Wake v. Barker
| Decision Date | 11 October 1974 |
| Parties | A. Norrie WAKE, Petitioner, v. Honorable George E. BARKER, Judge, Fayette Circuit Court, Lexington, Kentucky, Respondent. |
| Court | United States State Supreme Court — District of Kentucky |
A. Norrie Wake, Wake & Vest, Lexington, for petitioner.
George E. Barker, pro se.
Patric H. Molloy, Commonwealth's Atty., 22nd Judicial District, John M. Famularo, Asst. Commonwealth's Atty., Lexington, amicus curiae.
CULLEN, Commissioner.
A. Norrie Wake, one of the Public Defenders in Fayette County was appointed by the respondent circuit judge to represent one James Harvey Hendron in his defense under an indictment charging three counts of dwelling-house breaking, one count of taking and operating an automobile without the owner's consent, and one count of being an habitual criminal. The order of appointment prescribed restrictions on Wake's control of the defense, giving Hendron the right to participate in decisions as to trial tactics, with the judge to make the final decision in instances where Wake and Hendron disagreed. The record of the hearing at which the appointment was made shows that Hendron did not want counsel, or at least wanted to be in full charge of his own defense with counsel available to do his bidding.
Both Hendron and Wake expressed dissatisfaction at the hearing with the judge's order, and indicated their desire to obtain a review in this court. However, Wake alone has sought that review, by way of a petition for an order of prohibition against enforcement of the order of appointment of counsel; his petition seeks also that this court establish standards for the direction of the Bench and Bar in cases where defendants in criminal prosecutions desire to proceed pro se.
The defendant, Hendron, is a man with considerable experience before the bar of criminal justice. He presently is serving a 16-year sentence imposed in 1966 on a plea of guilty to charges of malicious shooting and armed robbery. Not long before the arraignment on the current indictment he went through three trials on other charges, culminating in a conviction of housebreaking.
When he appeared for arraignment on the current indictment, Hendron was represented by George Combs, another of the Fayette County Public Defenders. Combs asked leave to withdraw as counsel, on the ground that Hendron 'does not want any public defender to represent him; certainly not me, * * * he wants our help, however * * * he wants to conduct his own defense, act as his own attorney, and use us as he sees fit.' Combs' view was that an accused has the right to make an intelligent waiver of the right to counsel,
The court then examined Hendron, under oath, as to his position in the matter. Hendron said:
When asked by the court whether he felt himself competent to comply with the rules of court concerning the presentation of evidence and the making of proper motions to protect his interests, Hendron replied that he did, and that he felt competent based on his reading law at the penitentiary and his experience in former trials. However, when asked whether he wanted 'to waive any of your rights by reason of your own ignorance of the law,' his answer was, 'No, sir, I do not.' The court then explained to Hendron that Combs' desire to withdraw was based on 'His objection that you want to run the entire show,' and Hendron's reply was, 'That's correct.'
Later in the discussion the judge stated his view that Hendron was not capable, by reason of lack of legal training, to represent himself adequately, and therefore counsel should be appointed for him but with Hendron to have a voice in the decision of trial tactics, the court to make the decision in case of disagreement. Hendron then asked: When the judge indicated he could not fairly permit that to be done, Hendron said: 'Well, I won't come to court with Mr. Combs.'
The judge then stated that he would appoint Wake in place of Combs . Wake, upon arriving in court and being informed of the conditions attached to the representation, demurred to being appointed on those conditions. The judge thereupon suggested that since neither Hendron nor Wake liked the appointment, they or either of them might request an order of prohibition from this court. Hendron stated that he wanted to 'go to the Court of Appeals.' However, as hereinbefore noted, he did not take that step.
Although, as noted, the proceeding in this court has been brought by the public defender rather than by the defendant, the case has been argued from the standpoint of the right of the court to force counsel upon the defendant, rather than the power of the court to compel the public defender to provide a limited form of assistance to the defendant. Under our conception of the issue, however, it makes no difference which standpoint is used. Our analysis convinces us that the issue is two-fold: First, does a defendant in a criminal prosecution, if he makes the choice intelligently, competently, understandingly, and knowingly, have the right to defend himself without counsel being in any way associated with him? Second, may a defendant make a qualified waiver of counsel under which he will receive assistance of counsel only to the specifically limited extent he specifies in his waiver? We believe the record establishes that whatever waiver Hendron made, it was done intelligently, competently, understandingly and knowingly, so we do not have any issue in that regard. However, the record is not clear whether Hendron desired to make an unqualified waiver, rejecting all association of counsel, or wished to have assistance of counsel on a specifically limited basis. That is why we consider that both of the issues above defined are presented.
If the answers to the two issues are in the affirmative, the order of the respondent trial judge was erroneous, because it neither allowed Hendron to proceed without any association of counsel nor supplied him with counsel restricted to the services specified in a limited waiver.
Collateral to the two direct issues is the question of the power of the court to designate standby counsel when there is reasonable ground to believe that the accused in undertaking to conduct his own defense without counsel will refuse to observe the requirements for an orderly trial. That question will be discussed in the latter part of this opinion.
Our conclusion on the first issue is that an accused who has made a valid waiver of counsel has a right, if his waiver so indicates, to proceed to trial without counsel being in any way associated with him. It is true that Section 11 of the Kentucky Constitution...
To continue reading
Request your trial
-
State v. Gethers
... ... State v. Barker, 35 Wash.App. 388, 393-94, 667 P.2d 108 (1983). Fourth, the defendant actively participated in the colloquies involved, which were both informative ... 1342, 1345 (Miss.1977) (state constitution provides that "the accused shall have a right to be heard by himself or counsel, or both"); contra Wake v. Barker, 514 S.W.2d 692 (Ky.1974). Thus, the weight of authority overwhelmingly demonstrates that the defendant's suggested construction of "and" ... ...
-
Taylor v. Simpson
... ... Faretta v. California , 422 U.S. 806, 822 (1975); Wake v. Barker , 514 S.W.2d 692, 696 (Ky. 1974). However, his counsel cautioned against granting Taylor's pro se motion to assist in his defense. The ... ...
-
Grady v. Commonwealth Of Ky.
... ... The Faretta advisory obligations are likewise activated when a defendant invokes his right to hybrid counsel. Wake v. Barker, 514 S.W.2d 692, 697 (Ky.1974). In circumstances involving 325 S.W.3d 342 sole or hybrid pro se representation, the right to be warned of ... ...
-
Parson v. Com.
... ... Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 663, 145 L.Ed.2d 560 (2000) (internal quote omitted). E g., right to a speedy trial, Barker v. Wingo, 407 U.S. 514, 529, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972), Dunaway v. Commonwealth, Ky., 60 S.W.3d 563, 571 (2001); right to a ... California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975), Wake v. Barker, Ky., 514 S.W.2d 692, 695-96 (1974); right to testify on one's own behalf, Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 2709, 97 ... ...