Jethro Wallace, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2005-KA-01074-COA
JETHRO WALLACE, JR. A/K/A JETHRO
WALLACE
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
5/13/2005
HON. LARRY EUGENE ROBERTS
CLARKE COUNTY CIRCUIT COURT
JAMES N. POTUK
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
BILBO MITCHELL
CRIMINAL - FELONY
CONVICTED OF ROBBERY AS A HABITUAL
OFFENDER AND SENTENCED TO SERVE A
TERM OF FIFTEEN YEARS IN THE CUSTODY
OF THE MDOC WITHOUT REDUCTION OR
SUSPENSION AND WITHOUT ELIGIBILITY FOR
PROBATION, PAROLE, OR EARNED TIME
CREDIT AND FINED $10,000.
AFFIRMED - 6/5/2007
BEFORE MYERS, P.J., CHANDLER AND GRIFFIS, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Jethro Wallace, Jr. was convicted of robbery, in violation of Mississippi Code Annotated 97-
3-73 (Rev. 2006), in the Circuit Court of Clarke County. Following his conviction, Wallace was
sentenced as a habitual offender to serve a term of fifteen years in the custody of the Mississippi
Department of Corrections without the possibility of reduction, suspension, probation or parole and
fined $10,000. He now seeks a new trial, raising one issue for our review, which we have recast for
clarity:
WHETHER THE TRIAL COURT ERRED IN ALLOWING WALLACE
TO REPRESENT HIMSELF AT HIS TRIAL?
Finding no error, we affirm.
DISCUSSION
¶2.
Wallace first asserted that he wished to represent himself on the first day of his trial. The
matter was discussed between the trial judge and Wallace in chambers, and the trial judge ultimately
found Wallace to be mentally capable of “freely, voluntarily, and intelligently” waiving his right to
counsel. Wallace’s appointed counsel was, however, ordered to remain present at the trial and serve
as a standby. The record shows that the appointed attorney, on several occasions, interceded for
Wallace during the trial. Following his conviction, Wallace filed a pro se motion for a new trial,
asserting several grounds, including that “he had no lawyer to help him.” The lower court denied
his motion for a new trial.
¶3.
Wallace now contends that the trial judge erred in failing to ensure that Wallace was
competent to knowingly and understandingly waive his constitutional right of representation by an
attorney. In support of his proposition, Wallace points to the fact that the trial judge did not order
a competency hearing before allowing him to represent himself. The State argues that the trial judge
was not required to order a competency hearing before Wallace waived his right to counsel. Further,
the State counters Wallace’s argument by asserting that the trial judge went strictly “by the book”
in allowing Wallace to defend himself pro se.
¶4.
Trial courts are required to make a “case-by-case determination of a defendant’s assertion
of the right to proceed pro se.” Howard v. State, 701 So. 2d 274, 283 (¶31) (Miss. 1997) (citing
Metcalf v. State, 629 So. 2d 558 (Miss. 1993)). An appellate court is to review the decision of a trial
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court allowing a defendant to act as his own attorney for an abuse of discretion. Metcalf, 629 So.
2d at 566.
¶5.
“The test for competency to stand trial is certainly a standard which must be met before a
defendant can be said to be capable of intelligently and knowingly waiving the right to counsel.”
Howard, 701 So. 2d at 280 (¶18). However, there is no requirement that a trial judge order a
competency hearing before a defendant may represent himself. Rather, our supreme court has
adopted a test from the Fifth Circuit Court of Appeals that an appellate court is to employ in
reviewing the decision of a trial judge to forego a competency hearing. In our review of a trial
judge’s decision to dispense with a competency hearing, we are to ask the question, “Did the trial
judge receive information which, objectively considered, should reasonably have raised a doubt
about [a] defendant’s competence and alerted him to the possibility that the defendant could neither
understand the proceedings, appreciate their significance, nor rationally aid his attorney in his
defense?” Howard, 701 So. 2d at 281 (¶21) (citation omitted). In light of this test, if a trial judge
has a “reasonable ground” to believe that a defendant is incompetent to stand trial, then the court
must order a hearing to determine competency. “The determination of what is ‘reasonable,’ of
course, rests largely within the discretion of the trial judge [who] sees the evidence first hand [and]
observes the demeanor and behavior of the defendant.” Howard, 701 So. 2d at 281 (¶20). In this
case, the trial judge had several opportunities to observe Wallace’s demeanor and behavior, but did
not find a reasonable ground to determine that Wallace was incompetent to stand trial. After our
review of the record, we cannot find any basis to support Wallace’s argument that the trial judge
erred in foregoing a competency hearing.
¶6.
Our supreme court requires that when a trial court is faced with a criminal defendant’s waiver
of counsel, when the defendant is charged with a felony, the court must make an on-the-record
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determination that the waiver is intelligently and competently made, and state the facts upon which
that determination is made. Conn v. State, 251 Miss. 488, 495, 170 So. 2d 20, 23 (1964). In light
of these jurisprudential requirements, our legislature embodied a set of rules, in Uniform Circuit and
County Rule 8.05, outlining the procedural mandates that a trial court must follow when it becomes
aware that a defendant wishes to proceed to trial acting as his own attorney. Rule 8.05 provides:
When the court learns that a defendant desires to act as his/her own attorney, the
court shall on the record conduct an examination of the defendant to determine if the
defendant knowingly and voluntarily desires to act as his/her own attorney. The court
shall inform the defendant that:
1. The defendant has a right to an attorney, and if the defendant cannot afford an
attorney, the state will appoint one free of charge to the defendant to defend or assist
the defendant in his/her defense.
2. The defendant has the right to conduct the defense and that the defendant may elect
to conduct the defense and allow whatever role (s)he desires to his/her attorney.
3. The court will not relax or disregard the rules of evidence, procedure or courtroom
protocol for the defendant and that the defendant will be bound by and have to
conduct himself/herself within the same rules as an attorney, that these rules are not
simple and that without legal advice his/her ability to defend himself/herself will be
hampered.
4. The right to proceed pro se usually increases the likelihood of a trial outcome
unfavorable to the defendant.
5. Other matters as the court deems appropriate.
After instructing the defendant and ascertaining that the defendant understands these
matters, the court will ascertain if the defendant still wishes to proceed pro se or if
the defendant desires an attorney to assist him/her in his/her defense. If the defendant
desires to proceed pro se, the court should determine if the defendant has exercised
this right knowingly and voluntarily, and, if so, make the finding a matter of record.
The court may appoint an attorney to assist the defendant on procedure and protocol,
even if the defendant does not desire an attorney, but all disputes between the
defendant and such attorney shall be resolved in favor of the defendant.
¶7.
Our review of the record indicates that the trial court complied completely with Uniform Rule
of Circuit and County Court 8.05, informing Wallace of every provision listed in the Rule and
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confirming Wallace’s understanding of each such provision. In fact, the court went further than
required by the rule and explained the charges against Wallace and the consequences of a conviction.
For the foregoing reasons, we cannot find error in the decision of the trial court in allowing Wallace
to represent himself, and affirm the denial of Wallace’s motion for new trial.
¶8.
THE JUDGMENT OF THE CIRCUIT COURT OF CLARKE COUNTY OF
CONVICTION OF ROBBERY AND SENTENCE OF FIFTEEN YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER
AND FINE OF $10,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO CLARKE COUNTY.
KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND
CARLTON, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.
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