Williams v. State

Decision Date17 December 1982
Docket NumberNo. 5738,5738
Citation655 P.2d 273
PartiesGary WILLIAMS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
CourtWyoming Supreme Court

Sylvia Lee Hackl, Wyoming Public Defender Program, Cheyenne, for appellant.

Steven F. Freudenthal, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Allen C. Johnson, Senior Asst. Atty. Gen., and Roger Fransen, Legal Intern, Cheyenne, signed the brief for appellee, with Roger Fransen appearing at oral argument.

Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

BROWN, Justice.

Appellant was convicted of robbery and conspiracy in violation of §§ 6-4-401 and 6-1-203, W.S.1977. Appellant contends that he was denied his constitutional right to represent himself. He also contends that the trial court erred in refusing to hold a hearing during which he could attack the sufficiency of the affidavit supporting a search warrant.

We affirm.

I

The United States Supreme Court has ruled that the Sixth Amendment to the United States Constitution requires that a defendant in state court shall have the right to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Article 1, § 10 of the Wyoming Constitution says: "In all criminal prosecutions the accused shall have the right to defend in person and by counsel * * *."

In this case, appellant first asserted his right to represent himself at his initial appearance on January 18, 1982. The record reveals that the county court judge appointed the public defender's office to represent the appellant, and that the judge told the appellant it would be the appellant's choice whether or not to consult with that attorney. Appellant did consult with an attorney from the public defender's office. The attorney filed at least eight motions before trial, represented the appellant at the preliminary hearing and at the arraignment, and represented appellant at four motion hearings before trial.

At oral argument, counsel for appellant admitted that appellant had probably waived his first assertion of his right to self-representation by his consultation with and continued use of counsel from at least January 26, the date of his preliminary hearing, until April 9, 1982, the date of the last pretrial motion hearing.

Faretta, supra, did not address the question of how a waiver of right to self-representation is to be measured. Generally, the requirement of a knowing and intelligent waiver has been applied only to those rights which the constitution guarantees to a criminal defendant to preserve a fair trial. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The right to self-representation is not one of those rights. The Court in Faretta recognized that the right to proceed pro se, unlike other constitutional guarantees, has as its primary purpose the defendant's freedom of choice, even though such a choice may operate to his detriment. Other cases have held, both before and after Faretta, that the relinquishment of the right of self-representation need not come about through a process measured by the waiver standard applicable to the waiver of right to counsel:

" * * * It is not enough to say that both the right to counsel and the right of self-representation are constitutional rights, and that both arise from the Sixth Amendment. Rather the standards for establishing the relinquishment of constitutional rights vary with the nature of the right under consideration, and the interests protected by the rights. * * *

"We thus do not think that a knowing, voluntary, and intelligent waiver of the right of self-representation is constitutionally mandated. Accord, United States v. White (1970), 139 U.S.App.D.C. 32, 429 F.2d 711, 712; United States ex rel. Maldonado v. Denno, supra, 348 F.2d at 16; United States ex rel. Soto v. United States (3d Cir.1974), 504 F.2d 1339, 1344 n. 16; Tuckson v. United States (D.C. [App.] 1976), 364 A.2d 138, 140; People v. Salazar (1977), 74 Cal.App.3d 875, 888, 141 Cal.Rptr. 753, 761; State v. Smith (Iowa 1974), 215 N.W.2d 225, 226; People v. McIntyre (1974), 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 844, 324 N.E.2d 322, 327 * * *." Russell v. State, 177 Ind.App. 138, 383 N.E.2d 309, 312-313 (1978).

A defendant can waive his right to self-representation through his actions. United States v. Evans, 542 F.2d 805 (10th Cir.1976). The appellant here did waive his first assertion of his right to self-representation by his continued use of counsel. Appellant next asserted his right to represent himself on Friday, April 9, 1982. Trial was scheduled to commence on Monday, April 12, 1982. Appellant's final assertion for self-representation was made the morning of trial before the jury was empaneled.

The Court in Faretta set out some procedural rules to apply when a defendant expresses a desire to represent himself. The Court then stated that a defendant has to unequivocally assert the right to proceed pro se. It reserved to the trial court the option of appointing standby counsel and the option of terminating the defendant's self-representation should the defendant become disruptive during trial. Since the assertion of the right to represent oneself is in effect a waiver of the benefits of the Sixth Amendment right to counsel, the Court ruled that in asserting the right to represent himself, "the accused must 'knowingly and intelligently' forgo those relinquished benefits," citing Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). The Court in Faretta also ruled that technical legal knowledge is not relevant to assessment of a defendant's knowing exercise of the right to defend himself.

According to appellant, the crux of his argument here is that the trial court failed to conduct a proper inquiry to determine if appellant was capable of representing himself, and that the reasons the trial court gave for denying appellant his right to self-representation were not proper under Faretta. The record shows that the trial court based its denial of the request on appellant's lack of technical legal knowledge, which is an incorrect criterion under Faretta. At the hearing on April 12, the trial court stated:

"THE COURT: * * * I would have some question whether or not the defendant would be able to conduct voir dire examination in his own behalf today. For example, Mr. Williams, are you aware of how many peremptory challenges you have?

"MR. WILLIAMS: If I'm correct, I have six, but still nonetheless--

"THE COURT: Do you know what the bases for challenging people in Wyoming for cause are?"

The court also said it was interested in appellant's background in the law.

At the hearing on April 9, 1982, however, the trial court indicated that appellant's request to represent himself was untimely.

"THE COURT: * * * Mr. Tristani has represented him on up until this day, and [it] is simply too late--

"THE DEFENDANT: I didn't ask for him. I requested at the arraignment hearings [initial appearance] if you would take note, that I'll represent myself, and that was turned down. And all the other Motions that you're turning down, I'm just requesting a hearing for them. * * * " Faretta left many important procedural questions, including the question of timeliness of a request to proceed pro se, unanswered:

" * * * Must every defendant be advised of his right to proceed pro se? If so, when must that notice be given? Since the right to assistance of counsel and the right to self-representation are mutually exclusive, how is the waiver of each right to be measured? * * * How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro se? * * * " Faretta v. California, supra, Justice Blackmun dissenting, 422 U.S. 806, 852, 95 S.Ct. 2525, 2549, 45 L.Ed.2d 562, 591.

Other courts have addressed these questions, and have set up certain additional procedural requirements which seem to be generally accepted, in various forms, by many other courts: (1) the accused must be the one to initially request the right; (2) the demand must be timely; and (3) the request to represent oneself must not be used as a delaying tactic.

We hold that these additional procedural requirements are appropriate when a defendant wants to exercise his right to self-representation. We further hold that when a defendant fails to make a timely request to proceed pro se, the trial court has discretion in deciding whether to allow appellant the exercise of the right. This allowance of discretion is based on the rationale that the State has an interest in avoiding disruptions and delays which could occur if an untimely request to proceed pro se is granted. People v. Hall, 87 Cal.App.3d 125, 150 Cal.Rptr. 628 (1978); Hamiel v. State, 92 Wisc.2d 656, 285 N.W.2d 639 (1979); Russell v. State, supra.

State v. Fritz, 21 Wash.App. 354, 585 P.2d 173, 178 (1978), set out rules concerning whether a defendant's request to proceed pro se can be a matter within the trial court's discretion:

"The cases * * * have generally held: (a) if made well before the trial or hearing and unaccompanied by a motion for continuance, the right of self-representation exists as a matter of law; (b) if made as the trial or hearing is about to commence, or shortly before, the existence of the right depends on the facts of the particular case with a measure of discretion reposing in the trial court in the matter; and (c) if made during the trial or hearing, the right to proceed pro se rests largely in the informed discretion of the trial court."

The request for self-representation which appellant made on a Friday preceding the Monday the trial was to start, was a request we deem as not being made within a reasonable time. Because of the intervention of the weekend, appellant's request was in effect made the day before the trial was to begin. In People v. Windham, 19 Cal.3d 121, 137 Cal.Rptr. 8, 560 P.2d 1187 (1977), the defendant during trial made a motion for self-representation....

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