Teske v. State

• Decision Date: 14 April 1987
• Docket Number: 6 Div. 217
• Citation: 507 So.2d 569
• Parties: Charles TESKE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 569

507 So.2d 569

Charles TESKE v. STATE.

6 Div. 217.

Court of Criminal Appeals of Alabama.

April 14, 1987.

Joseph W. Hudson, Jasper, for appellant.

Don Siegelman, Atty. Gen., and James F. Hampton and J. Anthony McLain, Special Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

The appellant, Charles Teske, was indicted, by separate indictments, for the offense of assault in the first degree, as proscribed by § 13A-6-20, Code of Alabama 1975, with his elderly parents being the victims. He was convicted by a jury and sentenced to twenty years' imprisonment for each offense, with the sentences to run concurrently.

The only issue we find necessary to address is whether the record supports the conclusion that Teske knowingly and intelligently waived his Sixth Amendment right to representation by counsel at trial, as required by the United States Constitution. See, e.g., Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975). In regard to this issue, the record reflects the following:

"BY THE COURT: Mr. Teske, I just want to reiterate that you have the right to have a lawyer represent you. Do you still not want a lawyer to represent you?

"BY THE DEFENDANT: That's right.

"BY THE COURT: I have appointed Mr. Joe Hudson to be here to serve as an advisor but not your lawyer. If he is needed in any way you may ask him a question but he is not here to defend you in any way. Do you understand that?

"BY THE DEFENDANT: Yes, sir, I understand fully."

The record also established the following: Teske represented himself at arraignment. The judgment entry for arraignment reveals that Teske was advised by the trial court of the "nature, substance, and consequences" of the indictment. The court further advised Teske, among other things,

"of his right to a speedy, public trial on the issues by an impartial jury which would determine his guilt or innocence; of his right to compulsory process of witnesses in his behalf; of his right to confrontation ...; of his right to be heard by himself and counsel; of his right to testify in the cause or not testify ...; of his right to waive all of the above and plead guilty to the indictment ...; of his right, if convicted, to appeal to a higher court; [and] of his right not to be deprived of life, liberty or property without due process of law."

The judgment entry further shows that the court adjudged Teske as "being capable of making reasonably intelligent, voluntary and conscious decisions and of exercising freedom of choices," and found that Teske "is prepared to exercise such alternatives as are legally his." On August 22, 1986, after the jury had rendered its verdict on August 19, Teske was asked by the trial court if he wanted an attorney to represent him on appeal. Teske replied affirmatively, so the court appointed standby counsel, Mr. Hudson. The appointment order showed that Mr. Hudson was appointed on August 22 for sentencing and appeal. Three days later, at sentencing, Mr. Hudson was present.

From the colloquy quoted above, it appears that Teske affirmatively sought to exercise his right to proceed pro se, which the Faretta Court recognized as being guaranteed by the Sixth Amendment, and to thereby waive his constitutional right to counsel. "It is undeniable that the State cannot force a lawyer upon a defendant in a criminal trial, where the defendant has voluntarily and intelligently elected to proceed without counsel." Clark v. City of Mobile, 357 So.2d 675, 676 (Ala.Cr.App.), cert. denied, 357 So.2d 680 (Ala.1978) (citing Faretta ). However, the following principles must be observed:

"It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

"....

"The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused--whose life or liberty is at stake--is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record."

Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) (footnotes omitted, emphasis added). These principles are equally applicable to asserted waivers of the right to counsel in state criminal proceedings. Carnley v. Cochran, 369 U.S. 506, 515, 82 S.Ct. 884, 889, 8 L.Ed.2d 70 (1962). In the later case of Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541, wherein the Court held that an accused does have a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so, the Court observed the following:

"When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S., at 464-465 . Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724 [68 S.Ct. 316, 323, 92 L.Ed. 309 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware 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.' Adams v. United States ex rel. McCann, 317 U.S. , 279 [63 S.Ct. 236, 242, 87 L.Ed. 268 [1942]."

While some courts interpret these principles to require that a trial court expressly admonish a defendant of the dangers and pitfalls of self-representation, others construe these principles to require only that it appear from the record as a whole that a defendant's waiver of counsel and decision to represent himself were knowing and intelligent and these other courts held that the focus of the inquiry is not on the information revealed by the court but on the knowledge of the accused, as shown by the circumstances surrounding the waiver. 2 W. LaFave and J. Israel, Criminal Procedure §§ 11.3(b), 11.5(c) (1984) See also People v. Longwith, 125 Cal.App.3d 400, 408, 178 Cal.Rptr. 136, 140 (1981) (wherein the court recognized that the modern trend is "not to mandate the giving of some specific warning prior to allowing the defendant to waive his right to counsel," but "to require that whenever a defendant insists on proceeding without counsel the trial court does whatever is necessary relative to the circumstances to determine that the defendant made a knowing and intelligent wavier"). The Alabama courts appear to follow this latter interpretation. See e.g., King v. State, 55 Ala.App....