Oliver v. State
Annotate this Case
Samuel Willie OLIVER v. STATE of Arkansas
CR 95-30 ___ S.W.2d ___
Supreme Court of Arkansas
Opinion delivered March 18, 1996
1. Constitutional law -- denial of counsel -- issue must be
raised on direct appeal or be waived. -- The denial of counsel
under the Sixth Amendment is an issue more appropriately
raised on direct appeal than in an A.R.Cr.P. Rule 37 petition;
the supreme court perceived no good reason for permitting a
defendant to pursue a direct appeal on unrelated grounds while
saving denial of counsel for Rule 37 relief and as "insurance"
in the case of an adverse appellate decision; in the present
case, appellant knew what his counsel status was at trial and
to the extent that his Sixth Amendment rights were impaired,
the issue should have been raised on direct appeal; instead,
appellant contended in his direct appeal that evidence was
insufficient for his conviction; the supreme court held that
the issue of denial of counsel must be raised on direct appeal
or be waived.
2. Constitutional law -- denial of counsel -- cases indicating
issue may be raised in Rule 37 petition overruled. -- Where
earlier cases indicated that denial of counsel may be raised
in a Rule 37 petition, the supreme court overruled them to the
extent that they stood for the proposition.
3. Constitutional law -- denial of counsel -- new requirement for
raising issue on direct appeal applied prospectively. -- Where
appellant could justifiably have relied on the cases now
overruled, the supreme court concluded that fairness dictated
a prospective application of the holding that the issue of
denial of counsel must be raised on direct appeal or waived.
4. Constitutional law -- right to counsel -- constitutionally
guaranteed. -- The Sixth and Fourteenth Amendments to the
United States Constitution guarantee that any person brought
to trial in any state or federal court must be afforded the
fundamental right to assistance of counsel before that person
can be validly convicted and punished by imprisonment.
5. Constitutional law -- right to counsel -- accused has right to
represent himself -- waiver -- must be voluntary, knowing, and
intelligent. -- An accused has a constitutional right to
represent himself and to make a voluntary, knowing, and
intelligent waiver of his constitutional right to the
assistance of counsel in his defense; but every reasonable
presumption must be indulged against the waiver of fundamental
constitutional rights; the burden is on the State to show that
an accused voluntarily and intelligently waived his
fundamental right; determining whether an intelligent waiver
of the right to counsel has been made depends in each case on
the particular facts and circumstances, including the
background, the experience, and the conduct of the accused.
6. Constitutional law -- right to counsel -- trial court must
inquire of accused's ability to retain counsel and explain
right to attorney. -- The trial court must inquire of an
accused's ability to retain counsel, and if the accused is an
indigent, counsel must be appointed for him; the trial court
must do more than just make an inquiry; it must explain to the
accused that he is entitled, as a matter of law, to an
attorney and must question him to see whether he can afford to
hire counsel.
7. Constitutional law -- right to counsel -- financial capability
to hire counsel not explored by trial court -- appellant
relinquished representation to standby counsel. -- The present
case exhibited deficiencies in the trial court's necessary
inquiry into the risk of appellant's self-representation where
appellant's financial capability to hire counsel was not
explored; throughout his trial, however, appellant had standby
counsel who not only advised but also actively represented him
during most of the proceeding, cross-examining witnesses,
lodging objections, presenting the motion for directed
verdict, and delivering the closing argument; thus, it
appeared that early in his trial, appellant effectively
relinquished representation to his standby counsel.
8. Constitutional law -- right to counsel -- appellant was not
denied right to counsel -- trial court's finding not clearly
erroneous. -- Although it expressed serious concerns about
standby counsel's having been appointed the day of the trial
and thus having no knowledge of the case and reiterated that
the failure of the trial court to inquire into appellant's
financial ability to hire counsel was error, the supreme court
noted that those concerns were offset by the considerations
that appellant was adamant in wanting to proceed pro se,
making no reference to a destitute status, that counsel did
more than stand by but, rather, provided active
representation, and that an accused has the constitutional
right, which appellant invoked, to represent himself; under
the totality of these circumstances, though the trial court
erred in not inquiring into Oliver's financial situation, the
supreme court declined to hold that appellant was denied his
right to counsel or that the trial court's finding on this
point, following a Rule 37 hearing, was clearly erroneous.
9. Appeal & error -- appellant's obligation to obtain ruling at
trial. -- Where the trial court did not specifically rule on
the issue concerning whether appellant's defense was hampered
because the State had not furnished him information about the
arresting officer's medical condition when denying the Rule 37
petition, and the supreme court could not determine from the
court's order whether it was considered or decided, it was
appellant's obligation to obtain a ruling on the point in
order to preserve the issue for appeal.
Appeal from Pulaski Circuit Court; David Bogard, Judge;
affirmed.
Morehead & Morehead, by: Robert F. Morehead, Esq., for
appellant.
Winston Bryant, Att'y Gen., by: David R. Raupp, Asst. Att'y
Gen., for appellee.
Robert L. Brown, Justice. March 18, 1996 *ADVREP7*
SAMUEL WILLIE OLIVER,
APPELLANT,
V.
STATE OF ARKANSAS,
APPELLEE,
CR 95-30
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT,
NO. CR 92-2006,
HON. DAVID BOGARD, JUDGE,
AFFIRMED.
Robert L. Brown, Justice.
Appellant Samuel Willie Oliver raises two points in his appeal
of four convictions for delivery of crack cocaine. He first
contends that he was deprived of effective assistance of counsel
and did not waive such. He, secondly, urges that his due process
rights were violated owing to lack of information about the
arresting officer's medical condition. Neither point has merit,
and we affirm.
Samuel Oliver was charged with four counts of delivery of
crack cocaine. The State's principal witness was an undercover
investigator, Thomas Washington, who made the four drug purchases
from Oliver. Officer Washington later became ill. He originally
suffered from environmental encephalitis and multiple brain
aneurysms. He also suffered from sarcoidosis, a disease in which
lesions develop throughout the body. Oliver tried to discover
Officer Washington's medical records, and his request was denied by
the trial court.
Prior to trial, Oliver retained four different attorneys for
his defense, and each one was terminated at his request. The last
termination of counsel occurred at the omnibus hearing before trial
commenced, where Oliver announced his intention to proceed pro se.
The following colloquy occurred between Oliver and the trial court:
SAM OLIVER: I'm doing my own pro se.
JOE OLIVER: He's doing his own pro se.
SAM OLIVER: I filed my own motions already.
JOE OLIVER: And he subpoenaed --
SAM OLIVER: Thomas Washington.
JOE OLIVER: -- Thomas Washington, and we have a copy
of the subpoenas right here, both of them.
COURT: Well, I've got to -- to recommend you not do
this, Mr. -- both Mr. Olivers, you know.
SAM OLIVER: I want to represent --
COURT: You're proceeding by yourself and think
you're -- as I've told you before, I think that dangerous
to do that.
....
COURT: Well, I can't force you to have an attorney.
You see, I can't force one on you and I think it's
against your better interest to do that, but I can't make
you --
SAM OLIVER: I'm prepared --
COURT: -- have an attorney.
SAM OLIVER: I'm prepared for the case today.
COURT: At the trial of this case, I will still have
an attorney sitting at the counsel table in case you need
one.
SAM OLIVER: No, I don't think so, Your Honor, 'cause
--
COURT: Well, I think so we will. We will have an
attorney sitting at the counsel -- you don't have to use
him.
COURT: You can ignore him. That's your prerogative,
but there will be one available for you.
....
Okay, Mr. Smedley, [attorney], I'm going to relieve
you. These gentlemen don't want your services.
SMEDLEY: Thank you.
COURT: That's against my advice, once again for the
record, --
SMEDLEY: It's against my advice, too.
COURT: -- but they don't have to -- they don't have
to have an attorney.
The trial court permitted Oliver to proceed pro se, and standby
counsel played an active role in the trial. Oliver was found
guilty on all four counts and received a cumulative sentence of
twenty years. He appealed his conviction on the basis of
insufficiency of the evidence, and the Court of Appeals upheld it
in an unpublished opinion. Denial of counsel was not an issue on
appeal.
Oliver next filed a petition for relief under Ark. R. Crim. P.
37. He alleged in his petition that he was denied his Sixth
Amendment right to an attorney and was forced to proceed pro se.
He also alleged that the State withheld essential evidence
(Washington's medical history) in violation of Ark. R. Crim. P. 17
and Brady v. Maryland, 373 U.S. 83 (1963), which effective counsel
would have obtained. A hearing was held and following that
proceeding, the trial court denied the petition and made the
following finding, among others:
5. The defendant was not denied the effective
assistance of counsel. The defendant knowingly and
voluntarily elected to proceed to trial pro se after
being cautioned extensively about doing so by the court.
Competent counsel was nonetheless appointed to accompany
defendant to trial, was available throughout trial and to
the extent called upon by the defendant performed
competently and effectively.
No specific ruling was made on whether failure to obtain Officer
Washington's medical records constituted ineffective counsel.
Oliver now appeals.
For his first point, Oliver argues that the trial court erred
in failing to conduct an inquiry into his financial condition in
connection with his ability to hire counsel and, thus, deprived him
of the right to have appointed counsel. The State's initial
response is that this argument is procedurally barred because (1)
it could have been raised on direct appeal, and (2) it is not an
argument cognizable under Rule 37.
This court has previously considered Rule 37 appeals dealing
with the issue of denial of counsel. See Costillo v. State, 292
Ark. 43, 728 S.W.2d 153 (1987) (direct appeal not perfected);
Philyaw v. State. 288 Ark. 237, 704 S.W.2d 608 (1986) (direct
appeal not perfected); Leak v. Graves & State, 261 Ark. 619, 550 S.W.2d 179 (1977). Here, Oliver's argument is that had the trial
court inquired into his financial condition, counsel might well
have been appointed for him at no expense. The implication is that
he did not know that he might qualify for counsel as an indigent,
and the inquiry by the court would have alerted him to that fact.
We are troubled by the fact that the denial of counsel under
the Sixth Amendment is an issue more appropriately raised on direct
appeal. See, e.g., Deere v. State, 301 Ark. 505, 785 S.W.2d 31
(1990). We can perceive of no good reason for permitting a
defendant to pursue a direct appeal on unrelated grounds while
saving denial of counsel for Rule 37 relief and as "insurance" in
the case of an adverse appellate decision. In this case, Oliver
knew what his counsel status was at trial and to the extent his
Sixth Amendment rights were impaired, this should have been raised
on direct appeal. Instead, Oliver contended in his direct appeal
that evidence was insufficient for his conviction. This scenario
should not be allowed to transpire. We hold that the issue of
denial of counsel must be raised on direct appeal or be waived.
By the same token, the caselaw cited above more than suggests
that denial of counsel may be raised in a Rule 37 petition. To the
extent the cases stand for this proposition, Costillo v. State, 292
Ark. 43, 728 S.W.2d 153 (1987); Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986); and Leak v. Graves & State, 261 Ark. 619, 550 S.W.2d 179 (1977) are overruled.
In overruling these cases, we must consider whether our
requirement that this issue be raised on direct appeal should be
applied prospectively. We have held that when our cases appeared
to go both ways on when an appeal from a denial of a motion to
transfer to juvenile court should be taken, it would be
unconscionable to deny or foreclose an appellant the right to
appeal. Hamilton v. State, 320 Ark. 346, 896 S.W.2d 897 (1995).
We conclude that fairness dictates a prospective application of our
holding. Oliver could justifiably have relied on the cases now
overruled. See Wiles v. Wiles, 289 Ark. 340, 711 S.W.2d 789
(1986). Recently, we overruled caselaw which had held that failure
to preserve the issue of insufficiency of the evidence was not
grounds for Rule 37 relief. See Thomas v. State, 322 Ark. 670, 911 S.W.2d 259 (1995) (per curiam). We applied the Thomas decision
prospectively. We do the same in the case before us.
We next turn to the merits of Oliver's first point. The Sixth
and Fourteenth Amendments to the United States Constitution
guarantee that any person brought to trial in any state or federal
court must be afforded the fundamental right to assistance of
counsel before that person can be validly convicted and punished by
imprisonment. Faretta v. California, 422 U.S. 806 (1975); Daniels
v. State, 322 Ark. 367, 908 S.W.2d 638 (1995); Kincade v. State,
303 Ark. 331, 796 S.W.2d 580 (1990). It is also well established
that an accused has a constitutional right to represent himself and
make a voluntary, knowing, and intelligent waiver of his
constitutional right to the assistance of counsel in his defense.
Faretta v. California, supra; Daniels v. State, supra; Deere v.
State, 301 Ark. 505, 785 S.W.2d 31 (1990). But every reasonable
presumption must be indulged against the waiver of fundamental
constitutional rights. Daniels v. State, supra; Kincade v. State,
supra; Philyaw v. State, supra. The burden is on the State to show
that an accused voluntarily and intelligently waived his
fundamental right. Daniels v. State, supra; Scott v. State, 298
Ark. 214, 766 S.W.2d 428 (1989). Determining whether an
intelligent waiver of the right to counsel has been made depends in
each case on the particular facts and circumstances, including the
background, the experience, and the conduct of the accused.
Daniels v. State, supra; Gibson v. State, 298 Ark. 43, 764 S.W.2d 617, cert. denied 491 U.S. 910 (1989).
Oliver claims that he did not voluntarily and intelligently
waive his right to counsel. He was forced to go to trial pro se,
he contends, because he could not afford another attorney and
because the trial court failed to inquire into his financial
condition or to inform him that he could have had counsel
appointed. This court stated in Kincade v. State, supra, that the
trial court must inquire of an accused's ability to retain counsel,
and if the accused is an indigent, counsel must be appointed for
him. Ark. R. Crim. P. 8.2. The trial court must do more than just
make an inquiry. The court must explain to the accused that he is
entitled, as a matter of law, to an attorney and must question him
to see if he can afford to hire counsel. Gibson v. State, supra.
The present case exhibits deficiencies in the necessary
inquiry into the risk of Oliver's representing himself. Certainly,
Oliver's financial capability to hire counsel was not explored.
But one paramount feature distinguishes this case. Oliver had
standby counsel throughout his trial who not only advised him but
who actively represented him during most of the proceeding. With
the exception of the initial cross-examination of Thomas
Washington, standby counsel cross-examined each state witness.
Counsel also made objections during the State's case and presented
the motion for directed verdict following the State's case. As
part of Oliver's defense, counsel recalled Officer Washington as
his first witness and examined him, as well as the remaining six
defense witnesses. Counsel also made the closing argument. Thus,
it appears that early on in his trial, Oliver effectively
relinquished representation to his standby counsel.
In short, this is not a case where standby counsel did
nothing. See Kincade v. State, supra; Philyaw v. State, supra.
Rather, the situation bears some similarity to Calamese v. State,
276 Ark. 422, 635 S.W.2d 261 (1982), which offers some guidance.
In Calamese, after three continuances to allow the defendant to
retain counsel, the trial court proceeded to trial, though the
defendant was without counsel. The court appointed two attorneys
to assist the defendant on the morning of the trial. Though the
defendant was convicted, counsel performed an active role at trial.
The defendant argued on appeal that the record did not reflect a
voluntary or intelligent waiver. We stated:
It is true there is nothing in the record showing the
trial court made any inquiry into appellant's attempted
waiver of counsel, and if she had been permitted to act
as her own counsel we would be hard-pressed to deny the
argument, as the State has the burden of showing a
voluntary and intelligent waiver of counsel. Jackson v.
State, 249 Ark. 653, 460 S.W.2d 319 (1970), and United
States v. Dujanovic, 486 F.2d 182 (1973). But we are
unwilling to sustain the argument where the appellant was
not left to represent herself, but was capably
represented throughout the trial. Nowhere in the record
does it appear that she was called on to represent
herself or left unrepresented at any stage of the
proceedings, trial or pretrial. Thus, the only
conceivable impediment to the appellant is the fact that
trial counsel were appointed for her on the morning of
trial. However, no argument is offered on that score and
in view of the repeated opportunities given her to employ
her own counsel, which she had the means and disposition
to do, we find no prejudicial error mandating another
trial. The circumstances of each case must be examined
in their entirety in determining whether a defendant has
been adequately represented and on that basis we can
reject appellant's argument. Barnes v. State, 258 Ark.
565, 528 S.W.2d 370 (1975); Jackson v. State, supra;
Johnson v. Zerbst, 304 U.S. 458 (1938).
Calamese, 276 Ark. at 425, 635 S.W.2d at 262.
It is true that here, unlike the situation in Calamese, Oliver
testified at the Rule 37 hearing that he had no money to hire
another attorney. He also cross-examined the first State witness
himself. But following that, he took full advantage of his standby
counsel by allowing him to examine witnesses, make motions and
objections, and conclude with a closing argument. We admit to
having serious concerns about standby counsel's being appointed the
day of the trial and, thus, having no knowledge of the case, which
was also the situation in Calamese. And, as already noted the
failure of the trial court to inquire into Oliver's financial
ability to hire counsel was error. Nonetheless, offsetting these
concerns are two facts -- (1) Oliver was adamant in wanting to
proceed pro se, making no reference to a destitute status, and (2)
counsel did more than stand by but, rather, provided active
representation. There is, too, the consideration that an accused
has the constitutional right to represent himself, which Oliver
invoked. Under the totality of these circumstances, though the
trial court erred in not inquiring into Oliver's financial
situation, we would be hard put to hold that Oliver was denied his
right to counsel or that the trial court's finding on this point,
following a Rule 37 hearing, was clearly erroneous. See Wicoff v.
State, 321 Ark. 97, 900 S.W.2d 187 (1995); see also Wolfs v. State,
255 Ark. 97, 498 S.W.2d 878 (1973).
This case differs from our recent holding in Daniels v. State,
322 Ark. 367, 908 S.W.2d 638 (1995). In Daniels, the defendant had
elected to represent himself with standby counsel available. After
the State called its first witness, Daniels was removed from the
courtroom, and his former counsel went to the trial judge's chamber
and did not participate in the trial. We observed that Daniels was
not represented at his trial, and there was no proof of an
appropriate waiver. We further emphasized that no inquiry into the
risks of proceeding pro se had been made. We held that it was
error for Daniels to represent himself without the proper inquiry
by the court. Though not determinative, we also took note of the
fact that the State conceded error due to absence of counsel.
Those facts are far different from what we have before us today.
Oliver next contends that his defense was hampered because the
State had not furnished him information of Officer Washington's
medical condition pursuant to his motion and as Ark. R. Crim. P. 17
requires. He argues that both retained counsel and standby counsel
were not effective in pursuing this matter. We need not address
this point. The trial court did not specifically rule on this
issue when denying the petition for Rule 37 relief, and we cannot
determine from the court's order whether it was considered or
decided. It was Oliver's obligation to obtain a ruling on this
point in order to preserve the issue for appeal. Bowen v. State,
322 Ark. 483, 911 S.W.2d 555 (1995). This was not done.
Affirmed.
Dudley and Newbern, JJ., dissent.
Glaze, J., concurs. In my view, the appellant voluntarily,
knowingly and intelligently waived his right to the assistance of
counsel. Nonetheless, the trial court still appointed appellant an
attorney who effectively represented him at trial. I would affirm
for these reasons alone.
Roaf, J., concurs. March 18, 1996 *ADVREP7-A*
SAMUEL WILLIE OLIVER,
APPELLANT,
V.
STATE OF ARKANSAS,
APPELLEE.
CR95-30
DISSENTING OPINION.
Robert H. Dudley, Justice.
Appellant was charged with four felonies. He employed a
succession of four attorneys, but for various reasons discharged
each of them. He appeared with his fourth attorney at an omnibus
hearing and informed the trial court that he wished to discharge
the attorney and to represent himself. The trial court did not
make a meaningful inquiry into appellant's ability to employ new
counsel, did not make a full inquiry into appellant's ability to
represent himself, did not determine whether appellant made a
knowing and intelligent waiver of counsel, but still allowed the
attorney to withdraw. The trial court stated that standby counsel
would be appointed at trial, but left appellant to represent
himself at the omnibus hearing. Immediately before the trial
began, appellant was again left to represent himself when the trial
court heard and granted the State's motions to quash subpoenas
issued on behalf of appellant. As the trial began, the trial court
appointed standby counsel. There has been no showing by the State
that standby counsel had notice that he was going to be appointed,
that he investigated the case, interviewed witnesses, or discussed
the case with appellant. The record does not show that standby
counsel participated in voir dire or the selection of the jury.
Appellant personally conducted cross-examination of the State's
first and most important witness. Subsequently, standby counsel
represented appellant. Appellant was convicted and sentenced for
each of the four felonies. He filed a petition for postconviction
relief. The trial court denied relief and the majority opinion
affirms the denial of relief. I dissent.
In his first point of appeal, appellant contends that the
trial court (1) failed to question him about his ability to employ
counsel and (2) failed to fully explain the disadvantages of
representing himself, and, as a consequence, he did not knowingly
and intelligently waive assistance of counsel. The argument has
merit.
We recently decided a case with facts that are comparable to
the case at bar. In Daniels v. State, 322 Ark. 367, 908 S.W.2d 638
(1995), the defendant and his attorney appeared before the trial
court, and the defendant informed the trial court that he wished to
represent himself. The trial court stated, "I think it's a mistake
not having Mr. Gibbons [counsel] with you there, but that's your
decision" and "there are procedures that we are going to follow
that I suppose you don't understand in selecting a jury." Id. at
370, 908 S.W.2d at 639. The trial court informed the defendant
that his counsel would remain available, but allowed the defendant
to represent himself. Id. The defendant represented himself
through jury selection and until the State's first witness was
called. At that time, the defendant became unruly and was removed
from the courtroom. In reversing because the defendant did not
knowingly and intelligently waive his right to counsel we wrote:
The Sixth and Fourteenth Amendments to the
Constitution of the United States guarantee that any
person brought to trial in any state or federal court
must be afforded the fundamental right to assistance of
counsel before he can be validly convicted and punished
by imprisonment. Faretta v. California, 422 U.S. 806
(1975); Kincade v. State, 303 Ark. 331, 796 S.W.2d 580
(1990). It is well established that an accused may make
a voluntary, knowing, and intelligent waiver of his
constitutional right to the assistance of counsel in his
defense. Deere v. State, 301 Ark. 505, 785 S.W.2d 31
(1990). However, every reasonable presumption must be
indulged against the waiver of fundamental constitutional
rights. Kincade v. State, supra; Philyaw v. State, 288
Ark. 237, 704 S.W.2d 608 (1986). The burden is upon the
state to show that an accused voluntarily and
intelligently waived his fundamental right to the
assistance of counsel. Scott v. State, 298 Ark. 214, 766 S.W.2d 428 (1989).
In Faretta v. California, supra, the United States
Supreme Court stated that "[a]lthough a defendant need
not himself 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.'" (quoting Adams v.
United States ex rel. McCann, 317 U.S. 269 (1942)). In
Gibson v. State, 298 Ark. 43, 764 S.W.2d 617, cert.
denied 491 U.S. 910 (1989), we relied upon Patterson v.
Illinois, 487 U.S. 285 (1988), to conclude that the
constitutional minimum for a knowing and intelligent
waiver of the right to counsel requires that the accused
be made sufficiently aware of his right to have counsel
present and of the possible consequences of a decision to
forego the aid of counsel. Further, we have stated that
determining whether an intelligent waiver of the right to
counsel has been made depends in each case upon the
particular facts and circumstances, including the
background, the experience and conduct of the accused.
Gibson v. State, supra. To establish a voluntary and
intelligent waiver, the trial judge must explain to the
accused that he is entitled as a matter of law to an
attorney and question him to see if he can afford to hire
counsel. Id. The judge must also explain the
desirability of having the assistance of an attorney
during the trial and the drawbacks of not having an
attorney. Id. The last requirement is especially
important since a party appearing pro se is responsible
for any mistakes he makes in the conduct of his trial and
receives no special consideration on appeal. Id.
The appellant was not represented by counsel at his
trial and there is no showing on the record that he
knowingly and intelligently waived this right. The trial
court commented that the appellant appeared to be well
versed in the law; however, no real inquiry was made. In
fact, the state concedes there was no inquiry. The trial
court did not explain the risks or the consequences of
proceeding without counsel. See Gibson v. State, supra;
Murdock v. State, 291 Ark. 8, 722 S.W.2d 268 (1986).
Accordingly, we hold the trial court erred by allowing
the appellant to represent himself without making a
proper inquiry as required by Faretta v. California,
supra.
Daniels v. State, 322 Ark. at 372-73, 908 S.W.2d at 640-41.
The concurring opinion agreed. It provides that the trial
judge was "required to ensure appellant knowingly and intelligently
waived counsel, once appellant terminated counsel and chose to
represent himself." Daniels v. State, 322 Ark. 367, 375, 908 S.W.2d 638, 642 (1995) (Glaze, J., concurring).
The same reasoning is applicable to the case at bar. Here,
there was no inquiry into appellant's ability to employ counsel, no
inquiry into his background or experiences, and no inquiry into his
familiarity with criminal law. The record does not reflect that
defendant knew what he was doing or that he was aware of the
dangers of self-representation. Indeed, the State, in its brief,
refers to the adage that one who represents himself has a fool for
a client. In sum, the record does not show that defendant
knowingly and intelligently waived his fundamental right of
assistance of counsel.
The majority opinion admits, "The present case exhibits
deficiencies in the necessary inquiry into the risk of Oliver's
representing himself," and "We admit to having serious concerns
about standby counsel's being appointed the day of the trial and,
thus, having no knowledge of the case...." It further admits,
"[T]he failure of the trial court to inquire into Oliver's
financial ability to hire counsel was error." (Emphasis supplied.)
Thus, the majority opinion admits that the trial court committed
two Sixth Amendment errors involving right to counsel, but, under
a totality-of-the-circumstances test, affirms the trial court. The
majority opinion reaches the wrong result because it applies the
wrong standard.
It is now well settled that Sixth Amendment violations that
cast doubt on the fairness of the entire trial process can never be
considered harmless. See Holloway v. Arkansas, 435 U.S. 475 (1978)
(conflict of interest in representation throughout the proceeding);
Gideon v. Wainwright, 372 U.S. 335 (1963) (deprivation of counsel
throughout the proceeding); White v. Maryland, 373 U.S. 59 (1963)
and Hamilton v. Alabama, 368 U.S. 52 (1961) (absence of counsel
from arraignment proceeding that affected the entire trial). The
Chapman harmless-error test could not be applied in the foregoing
cases because the scope of the violation could not be discerned
from the record, and any inquiry into its effect on the outcome of
the case would be purely speculative. Satterwhite v. Texas, 486 U.S. 249 (1988).
The Chapman harmless-error test is authorized only in those
Sixth Amendment cases where the violation is limited to the
admission of evidence obtained without counsel. Satterwhite v.
Texas, 486 U.S. 249 (1988). The error in this case involves more
than the admission of evidence. Indeed, the majority opinion
confesses that the trial court committed errors involving inquiry
about, and appointment of, counsel. It is settled that such error
cannot be considered harmless, and there is no authority for the
totality-of-the-circumstances test utilized in the majority
opinion. Reversal and remand is mandated under the Sixth Amendment
cases decided by the Supreme Court.
Newbern, J., joins in this dissent.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
