NORTON v. STATE

NORTON v. STATE
2002 OK CR 10
43 P.3d 404
Case Number: F-2000-1359
Decided: 02/28/2002
Mandate Issued: 03/21/2002
LOUIS HAROLD NORTON, Appellant -vs- STATE OF OKLAHOMA, Appellee

[43 P.3d 406]

O P I N I O N

JOHNSON, VICE-PRESIDING JUDGE:

¶1 Appellant, Louis Norton, was charged in Love County District Court, Case No. CF-2000-17, with Knowingly Concealing Stolen Property (

¶2 On February 7, 2000, two Oklahoma Department of Transportation (ODOT) buildings in Love County were burglarized and a number of tools were stolen. Two men, Gary Gilbert and Derek Mertz, subsequently confessed that they had committed the burglaries. The men told the police that they had sold several of the stolen tools to Appellant, and that Appellant was told the items were stolen. An ODOT supervisor drove to Denton, Texas, where Appellant's flea-market booth was located, and discovered several tools that had been taken in the ODOT burglary. The tools had ODOT serial numbers engraved on them for identification and inventory purposes. Appellant voluntarily discussed the matter with police and gave them other tools that he had bought from Gilbert and Mertz. He denied knowing the items were stolen.

¶3 At trial, Gilbert and Mertz testified that they sold the stolen tools to Appellant and told Appellant the items were stolen, in hopes that he would take them out of state as soon as possible. Appellant testified in his own defense, maintaining that he did not know the items were stolen. In rebuttal, the State presented testimony that Appellant had a poor reputation in the community for veracity. The jury found Appellant guilty of Knowingly Concealing Stolen Property.

¶4 Appellant raises two issues on appeal. First, he claims that because he was denied counsel at his preliminary hearing, he is entitled to a reversal of his conviction. The State responds that Appellant has waived any error by failing to raise the issue at arraignment, which would have given the district court an opportunity to address the situation.

¶5 We must first determine whether Appellant was "denied" his right to counsel at preliminary hearing, or made a voluntary and intelligent waiver of that right. The colloquy between Appellant and the preliminary hearing magistrate is brief. When asked if he intended to represent himself, Appellant stated that he did not have money for a lawyer, and further commented that he would not accept any court-appointed lawyer "from this area" that the court might supply him. When asked again if he intended to proceed pro se, Appellant replied, "Well," and the magistrate then invited the State to present its first witness.

¶6 There is, however, additional record evidence that Appellant was advised of his right to counsel. According to the minutes of Appellant's initial appearance, several weeks before preliminary hearing, Appellant was advised that he should either have retained counsel file an entry of appearance, or file an application for appointed counsel, by March 24, 2000. Otherwise, according to the minute, "the Court will interpret [Appellant's] action as an election to represent himself and will proceed with the Preliminary Hearing absent a showing of the [Appellant] [43 P.3d 407] that [the] failure [was] unavoidable."

¶7 A defendant's right to counsel is guaranteed by both the federal and state constitutions. U.S.Const. Amend. VI; Okla.Const. art. 2, § 20. That right may be waived if done knowingly and voluntarily, but waiver will not be lightly presumed, and the court must indulge every reasonable presumption against waiver. Lineberry v. State,

¶8 Despite record evidence that Appellant was advised, well in advance of preliminary hearing, that his right to counsel depended upon his affirmative responsibility to seek counsel (whether by hiring one or applying for one), we find the totality of the record insufficient to conclude that Appellant knowingly, voluntarily, and intelligently waived his right to counsel at preliminary hearing. The accused has a responsibility to seek counsel promptly, either by retaining a lawyer or applying for court-appointed counsel. An accused cannot use the lack of counsel as a delay tactic. Colbert v. State,

¶9 We must now consider whether the lack of counsel at preliminary hearing requires reversal. An accused is entitled to counsel at any critical stage of a criminal proceeding, including preliminary hearing. Coleman v. Alabama,

¶10 Appellant cites Cleek v. State,

¶11 But a majority of this Court went on in Cleek to conclude that the denial of counsel at preliminary hearing can never be harmless error. The majority distinguished Coleman, reasoning that because preliminary hearings are provided for in our state constitution, they are a "much more 'critical'" stage than they were in Coleman. Cleek, id. at ¶ 8,

¶12 We further note that the right to a preliminary hearing itself can be waived by failure to object. Sadler v. State,

¶13 Finally, we determine whether the denial of counsel at preliminary hearing was harmless beyond a reasonable doubt in this case. Appellant briefly had private counsel after bindover to the district court, and then obtained appointed counsel promptly after making application therefor. Discovery motions were filed and apparently fulfilled to the parties' satisfaction. Although [43 P.3d 409] pretrial motions were filed by the defense and entertained by the court, neither attorney moved to have the case remanded for a new preliminary hearing. Appointed counsel had over three months before trial to consider the status of the case and file any objection, which he did not. No prejudice is alleged by counsel during the trial, and no prejudice is alleged by appellate counsel on appeal.

¶14 A transcript of the preliminary hearing is included in the appeal record. The testimony at the preliminary hearing consisted of the ODOT superintendent who saw the stolen tools at Appellant's flea market stall, and the police officer who interviewed Appellant in a voluntary, non-custodial setting, wherein Appellant admitted buying the tools from Gilbert and Mertz, but denied knowledge that the property was stolen. Both of these witnesses testified at trial, but neither was impeached with his preliminary hearing testimony.

¶15 Considering all of these circumstances, we conclude that the denial of counsel at Appellant's preliminary hearing was harmless beyond a reasonable doubt. We emphasize, however, that the right to counsel is fundamental to ensuring the protection of practically every other constitutional right of the accused. Just as a waiver of counsel should not be easily presumed, the absence of counsel at preliminary hearing will not be harmless in every case. We encourage magistrates of the district courts to indulge every presumption against waiver, and to ensure that a record is made of advice to the accused on the right to counsel, warnings of the consequences of inaction, and the accused's understanding of the same. Proposition 1 is denied.

¶16 Appellant's second and final proposition of error is that the trial court's instructions to the jury erroneously contained a definition for the term "possession." The elements of the charged offense, Knowingly Concealing Stolen Property, are (1) concealing or withholding, (2) stolen, embezzled, or feloniously obtained personal property, (3) from the owner or other person having possessory rights, (4) which the defendant knew, believed, or had reasonable cause to believe was stolen, embezzled, or feloniously obtained, (5) with the intent to permanently deprive the rightful owner of the property.

¶17 In reviewing a challenge to jury instructions, this Court considers whether the instructions as a whole fairly and accurately state the law. Fontenot v. State,

¶18 The jury instructions clearly laid out all of the elements of the offense. The jury was clearly informed that in order to convict, it had to be convinced Appellant knew, or had reasonable cause to believe, that the property was stolen. "Possession" was not enumerated as an element of the offense, and the superfluous definition of that term was, in our view, a harmless technical error since the instructions, as a whole, accurately stated the applicable law. See Smallwood v. State,

DECISION

¶19 The Judgment and Sentence of the district court is AFFIRMED.

AN APPEAL FROM THE DISTRICT COURT OF LOVE COUNTY
THE HONORABLE JOHN H. SCAGGS, DISTRICT JUDGE

APPEARANCES AT TRIAL

ERIC R. JONES
ATTORNEY AT LAW
P.O. BOX 5335
ARDMORE, OK 73401
ATTORNEY FOR DEFENDANT

GARY R. BROWN
ASSISTANT DISTRICT ATTORNEY
LOVE COUNTY COURTHOUSE
SULPHUR, OK 73086
ATTORNEY FOR THE STATE

APPEARANCES ON APPEAL

S. GAIL GUNNING
INDIGENT DEFENSE SYSTEM
1623 CROSS CENTER DRIVE
NORMAN, OK 73019
ATTORNEY FOR APPELLANT

DIANE L. SLAYTON
ASSISTANT ATTORNEY GENERAL
112 STATE CAPITOL
OKLAHOMA CITY, OK 73105
ATTORNEY FOR THE STATE

OPINION BY JOHNSON, V.P.J.

 
FOOTNOTES

[43 P.3d 410]

CHAPEL, J., DISSENTING: ¶1 In 1987 this Court considered whether denial of counsel at preliminary hearing could be harmless error. In Cleek v. State,

¶2 I believe Cleek is correctly decided on state constitutional grounds. I see no inconsistency in saying that a defendant may not be denied counsel at preliminary hearing, but may waive preliminary hearing under certain circumstances. Indeed, one may waive counsel at preliminary hearing. However, a defendant's choice to waive either counsel or preliminary hearing itself cannot be compared to denial of the right to representation at a critical stage of criminal proceedings. I might go along with an argument that Norton waived his right to counsel, but the majority finds no waiver, and I will not disagree. In that case I think reversal is required.

FOOTNOTES