Wallace v. State, 2--775A169

• Decision Date: 28 March 1977
• Docket Number: No. 2--775A169,2--775A169
• Citation: 172 Ind.App. 535,361 N.E.2d 159
• Parties: Michael L. WALLACE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 159

361 N.E.2d 159

172 Ind.App. 535

Michael L. WALLACE, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2--775A169.

Court of Appeals of Indiana, Second District.

March 28, 1977.

Rehearing Denied May 19, 1977.

[172 Ind.App. 536]

Richard L. Swartz, Reading & Swartz, Wabash, for appellant

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for appellee.

BUCHANAN, Presiding Judge.

CASE SUMMARY

Defendant-Appellant, Michael L. Wallace (Wallace) appeals from convictions of Theft and Conspiracy to Commit a Felony, to-wit: Theft, claiming that the trial court erred in allowing him to represent himself.

We reverse.

FACTS

Wallace was charged June 7, 1974, with Theft and Conspiracy to Commit a Felony. At a proceeding two weeks prior to trial, Wallace requested an attorney. He was declared indigent and an attorney was appointed by the court. No record [172 Ind.App. 537] was kept of this proceeding. The trial commenced November 19, 1974.

At trial, after the first witness had been called, the following exchange took place:

DEFENDANT: I would like to represent myself in the case. Would it be all right with the Court if Mr. Murphy still can be present and sit beside me?

THE COURT: Well, now, you're not going to go both ways on this, Mr. Wallace. You asked for an attorney, I appointed an attorney for you, he's here to represent you, and you can't go both ways on it.

DEFENDANT: I'll represent myself, then, Your Honor.

THE COURT: All right.

MR. MURPHY: Wait a minute, now. Do you want me to advise you as to . . .

THE COURT: No, you won't advise him. If he has you as his attorney, you're going to be his attorney. If he's going to represent himself, he will represent himself.

MR. MURPHY: Wait a minute. Do you understand what you are doing?

DEFENDANT: Yes, I do.

MR. MURPHY: Do you want me to stand by and advise you? I do it.

THE COURT: No, you are not going to stand by and advise him about anything.

He's either going to have an attorney or he's not going to have an attorney

DEFENDANT: I'll represent myself.

THE COURT: All right.

Wallace's attorney was excused, and Wallace acted as his own attorney throughout the trial.

No further discussion took place between the Court and Wallace as to his right to counsel and the consequences of the choice he was making.

[172 Ind.App. 538] The jury returned a verdict of guilty on both counts.

ISSUE

Only one issue is presented for our review.

Did Wallace knowingly and intelligently waive his right to counsel?

Wallace contends he did not knowingly, intelligently, and competently waive his right to be represented by counsel.

The State counters that Wallace knew he had a right to an attorney, but that he chose to assert his right to defend himself.

DECISION

CONCLUSION--The record indicates Wallace did not knowingly and intelligently waive his right to counsel.

The Sixth Amendment to the U.S. Constitution ¹ embodies two apparently antithetical Constitutional rights. A criminal Defendant has an absolute right to the assistance of counsel at trial. Argersinger v. Hamlin (1972), 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530; Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Fitzgerald v. State (1970), 254 Ind. 39, 257 N.E.2d 305; State v. Minton (1955), 234 Ind. 578, 130 N.E.2d 226. He also has a right to dispense with the aid of counsel and proceed pro se. Faretta v. California (1975), 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562; Placencia v. State (1971), 256 Ind. 314, 268 N.E.2d 613.

In order to assert one of these rights, a Defendant must necessarily relinquish the other. The facts of this case squarely present the question of what constitutes a valid waiver of the right to counsel by a Defendant who chooses to conduct his own defense. Thus we are required to decide whether the record before us shows Wallace, knowing he had a right to have an attorney appointed for him, effectively waived his right to counsel.

A criminal trial, like every trial, is an adversary proceeding which is governed by complicated rules designed to protect both the rights of the accused and the interests of the State. Justice Sutherland described the compelling need of an accused for the assistance of counsel in Powell v. Alabama (1932), 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 ² Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.

While an accused has a constitutionally protected right to counsel, he also has a companion right, seemingly inconsistent, to represent himself without the assistance of counsel. Counsel will not be forced on an unwilling defendant--freedom of choice in this regard is also protected by the Sixth Amendment. Faretta v. California, supra. ³

So an accused has a constitutional right to either avail himself of counsel or represent himself. But if he chooses to represent himself, waiver of the right to counsel must be shown to have been made voluntarily, knowingly, and intelligently.

The trial judge must satisfy himself that the defendant understands the possible consequences of his decision:

It is a long and well established principle that alleged waivers of such fundamental constitutional rights as the right to counsel and against self-incrimination will only be upheld after careful inquiry into their basis. Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Brady v. U.S. (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747. The State bears the burden of showing that the accused was informed of his rights in clear and unambiguous language. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972). If an accused decides to waive these rights he must be sufficiently aware of the consequences of what he is doing and he must make his decision voluntarily, knowingly and intelligently. Miranda v. Arizona, supra; Nacoff v. State (1971), 256 Ind. 97, 267 N.E.2d 165; Mims v. State (1970), 255 Ind. 37, 262 N.E.2d 638. Lewis v. State (1972), 259 Ind. 431, 435, 288 N.E.2d 138, 140 (emphasis added).

Caution must be used in approaching the waiver of fundamental constitutional rights:

(I)n the case at bar we are dealing with no ordinary right but rather with a constitutional right of fundamental importance--the right to the assistance of counsel. Constitutional rights have occupied a sacred position in our legal system and rightfully so. The concepts, principles and rights embodied in both the United States and Indiana Constitutions command the most sensitive protection the courts can provide. In fact, protection of all constitutional rights is our most solemn duty.

Recognizing this duty, both this court and the U.S. Supreme Court have insisted that constitutional rights may not be waived except by the appellant himself, knowingly, intelligently and understandingly. A heavy burden is borne by the state whenever it is claimed or alleged that a constitutional right of a defendant has been waived. A silent record is not enough. Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Carnley v. Cochran (1962), 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; State v. Minton, supra.

Fitzgerald v. State, supra, 254 Ind. at 46, 47, 257 N.E.2d 305, at 311. (emphasis added).

And again in Grubbs v. State (1970), 255 Ind. 411, 418, 265 N.E.2d 40, 44:

(W)e point out that a trial court must approach those stages of a proceeding at which fundamental constitutional rights attach with great concern and caution and with an appreciation for the need to make a clear record of what takes place. This Court cannot infer a voluntary and intelligent waiver of such a right from a silent record. Johnson v. Zerbst (1938), 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. In stating the responsibility of the trial judge in these circumstances the Supreme Court of the United States said:

'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 approapriate for that determination to appear upon the record.' 304 U.S. at 465, 58 S.Ct. at 1023. (emphasis added).

So, whether there is a proper waiver 'should be clearly determined by the trial court.' The defendant must be made aware of the consequences of the choice he is making. As the Supreme Court put it in Faretta:

. . . he should be...