John Steer v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

JOHN STEER

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 05-189

JANUARY 25, 2006

APPEAL FROM THE YELL COUNTY

CIRCUIT COURT, NORTHERN

DISTRICT, [NO. CR-2004-79]

HONORABLE PAUL EDWARD

DANIELSON, JUDGE

REVERSED AND REMANDED

John B. Robbins, Judge

Appellant John Steer appeals his convictions for fleeing and endangering the welfare of a minor as found by a jury in Yell County Circuit Court. He challenges his convictions on the basis that he was erroneously allowed to proceed pro se because the trial court did not conduct a proper inquiry to establish a knowing and intelligent waiver of the right to counsel. The State agrees that error occurred and that appellant should be granted a new trial. We hold that the trial court erred in this instance, and we reverse and remand for a new trial.

The Sixth Amendment to the United States Constitution, made obligatory upon the states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the right to have the assistance of counsel for his defense. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996); Philyaw v. State, 288 Ark. 237, 244, 704 S.W.2d 608 (1986) (citing Gideon v. Wainwright, 372 U.S. 335 (1963) and Slaughter & Scott v. State, 240 Ark. 471, 400 S.W.2d 267 (1966)). Additionally, Article 2, section 10, of the Arkansas Constitution specifically provides that an accused in a criminal prosecution has the right to be heard by himself and his counsel. Philyaw, 288 Ark. at 244 (citing Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975)).

However, the constitutional right to counsel is a personal right and may be waived at the pretrial stage or at trial. Philyaw, 288 Ark. at 244, 704 S.W.2d 608 (citing Johnson v. Zerbst, 304 U.S. 458 (1938) and Barnes, supra). A defendant in a criminal case may invoke his right to defend himself pro se provided that (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. Philyaw, 288 Ark. at 245 (citing Barnes, supra). Notably, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Philyaw, 288 Ark. at 244, 704 S.W.2d 608 (citing Franklin & Reid v. State, 251 Ark. 223, 471 S.W.2d 760 (1971)).

The determination of whether any defendant intelligently waived his right to counsel is dependent upon the particular facts and circumstances of the case. Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999). The accused must have full knowledge or adequate warning concerning his rights and a clear intent to relinquish them before a waiver can be found. Id. Although a defendant need not have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he 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. Pierce v. State, __ Ark. __, __ S.W.3d __ (June 2, 2005). A specific warning of the dangers and disadvantages of self-representation, or a record showing that the defendant possessed such required knowledge from other sources, is required to establish the validity of a waiver. Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999).

The burden is upon the State to show that an accused voluntarily and intelligently waived his fundamental right to the assistance of counsel. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). Our standard of review is whether the circuit court's determination that the waiver of rights was knowingly and intelligently made was clearly against the preponderance of the evidence. Bogard v. State, 311 Ark. 412, 844 S.W.2d 347 (1993).

With these well-established principles in mind, we turn to the present case. At arraignment conducted on September 21, 2004, appellant's case was called, and he came forward. When asked by the trial judge if he had a lawyer, he said "no." The trial judge then asked if he could afford one, to which appellant said, "I could probably get one." The judge asked what his average weekly take home pay was, and appellant said that it varied but was "$300 maybe." The judge asked if the State was amenable to passing the case, it assented, and the case was passed until a November 16, 2004 pretrial hearing. The judge said to appellant that he was finding him not to be indigent and that he was giving appellant until the pretrial "to give you a chance to hire a lawyer." Appellant asked if he could present his case without getting a lawyer, and the judge responded that he was entitled to represent himself. Appellant said that was what he wanted to do. The judge accepted him as a pro se litigant, asked for his mailing address, and then the following transpired:

TRIAL JUDGE: Okay, now let me explain something to you. You certainly are entitled to represent yourself. I cannot impose a lawyer on you. I would encourage you to hire a lawyer, if you're able to hire a lawyer. Or if you cannot I can appoint one to represent you. But if you do represent yourself I'm going to have to-I'm going to, required by law, to hold you to the same standards that I would hold a lawyer, okay.

APPELLANT: I want a chance to present my side of it.

TRIAL JUDGE: Okay, I'm going to show you're pro se and you do not want a lawyer appointed to you and that you want to represent yourself. And what I'm going to do is set this case for a jury trial and we mail at the address you've given-Route 3, Box 1598, Dardanelle, Arkansas, 72834-and we'll mail the notice to you and that will be your notice of the trial setting, okay?

APPELLANT: Alright.

TRIAL JUDGE: It will be set for jury trial, and then when it's set for jury trial you'll be expected to be here on that and ready for trial.

APPELLANT: Thank you.

At the pretrial hearing, appellant appeared and was informed that the jury trial was set for the following day. The judge asked if appellant was still representing himself and ready for trial, and appellant said, "I just want a chance to tell the jury my side of the story, yeah." Then the following occurred:

TRIAL JUDGE: Okay, of course I have to do this, you know. You insist on representing yourself, is that what you want to do?

APPELLANT: Yeah, actually I just want to say my side of it.

TRIAL JUDGE: No, I understand, I've got to do this part. I mean, I have to discourage you from representing yourself and suggest to you that you hire a lawyer to represent you. But if you want to represent yourself, that is your right, as long as it's a free, voluntary, and knowing waiver of your right to counsel, okay? Is that what you want to do?

APPELLANT: Yeah.

TRIAL COURT: Okay, now you realize if you represent yourself I'll have to hold you to the same standard as I would a lawyer.

APPELLANT: Which will be just presentation of my case or what?

TRIAL COURT: Yes, I'll have to hold you just like-I have to treat you just like you were a lawyer.

APPELLANT: Okay.

Appellant was reminded that the jury trial was to commence the following day at 9:00 a.m., and the proceedings were dismissed.

Appellant appeared at trial the next day, and he stated he was ready. However, during voir dire, appellant at first attempted to tell the potential jurors his side of the story, which the judge halted upon objection by the prosecutor. When appellant was asked if he wanted to question the jurors for selection purposes, he declined and said "I'm fine with all of them." During appellant's cross examination of the first State's witness, appellant told the trial judge that he was unprepared, did not know what he was doing, had not expected the trial to be so complicated, and needed to leave in a little while to pick his children up from daycare. Appellant did not move for directed verdict, nor did he object to any of the State's proposed jury instructions. During closing argument, appellant stated that his witness, the other man present when he was arrested, was unavailable to testify because he was moving. Appellant also complained that he was given only one day advance notice of trial. After the jury entered guilty verdicts, appellant told the judge that he wanted an attorney and wanted to appeal. Appellant stated that he was inexperienced and negligent in representing himself. When the judge reminded appellant that he had told appellant the previous day that he encouraged him to hire a lawyer, appellant said he had been told by others not to accept a public defender. After the jury later returned its sentencing, appellant again said he wanted a lawyer and to appeal. A public defender was appointed to pursue his appeal.

Based upon our standard of review on a waiver of the right to counsel, we hold that the trial court erred in failing to conduct the proper inquiry. Indeed, the State concedes that it cannot meet its burden of showing an intelligent and knowing waiver of the right to counsel. The record does not reflect that the trial court advised appellant of the dangers and disadvantages of proceeding without an attorney. Although appellant was informed about the requirement that he follow the rules and procedures of the court, he was not given an explanation of the consequences of failure to adhere to those rules, such as the inability to secure the admission or exclusion of evidence, or the failure to preserve arguments for appeal. See Parker v. State, Ark. App. , S.W.3d (Dec. 14, 2005). There was simply no discussion of the substantive risks of proceeding without counsel. See Bledsoe, supra; Hawkins v. State, __ Ark. App. __, __ S.W.3d __ (Oct. 27, 2004). We therefore conclude that appellant did not knowingly and intelligently waive his right to counsel. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

Neal and Roaf, JJ., agree.