ISSUE

The issue we must decide in No. 16884 is whether the trial court committed plain error affecting the defendant's substantial rights when it proceeded to trial although the defendant did not have an attorney. Specifically, in his single point relied on, the defendant contends (1) that the trial court failed to determine whether he had knowingly and intelligently waived his right to counsel, (2) the record clearly shows that he did not knowingly and intelligently waive his right to counsel, and (3) the record reveals he was unable to represent himself competently.

Because we have determined that there is merit to the defendant's single point, we reverse and remand for a new trial. By reason of our decision in No. 16684, there is no judgment to consider in No. 17371 and that appeal is dismissed.

FACTS

On January 2, 1987, the defendant took a Dodge Ram Charger from the used car lot where he was employed without the permission of the truck's owner, Lance Cromer. The defendant and two other men, Harvey Hill and Donald Ivey, spent the evening riding around in the stolen vehicle. During that time, the defendant asked Hill to take the tags from the truck. Later, in the early morning hours of January 3, the defendant asked Hill to wreck the truck so he (the defendant) could collect the insurance proceeds. At yet a later time, the defendant admitted to Hill that the truck was stolen.

Following an investigation of the theft by officers, the defendant was arrested and charged. Both Hill and Ivey testified to the facts summarized above. Additional facts pertinent to the defendant's claim of error are recited later in this opinion.

PRELIMINARY INQUIRY:

FAILURE TO PRESERVE ERROR FOR REVIEW

The defendant did not file a new trial motion. Accordingly, his allegation of trial court error was not preserved for our review. Rule 29.11(d). He requests, however, that his point on appeal be reviewed under the plain error standard of Rule 29.12(b) which states, "Plain errors affecting substantial rights may be considered in the discretion of the court when the court finds that manifest injustice or miscarriage of justice has resulted therefrom."

It is difficult to discern whether plain error exists in a given situation. State v. Smith, 595 S.W.2d 764, 765 (Mo.App.1980). " '[P]lain error' is such a highly elusive term that it does not readily lend itself to being succinctly defined or isolated by the use of judicial platitudes." Id.

In evaluating ... plain error, special attention should be given to the nature of the error which has occurred. Some errors may be disregarded even though they constitute constitutional deprivations, provided that they "are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction." Chapman v. State of California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705 (1967). On the other hand, "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error."

Smith, 595 S.W.2d at 766.

It was settled by Gideon v. Wainwright, 372 U.S. 335, 343-44, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 805, 93 A.L.R.2d 733, 742 (1963), that the states are obliged by the due process requirements of the 14th Amendment to the U.S. Constitution to assure that in all criminal prosecutions the accused shall have the assistance of counsel for his defense. "The Sixth and Fourteenth Amendments 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." State v. Edwards, 592 S.W.2d 308, 310 (Mo.App.1979).

The Supreme Court, in Chapman, 386 U.S. at 21, 87 S.Ct. at 826, 17 L.Ed.2d at 709 n. 4, specifically mentioned the 6th amendment right to counsel as one of the constitutional rights so basic to a fair trial that its infraction can never be treated as harmless error. Any doubt about the application of harmless error analysis to invalid waivers of counsel appears to have been laid to rest in Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), as follows:

Chapman recognizes that the right to counsel is "so basic to a fair trial that [its] infraction can never be treated as harmless error." (Citation omitted.) And more recently, in Satterwhite v. Texas, 486 U.S. 249, 256, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284 (1988), we stated Penson, 488 U.S. at 88, 109 S.Ct. at 354, 102 L.Ed.2d at 313-14. Based on Chapman and Penson, and from reading the record of the case before us, we conclude that we will review the defendant's allegation of trial court error under the plain error rule. ¹

that a pervasive denial of counsel casts such doubt on the fairness of the trial process, that it can never be considered harmless error.

ANALYSIS AND DECISION

The right of an accused to counsel has two aspects: the right to retain counsel and the right, in certain situations, to have counsel appointed. State v. Jones, 466 S.W.2d 688 (Mo.1971). However, the right to private counsel is limited by the state's right to proceed to trial after the accused has been afforded a fair opportunity to engage his own counsel and adequate time to prepare his defense; the right to counsel does not include the right to defeat or impede the orderly processes of the administration of justice. State v. Crider, 451 S.W.2d 825, 828 (Mo.1970); State v. Wright, 650 S.W.2d 714, 716 (Mo.App.1983). A persistent and ongoing refusal by an accused to hire counsel after being repeatedly told that he did not qualify for appointed counsel can be the functional equivalent of an express waiver of counsel. State v. Yardley, 637 S.W.2d 293, 295-96 (Mo.App.1982).

Here, the defendant initially retained private counsel who later withdrew for reasons not revealed by the record. The public defender then entered his appearance but filed a motion to withdraw on February 15, 1989. The record is replete with evidence that, beginning in the fall of 1988 and continuing through April 1989, the defendant was repeatedly advised by the public defender and by the trial court that he did not qualify for the services of the public defender and would have to hire his own lawyer. During a lengthy discussion in court in April 1989, it was explained to the defendant that his case was being continued at that time for the sole purpose of enabling him to retain counsel. Despite the many warnings and exhortations to the defendant that he would have to hire his own lawyer, he had not hired a lawyer as of July 25, 1989, his trial date. Additionally, the public defender's motion to withdraw had not been acted upon as of that date.

Upon opening of court on July 25, the following transpired:

THE COURT: Mr. Wilson, do you have an attorney representing you?

THE DEFENDANT: Dean Price [the public defender].

The court reminded the defendant that the public defender had filed a motion to withdraw because the defendant had posted bond in an amount that disqualified him for the public defender's assistance. The court then asked the defendant if he denied that the public defender "had told you numerous times that he would not be representing you on this matter"?

THE DEFENDANT: The last time we talked he said he was probably going to have to represent me.

Upon further questioning, the defendant admitted he had been advised repeatedly that he did not qualify for the public defender's services, but he asserted he "just didn't make the money" to hire his own lawyer. Then the following exchange occurred:

THE COURT: [I]f you do not have an attorney that you've hired to represent you, then you are going to have to proceed on your own. Do you understand that?

THE DEFENDANT: Not really.

At that point, the trial court gave the defendant time to speak with the public defender. After that conversation, the following transpired:

THE COURT: Mr. Wilson, have you had an opportunity now to talk with Mr. Price?

THE DEFENDANT: Long session or--

THE COURT: Just now.

THE DEFENDANT: Yeah.

Without further inquiry, advice, or comment to the defendant, the trial court sustained the public defender's motion to withdraw.

The prosecutor then questioned the public defender, and the court questioned the defendant. Inquiries to the public defender focused exclusively on the fact that the defendant had been advised repeatedly that he did not qualify for the public defender's services and would have to hire his own lawyer. The court's questions to the defendant concerned his knowledge that he did not qualify for the services of the public defender, his failed attempts to hire private counsel, and his ability to post bond. At the conclusion of its questioning of the defendant, the court stated:

THE COURT: ... Mr. Wilson, the Court finds that you have had sufficient time to contact an attorney on your own to hire one if that was your desire.

You were advised that you did not...