rel08/31/07
Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334)
229-0649), of any typographical or other errors, in order that corrections may be made
before the opinion is printed in Southern Reporter.
ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 2006-2007
_________________________
CR-06-0134
_________________________
Orlando L. Upshaw
v.
State of Alabama
Appeal from Russell Circuit Court
(CC-05-710)
PER CURIAM.
The
appellant,
Orlando
L.
Upshaw,
was
convicted
of
unlawful possession of a controlled substance (cocaine), a
violation of §
13A-12-212(a)(1), Ala. Code 1975.
He was
CR-06-0134
sentenced
as
an
habitual
felony
offender
to
20
years
in
prison.
Upshaw does not challenge the sufficiency of the evidence
to support his conviction; thus, it is not necessary to detail
the facts surrounding his conviction.
Upshaw's only argument
on appeal is that the circuit court erred in allowing him to
represent himself without first advising him of the "pitfalls
of self-representation as required for a knowing and voluntary
waiver of his right to counsel."
(Upshaw's brief at p. 8.)
Upshaw argues that this is a jurisdictional issue that can be
raised at any time.
The record shows that on September 19, 2006, Upshaw's
trial began in the circuit court.
After a jury was sworn and
the first witness had testified, Upshaw moved
allowed to represent himself.
that he be
The following occurred:
"The Court: Mr. Upshaw has made known to the Court
through [his attorney] that he wishes to represent
himself in this matter, and I've directed that [his
attorney] be at the counsel table to assist him at
any time during the course of the trial. Since the
trial has undergone, she has participated in the
trial and has been conferring with her client and is
trying to pass on his requests to the Court and also
interviewing the witnesses on his behalf."
(R. 38-39.)
2
CR-06-0134
The United States Supreme Court in Faretta v. California,
422
U.S.
806
(1975),
held
that
a
defendant
has
a
constitutional right to represent himself in a criminal case. 1
In Tomlin v. State, 601 So. 2d 124 (Ala. 1991), the Alabama
Supreme Court stated the following concerning Faretta:
"In Faretta v. California, 422 U.S. 806, 95
S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court
held that a defendant has a Sixth Amendment right to
represent himself in a criminal case. In order to
conduct
his
own
defense,
the
defendant
must
'knowingly' and 'intelligently' waive his right to
counsel, because in representing himself he is
relinquishing many of the benefits associated with
the right to counsel. Faretta, 422 U.S. at 835, 95
S.Ct. at 2541. The defendant '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."' Faretta, 422 U.S.
at 835, 95 S.Ct. at 2541 (other citations omitted)."
601 So. 2d at 128.
been
incorporated
The requirements set out in Faretta have
into
Rule
6.1(b),
Ala.R.Crim.P.,
which
provides, in pertinent part:
"A defendant may waive his or her right
in writing or on the record, after the
ascertained
that
the
defendant
intelligently, and voluntarily desires to
1
to counsel
court has
knowingly,
forgo that
The Alabama Supreme Court in Ex parte Scudder, 789 So.
2d 837, 841 (Ala. 2001), held that "taken together, §§ 12-22130 and 15-12-22(b) confer upon a defendant in a criminal case
the right to represent himself on appeal if he desires to do
so."
3
CR-06-0134
right.
At the time of accepting a defendant's
waiver of the right to counsel, the court shall
inform the defendant that the waiver may be
withdrawn and counsel appointed or retained at any
stage of the proceedings."
However, contrary to Upshaw's assertions, our review of
the record shows that Upshaw was not allowed to represent
himself
without
granted
a
the
aid
"hybrid"
of
an
form
of
attorney,
but
instead
representation.
was
"Hybrid
representation occurs when an accused represents himself and
also has the assistance of appointed counsel in an advisory
capacity or in conducting certain portions of the trial. See
2
W.
LaFave
(1984)."
&
Lucas
J.
Israel,
v.
State,
Criminal
Procedure,
645
2d
So.
333,
§
11.5(f)
333-34
n.
1
(Ala.Crim.App. 1994).
In Christianson v. State, 601 So. 2d 512 (Ala.Crim.App.
1992), overruled on other grounds by Ex parte Thomas, 659 So.
2d 3 (Ala. 1994), we held that the failure to conduct the
Faretta inquiry in a situation involving hybrid representation
is not error if the defendant's role was limited.
We stated:
"At trial, the appellant, who was represented by
appointed counsel, participated in his own defense.
He asked a question during voir dire of the jury,
conducted supplemental cross-examination of two
witnesses, and made a closing argument. On appeal,
he claims that his participation may have prejudiced
4
CR-06-0134
the jury against him.
Therefore, he
court should have informed him of the
disadvantages of self-representation
Faretta v. California, 422 U.S. 806, 95
45 L. Ed. 2d 562 (1975).
argues, the
dangers and
pursuant to
S. Ct. 2525,
"This issue was never raised below and is not
preserved for appellate review.
Furthermore, the
inquiry mandated by Faretta was not required here.
"While a defendant has a Sixth Amendment right
to be represented by counsel or to represent
himself, Faretta, he does not have the right, under
either the federal or state constitutions, to hybrid
representation, see McKaskle v. Wiggins, 465 U.S.
168, 183, 104 S. Ct. 944, 953, 79 L. Ed. 2d 122
(1984); Holloway v. State, 43 Ala. App. 153, 155,
182 So. 2d 906, 908 (1965), cert. denied, 279 Ala.
688, 182 So. 2d 910 (1966).
"'The
constitutional
rights
to
self-representation and representation by
counsel are viewed as mutually exclusive,
though the trial court may permit hybrid
representation, in its discretion, as "a
matter of grace."'
"2 W. LaFave & J. Israel, Criminal Procedure, §
11.5(f) at 51-52 (1984) (quoting State v. Melson,
638 S.W.2d 342, 359 (Tenn. 1982), cert. denied, 459
U.S. 1137, 103 S. Ct. 770, 74 L. Ed.2d 983 (1983)).
"Professor LaFave observes that '[a]llowing
hybrid representation without an appropriate Faretta
inquiry can create constitutional difficulties.'
Id. at 19 n. 48 (1991 Pocket Part).
Those
difficulties are presented in a case where the
representation
is
nominally
hybrid,
but
the
defendant clearly 'pull[s] the lead oar,' State v.
Howard, 668 S.W.2d 191, 195 (Mo.App. 1984), or where
it is unclear whether the representation is hybrid,
or pro se assisted by standby counsel, Parren v.
5
CR-06-0134
State, 309 Md. 260, 523 A.2d 597 (1987). Neither
situation was present here. The record demonstrates
both that counsel was in charge of the litigation
with the appellant's consent, and that the
appellant's
role
at
trial
was
limited
and
supplementary to his attorney's participation."
601 So. 2d at 519-20.
Upshaw's request to represent himself came in the middle
of the State's case-in-chief. Counsel had already represented
Upshaw for months; she had conducted voir dire and opening
argument;
and
she
had
cross-examined
the
first
State's
witness. Moreover, the record indicates that after the court
allowed Upshaw to participate in his representation, he did
not cross-examine a single State's witness.
cross-examination to defense counsel.
Instead, he left
(R. 45, 52, 63.)
Likewise, counsel -- not Upshaw -- moved for a judgment of
acquittal.
(R. 64-65.)
Counsel also conducted Upshaw's
direct examination, when Upshaw testified in his own behalf,
and presented closing argument.
(R. 96.)
This was not a case
where Upshaw "pulled the lead oar."
Moreover, Upshaw waived his right to self-representation
by failing to assert it in a timely manner.
Though Alabama
has not specifically addressed this issue, other jurisdictions
6
CR-06-0134
agree
that
the
right
may
be
waived
if
not
raised
before
"meaningful trial proceedings." 2
In
United
States
v.
Young,
287
F.3d
1352
(11th
Cir.
2002), the United State Court of Appeals for the Eleventh
Circuit held that the accused's right to self-representation
was waived because it was not asserted until the jury had
already been selected.
The court stated:
"In Faretta v. California, 422 U.S. 806, 817-18,
95 S.Ct. 2525, 2532, 45 L.Ed.2d 562 (1975), the
Supreme Court held that the Sixth Amendment right to
the assistance of counsel includes the right to
represent oneself. In making its pronouncement, the
Court discussed the timeliness of a request to
proceed pro se. The Court twice described the timing
of Faretta's request to represent himself: once that
he requested it 'weeks before trial,' and once that
he requested it 'well before the date of trial.' 422
U.S. at 835, 807, 95 S.Ct. at 2541, 2527. The Court
mentioned the timeliness of the request in both the
opening paragraphs and the breadth with which the
Court announced its decision. Id. at 835-36, 95
S.Ct. at 2541. Although the Court's holding did not
specifically
concern
the
timeliness
of
the
defendant's request to proceed pro se, the Court did
discuss the necessity that the request be timely.
2
In Arthur v. State, 711 So. 2d 1031, 1046 (Ala.Crim.App.
1996), we noted that the right to self-representation may be
waived by electing to act as cocounsel.
The majority of our
cases deal with situations where the defendants have fired
their attorneys, then appear for trial without an attorney and
the court forces them to proceed pro se without conducting a
Faretta colloquy. See our detailed discussion in Harris v.
State, [Ms. CR-04-1617, March 23, 2007] ___ So. 2d ___
(Ala.Crim.App. 2007).
7
CR-06-0134
"In discussing Faretta, other circuits have
considered the timeliness of a defendant's request
for self-representation. See e.g., Buhl v. Cooksey,
233 F.3d 783, 795 (3d Cir. 2000) (holding that a
defendant's request for self-representation was
timely because he first made it several weeks before
trial and then reasserted the request the day before
the trial began); United States v. Walker, 142 F.3d
103, 109 (2d Cir. 1998) (holding that a defendant's
request
for
self-representation
was
untimely
although he made it before empaneling of the jury
because he asserted the request after nineteen days
of voir dire); Savage v. Estelle, 924 F.2d 1459,
1463 n. 7 (9th Cir. 1990) (noting that the
defendant's request for self-representation was
timely because he asserted it before voir dire and
thus, before the jury was empaneled); United States
v. Lawrence, 605 F.2d 1321, 1325 (4th Cir. 1979)
(holding
that
a
defendant's
request
for
self-representation was untimely because he made it
after the jury had been selected and before the
trial court had sworn the jury).
"Our circuit, however, has not addressed the
issue of timeliness of a pro se request in a case
where
a
defendant
asserts
his
right
of
self-representation after the parties have selected
a
jury.
Our
predecessor,
the
Fifth
Circuit,
considered a case where the defendant asserted his
right to proceed pro se before the empaneling of the
jury. Chapman [v. United States], 553 F.2d [886] at
888 [(5th Cir. 1977)]. In discussing the timeliness
of Chapman's request, the court held that 'a demand
for self-representation must be honored as timely if
made before the jury is selected, absent an
affirmative showing that it was a tactic to secure
delay.' Id. at 887. Subsequently, our circuit, in
dicta, stated that '[s]everal courts, including our
predecessor the Fifth Circuit, have held that a
defendant's request to represent himself is timely
if made prior to the jury's being selected or
8
CR-06-0134
sworn.' Horton v. Dugger, 895 F.2d 714, 717 (11th
Cir. 1990). The defendant in Horton asserted his
right to self-representation after the parties had
selected the jury and the trial judge had sworn the
jury. Thus, Horton's interpretation of Chapman's
holding had no bearing on the facts presented by
that case because Horton's request was untimely
since it was asserted after the jury was empaneled
and sworn.
"Following our precedent in Chapman, we conclude
that a defendant's request to proceed pro se is
untimely if not made before the jury is empaneled.
Accordingly, the district court here properly denied
Young's request to proceed pro se since he made his
request after the parties had selected the jury.
'[C]ourts must consider the fundamental nature of
the right and the legitimate concern for the
integrity of the trial process.... If there must be
a point beyond which the defendant forfeits the
unqualified right to defend pro se, that point
should not come before meaningful trial proceedings
have commenced.' Chapman, 553 F.2d at 895. In this
case, the meaningful trial proceedings commenced
when the parties selected the jury; therefore,
Young's
request
for
self-representation
was
untimely."
287 F.3d at 1353-55. 3
3
See also State v. Walters, 641 S.E.2d 758, 762 (N.C. Ct.
App.
2007) ("[A]fter trial has begun with counsel, the
decision whether to allow the defendant to proceed pro se
rests in the sound discretion of the trial court."); Mallory
v. State, 225 Ga.App. 418, 422, 483 S.E.2d 907, 911 (1997) ("A
defendant 'cannot frivolously change his mind in midstream by
asserting his right to self-representation in the middle of
his trial.'"); United States v. Noah, 130 F.3d 490, 497 (1st
Cir. 1997) ("[A]lthough a criminal defendant's right to serve
as his own attorney is absolute if invoked clearly and
distinctly prior to the beginning of his trial, the right of
self-representation becomes qualified once trial is under
9
CR-06-0134
Accordingly, the circuit court did not err in failing to
conduct the Faretta colloquy with Upshaw.
For the foregoing
reasons, Upshaw's conviction and sentence are affirmed.
AFFIRMED.
McMillan, Shaw, Wise, and Welch, JJ., concur; Baschab,
P.J., dissents, with opinion.
BASCHAB, PRESIDING JUDGE, dissenting.
In this case, the majority concludes that the trial court
did not err when it did not conduct a Faretta colloquy with
the appellant.
that
the
The majority bases its decision on the fact
appellant
had
been
granted
a
hybrid
form
of
representation and its determination that "[t]his was not a
case where [the appellant] 'pulled the lead oar.'" ___ So. 2d
at ___.
In reaching this decision, the majority appears to
rely on the timing of the appellant's request to represent
way."); United States v. Lawrence, 605 F.2d 1321, 1325 (4th
Cir. 1979) ("[W]e think it is reasonable, and entirely
compatible with the defendant's constitutional rights, to
require that the right of self-representation be asserted at
some
time
'before
meaningful
trial
proceedings
have
commenced,' and that thereafter its exercise rests within the
sound discretion of the trial court.").
10
CR-06-0134
himself and the level of counsel's participation during the
trial.
The majority states that the appellant did not ask to
represent himself until the middle of his trial.
However,
because several portions of the initial proceedings were not
included in the record, the exact timing of his request is not
clear.
The record indicates that, when the trial court asked
the defense if it was ready to proceed, defense counsel asked
if the attorneys could approach the bench.
off the record discussion took place.
At that time, an
Afterward, the venire
was sworn, the trial court read the indictment to the jury,
the trial court told the jury that the appellant had entered
a plea of not guilty, and the trial court instructed the jury
that the appellant was innocent until proven guilty and that
the burden of proof was on the State.
The subsequent voir
dire proceedings were not included in the record.
However,
after the voir dire proceedings, the following occurred:
"THE COURT:
Any challenges?
"(Bench conference, off record.)
"THE COURT:
jury.
I'm going to strike him off this
"[DEFENSE COUNSEL]:
Okay.
11
CR-06-0134
"THE COURT:
I'll grant your motion for cause.
"[DEFENSE COUNSEL]:
"THE COURT:
Thank you, Your Honor.
Any other challenges?
"[THE PROSECUTOR]:
"THE DEFENDANT:
No.
"[DEFENSE COUNSEL]:
"THE COURT:
Not from the State.
Orlando says no.
If you'll strike a jury.
"[DEFENSE COUNSEL]: Your Honor, do I still need
to do that even though Orlando -"THE COURT: You'll be there to assist him.
"(Counsel and the circuit court
clerk struck the jury without the
presence of the court reporter.)
"(Jury venire present.)
"(Jury impaneled.)
"(Rest
of
dismissed.)"
(R. 6.)
jury
venire
During its initial instructions to the jury, the
following occurred:
"[THE COURT:] Before proceeding with the trial
of the case, it may be helpful to you and to the
Court that you understand the rules of procedure
that will be followed by you and by the Court in
this case. This is a criminal case. The procedure
for the trial of this case, as in criminal cases of
the same character, will be as follows.
12
CR-06-0134
"After
the
Court
finishes
this
opening
instruction to you, we will have opening statements
by the attorneys or by the Defendant.
[The
prosecutor] on behalf of the State will have the
right to make an opening statement outlining the
State's case and then Mr. Upshaw or his attorney
will make an opening statement outlining the
defense. Each side in the opening statement will be
confined to an outline of the case and a statement
of what they expect the evidence to show.
Their
statements are intended to inform you and the Court
about the case, so we will both be familiar with the
theories and contentions of each side from the
beginning.
"....
"Following the close or presentation of evidence
in the case, the attorneys or parties will again
have the privilege of addressing you, and we refer
to this as summation or closing argument.
The
attorneys or the Defendant has the right to discuss
the evidence and all the reasonable inferences to be
drawn therefrom to help you arrive at a just and
true verdict. [The prosecutor] on behalf of the
State will have the right to open the arguments
followed by Mr. Upshaw or by [counsel] for the
Defendant . Then [the prosecutor] will have the
right to a second closing argument, and the State's
second closing argument or right to that is
primarily based upon the fact that the burden of
proof is upon the State of Alabama to prove the
Defendant guilty as charged.
"....
"During the course of the trial, I may rule on
objections by the attorneys or by Mr. Upshaw as to
the admissibility of testimony or other evidence.
It is the duty of an attorney to make such
objections to the offer of evidence which he deems
or she deems illegal or improper. ...
13
CR-06-0134
"That concludes the opening instructions from
the Court. We'll now begin with opening statements
by the attorneys, first by the prosecutor on behalf
of the State, then by Mr. Upshaw or by [counsel]."
(R. 7-12) (emphasis omitted).
Finally, during her opening
statement, defense counsel stated:
"Orlando has asked to represent himself today. I'm
helping Orlando, so that's kind of a curious thing
to have, and so I -- from time to time you might be
hearing from me, you might be hearing from Orlando,
but just keep in mind what's evidence. Of what you
believe actually happened."
(R. 20.)
Although the trial court did not make a statement on the
record regarding the appellant's request to represent himself
until after the first witness had testified, it did not state
that the appellant had just made such a request.
did not
include
any assertion
actually made the request.
as
to
In fact, it
when the
appellant
However, the comments by counsel
and the trial court clearly indicate that the appellant had
already requested the right to represent himself and that
counsel was acting in the capacity of standby counsel or cocounsel at that time.
The majority also focuses on counsel's participation
throughout the various stages of the trial.
14
Although the
CR-06-0134
majority
asserts
that
counsel
conducted
the
voir
dire
examination in this case, the record does not clearly support
that assertion because the voir dire proceedings were not
included in the record.
Also, the record does not indicate
whether counsel participated in the striking of the jury and,
if so, to what extent. Counsel did make the opening statement
in this case.
However, many of her assertions were phrased in
terms of "Orlando's point of view," "Orlando disputes," and
"Orlando does not agree."
(R. 19-21.)
In addition, although counsel cross-examined the State's
witnesses, it is apparent that counsel asked many of those
questions at the appellant's direction.
After the State's
direct examination of the first witness, the trial court asked
counsel if she or the appellant had any questions, and counsel
responded, "Mr. Upshaw wanted me to ask two."
(R.
36-37.)
Also, during her cross-examination of the State's witnesses,
counsel prefaced most of her questions with "Mr. Upshaw wants
me to state" or "Mr. Upshaw wants me to ask."
(R. 37, 52,
63.)
its
Further,
after
the
State
completed
direct
examination of its third witness, counsel stated, "Mr. Upshaw
has got no questions, Your Honor."
15
(R. 52.)
Finally, during
CR-06-0134
a discussion outside the presence of the jury regarding his
decision to testify, the following occurred:
"[THE COURT]: All right, Mr. Upshaw, [counsel],
I've appointed her to assist you in this matter and
you've indicated that you wish to, in effect,
represent yourself in this matter. I think you and
[counsel] have been communicating and she's been
asking the questions that you wanted asked; is that
correct?
"[THE APPELLANT]:
(R. 67.)
was
in
Yes."
Therefore, the record indicates that the appellant
control
of
the
cross-examination
of
the
State's
witnesses.
Counsel
appellant.
did
conduct
However,
at
the
the
direct
examination
conclusion
of
her
of
the
direct
examination, she asked the appellant, "Is there anything else
you wanted to set the record straight on?" and the appellant
indicated that there was not.
(R. 79.)
Further, after the
State finished its cross-examination of the appellant, the
following occurred:
"THE COURT:
Mr. Upshaw, after you have been
asked these questions, do you have any further
questions you want asked of you?
"[THE APPELLANT]:
No, sir.
"THE COURT: Is there anything that's not been
covered that you'd like to cover about this arrest?
16
CR-06-0134
"[THE APPELLANT]:
No, that will be all.
"THE COURT: Are you satisfied with what you've
been able to testify to?
"[THE APPELLANT]:
Yes, sir."
(R. 89.)
Finally, counsel did move for a judgment of acquittal,
cross-examine the State's rebuttal witness, call the appellant
in response to the State's rebuttal witness, and make closing
arguments.
However, after counsel completed her closing
argument, the trial court asked the appellant if there was
anything that had not been covered in counsel's closing
argument that he felt should have been covered.
Contrary to the majority's finding that "[t]his was not
a case where [the appellant] 'pulled the lead oar,'" it is
obvious that counsel was acting at the appellant's direction
throughout the trial and that the trial court deferred to the
appellant's decisions during the trial.
a
case
of
nominally
hybrid
Therefore, this was
representation
in
which
the
appellant clearly was in ultimate control of his case.
Moreover, the appellant does not raise any claim that he
was not allowed to represent himself.
Rather, the only claim
he raises on appeal is whether the trial court erred when it
17
CR-06-0134
did not advise him "of the pitfalls of self-representation as
required for a knowing and voluntary waiver of his right to
counsel."
(Appellant's brief at p. 8.)
Consequently, the
majority's discussion regarding whether the appellant waived
the right to self-representation is not relevant to this case.
Because the record in this case does not indicate that
the trial court ever advised the appellant about the dangers
and disadvantages of self-representation and that he had the
right to withdraw any waiver of the right to counsel at any
time during the proceedings, we should reverse the trial
court's judgment and remand this case for a new trial.
See
Farid v. State, 720 So. 2d 998 (Ala. Crim. App. 1998);
Hairgrove v. State, 680 So. 2d 946 (Ala. Crim. App. 1995);
Leonard v. State, 484 So. 2d 1185 (Ala. Crim. App. 1985).
Therefore, I respectfully dissent.
18
