STATE V. REYES, 2005-NMCA-080, 137 N.M.
727, 114 P.3d 407
STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
MARK REYES,
Defendant-Appellant.
COURT OF APPEALS OF NEW MEXICO
2005-NMCA-080, 137 N.M. 727, 114 P.3d 407
APPEAL FROM THE DISTRICT COURT OF
CHAVES COUNTY, Alvin F. Jones, District Judge.
Released for Publication June 21, 2005.
Patricia A. Madrid, Attorney General,
Santa Fe, NM, Steven S Suttle, Assistant Attorney General, Albuquerque, NM, for
Appellee.
John Bigelow, Chief Public Defender,
Sheila Lewis, Assistant Appellate Defender, Santa Fe, NM, for Appellant.
MICHAEL D. BUSTAMANTE, Chief Judge. WE
CONCUR: IRA ROBINSON, Judge, RODERICK T. KENNEDY, Judge.
AUTHOR: MICHAEL D. BUSTAMANTE.
{1} Defendant
Mark Reyes appeals from the district court's decision that he is not competent
to proceed as his own counsel, and that he did not knowingly and intelligently
waive his right to counsel. Based on the following, we reverse the district
court's decision.
FACTUAL AND PROCEDURAL BACKGROUND
{2} On June 5,
2000, the State filed a criminal information charging Defendant with attempted
first-degree murder, retaliation against a witness, receipt, transportation, or
possession of a firearm by a felon, and tampering with evidence. Richard
Gallagher, a public defender, was appointed to represent Defendant and entered
his appearance on June 6, 2000. Defendant immediately wrote a letter to the
district court requesting that he be allowed to represent himself in his trial
and that Gallagher be removed as his counsel. Defendant stated that Gallagher
did not represent him properly in Defendant's previous trial, and that he had
shown himself again to be misrepresenting Defendant by not allowing his
witnesses to speak in court. Gallagher then filed a motion to substitute
counsel or in the alternative to allow Defendant to proceed pro se.
{3} Hearings on
Defendant's motion to represent himself were scheduled and rescheduled, and the
matter was brought up at a pre-trial conference. However, the matter was not
resolved for various reasons, and the district court did not conduct a hearing
on Defendant's complaints, even when Gallagher alerted the district court to
Defendant's dissatisfaction with counsel and his wish to represent himself.
After a hearing in early September where the district court praised Gallagher
for his perseverance in continuing to represent Defendant, there was no further
discussion regarding Gallagher's representation. Defendant was represented by
Gallagher at his jury trial and was found guilty of attempted first-degree
murder and receipt, transportation, or possession of a firearm by a felon.
{4} After the
judgment and sentence was entered, Defendant wrote another letter to the
district court requesting court transcripts and noting that his motion to
dismiss Gallagher was never ruled upon by the district court. Defendant
appealed his convictions for attempted first-degree murder and felon in
possession of a firearm, contending that the district court erred in failing to
conduct a hearing concerning his interest and ability to represent himself or
replace Gallagher at trial pursuant to
Faretta v.
California, 422 U.S. 806, 835 (1975). In a memorandum opinion, we held
that the district court violated Defendant's Sixth Amendment right to counsel
by failing to conduct a
Faretta hearing to
determine whether Defendant knowingly, intelligently, and voluntarily waived
his right to counsel. Defendant's case was remanded to the district court for a
Faretta hearing.
{5} The
district court held a
Faretta hearing on
October 31, 2003. At the hearing, Defendant was questioned by his defense
counsel at that time, Jesse Cosby (Cosby), the prosecutor, and the district
judge. Among other things, Defendant expressed his unwavering desire to proceed
pro se even if it was potentially detrimental to his defense. Counsel and the
district judge discussed with Defendant the rules of proceeding pro se and
Defendant's familiarity with the trial setting and some court procedure, and
they explored Defendant's criminal history. Defendant requested standby
counsel, and stated that Cosby would be acceptable. The district court
determined, however, that under factors set forth in
Faretta, Defendant was not competent to
represent himself or conduct himself in conformity with the rules of evidence
and courtroom procedures. The district court concluded that "Defendant's
waiver of counsel, while voluntary, is not knowing and intelligent, and
therefore inadequate." This appeal followed.
{6} Our Supreme
Court has stated that whether a defendant made a valid knowing, intelligent,
and voluntary waiver of his constitutional rights "`is a question of law
which we review de novo.'"
State v. Martinez,
1999-NMSC-018, ¶ 15,
127 N.M. 207,
979 P.2d 718 (quoting
United States v. Toro-Pelaez, 107 F.3d 819, 826
(10th Cir. 1997));
State v. Padilla,
2002-NMSC-016, ¶ 18,
132 N.M. 247,
46 P.3d 1247;
State
v. Plouse,
2003-NMCA-048, ¶ 21,
133 N.M. 495,
64 P.3d 522 (stating that
we review de novo whether the district court violated a defendant's right to
counsel by failing to adequately determine whether his decision to waive
counsel and represent himself was made voluntarily, knowingly, and intelligently).
The Right to Self-Representation
{7} Faretta states that "[w]hen an accused
manages his own defense, he relinquishes, as a purely factual matter, many of
the traditional benefits associated with the right to counsel. For this reason,
in order to represent himself, the accused must `knowingly and intelligently'
forgo those relinquished benefits."
Faretta,
422 U.S. at 835 (holding that the Sixth Amendment accords a criminal defendant
the right to proceed without counsel when he or she voluntarily and
intelligently waives his or her right to counsel and elects to proceed pro se).
In so holding,
Faretta also states that a
defendant must be made aware of the risks that go along with
self-representation.
Id. at 832, 835. Our
Supreme Court followed
Faretta in
State v. Chapman,
104 N.M. 324, 327,
721 P.2d
392, 395 (1986), by recognizing that a defendant must be "accorded the
right of self-representation when he or she is able to make a knowing and
intelligent waiver of counsel." Therefore, "[i]n a case where a
defendant wishes to represent himself, the district court must determine if the
defendant is making a `knowing and intelligent' waiver of counsel and
understands fully the dangers of self-representation."
State v. Rotibi,
117 N.M. 108, 110,
869 P.2d 296,
298 (Ct. App. 1994) (quoting
State v. Castillo,
110 N.M. 54, 57,
791 P.2d 808, 811 (Ct. App. 1990));
see also Chapman,
104 N.M. at 327, 721 P.2d at 395 (stating that in a case where a defendant
wishes to represent himself, the trial court must determine if he is making a
knowing and intelligent waiver of counsel and fully understands the potential
pitfalls of self-representation);
State v. Lewis,
104 N.M. 218, 220,
719 P.2d 445, 447 (Ct. App. 1986).
{8} A
"knowing and intelligent" waiver of the right to counsel requires a
showing that "a defendant who elects to conduct his own defense has some
sense of the magnitude of the undertaking and the hazards inherent in
self-representation."
Castillo, 110
N.M. at 57, 791 P.2d at 811;
see also United States v. Padilla, 819 F.2d 952, 956
(10th Cir. 1987) (stating that the task of assessing the defendant's
understanding of the requirements and risks of self representation initially
falls on the trial court, which "must bear in mind the strong presumption
against waiver"). While, "[t]here are no fixed guidelines to
determine whether a defendant has `knowingly and intelligently' waived the
right to counsel," we have created certain instructions for the district
courts to follow at a
Faretta hearing.
Rotibi, 117 N.M. at 110, 869 P.2d at 298.
{9} To
determine whether a defendant is making a voluntary, knowing, and intelligent
waiver, "the court must inform itself regarding a defendant's competency,
understanding, background, education, training, experience, conduct and ability
to observe the court's procedures and protocol."
Chapman, 104 N.M. at 327, 721 P.2d at 395;
Castillo, 110 N.M. at 57, 791 P.2d at 811
(citing authority for the proposition that the question of an intelligent
waiver of the right to counsel turns not only on the state of the record but on
the circumstances of the case, and the trial court must consider the
"defendant's age and education, previous experience with criminal trials,
and representation by counsel before trial"). Further, in
Castillo, we determined that the trial court
must: (1) make "[a] showing on the record . . . that a defendant . . . has
some sense of the magnitude of the undertaking and the hazards inherent in
self-representation"; (2) "insure that [a] defendant has been informed
of the nature of the charges, the statutory offenses included within them, the
range of allowable punishments, possible defenses or mitigating factors that
might be available to the defendant"; and (3) "admonish [a defendant]
that [those who proceed pro se] will be expected to follow the rules of
evidence and courtroom procedure."
Id.
at 57, 791 P.2d at 811;
see Rotibi, 117 N.M. at 111, 869 P.2d at 299;
see also Sanchez
v. Mondragon, 858 F.2d 1462, 1467 (10th Cir. 1988) (stating that
assuming a defendant voluntarily chooses self-representation, the trial court
must ensure that the defendant has been informed of the nature of the charges,
the statutory offenses included within them, the range of allowable
punishments, possible defenses or mitigating factors that might be available to
the defendant, and it must also admonish the defendant that he or she will be
expected to follow the rules of evidence and courtroom procedure);
see generally Von
Moltke v. Gillies, 332 U.S. 708 (1948).
{10} The
district court should take special care to advise the defendant as to the
ramifications of proceeding pro se. In ascertaining whether a defendant is
aware of the potential pitfalls of self-representation, appellate courts have
suggested that defendants should be informed of at least the following:
(1) that presenting a defense is
not a simple matter of telling one's story, but requires adherence to various
technical rules governing the conduct of a trial; (2) that a lawyer has
substantial experience and training in trial procedure and that the prosecution
will be represented by an experienced attorney; (3) that a person unfamiliar
with legal procedures may allow the prosecutor an advantage by failing to make
objections to inadmissible evidence, may not make effective use of such rights
as the voir dire of jurors, and may make tactical decisions that produce
unintended consequences; (4) that there may be possible defenses and other
rights of which counsel would be aware and if those are not timely asserted,
they may be lost permanently; (5) that a defendant proceeding pro se will not
be allowed to complain on appeal about the competency of his representation;
and (6) that the effectiveness of his defense may well be diminished by his
dual role as attorney and accused.
3 Wayne R. LaFave et al., Criminal
Procedure § 11.5(c), at 574-75 (2d ed. 1999) (internal quotation marks
and footnotes omitted).
{11} In
Godinez v. Moran, 509 U.S. 389, 400 (1993), the
Supreme Court noted that "the defendant's technical legal knowledge is not
relevant to the determination whether he is competent to waive his right to
counsel, and ... although the defendant may conduct his own defense ultimately
to his own detriment, his choice must be honored" (internal quotation
marks and citations omitted). "The one certain guideline is that the
defendant is not required to have the competency and skill of an attorney to
proceed pro se."
Rotibi, 117 N.M. at
110-111, 869 P.2d at 298-99;
see Faretta, 422 U.S. at 836 ("[Defendant's]
technical legal knowledge, as such, was not relevant to an assessment of his
knowing exercise of the right to defend himself.").
Faretta holds only that a defendant choosing
self-representation must do so "competently and intelligently."
Id. at 835. The Supreme Court stated that a defendant's
"technical legal knowledge" is "not relevant" to the
determination whether he is competent to waive his right to counsel.
Id. at 836. Thus, while "[i]t is undeniable
that in most criminal prosecutions defendants could better defend with
counsel's guidance than by their own unskilled efforts," a criminal
defendant's ability to represent himself has no bearing upon his competence to
choose self-representation.
Id. at 834.
{12} The
Supreme Court in
Faretta held that
"[i]n forcing Faretta, under these circumstances, to accept against his
will a state-appointed public defender, the California courts deprived him of
his constitutional right to conduct his own defense."
Id. at 836. We have similarly held that
"[w]here a defendant has timely voiced such request [to represent him or
herself pro se] and a waiver of court-appointed counsel is knowingly and
intelligently undertaken, counsel may not thereafter be forced upon an
appellant."
Lewis, 104 N.M. at 221,
719 P.2d at 448.
Defendant Voluntarily, Knowingly,
and Intelligently Waived His Right to Counsel at the Faretta Hearing
{13} "The
question of whether Defendant's waiver of counsel was knowing and intelligent
is contingent on the facts and circumstances of the case."
Plouse,
2003-NMCA-048, ¶ 27. We conclude in
accordance with our case law that Defendant voluntarily, knowingly, and
intelligently waived his right to counsel. In this case, the
Faretta hearing included all of the
Castillo requirements. Defendant testified that
he is thirty-years-old. He stated that he dropped out of high school in the
eleventh grade and earned his GED in 1996 while he was incarcerated, and that
he had no problems with the English language. He stated that he has had
previous experience with the criminal justice system since he was a teenager in
that he had been charged with previous felonies and knew what occurred during a
jury trial. He was aware of and understood the charges against him and the
extent of punishments and possible range of sentences and enhancements, should
he be found guilty of the charges.
{14} Defendant
clearly acknowledged the negative aspects of self-representation. This was
discussed at the hearing and Defendant had discussed the matter with his
appointed counsel, Cosby, prior to the hearing. Defendant clearly stated that
he understood the dangers of self-representation. He acknowledged that there
are a lot of procedures, obstacles, and limitations that he will not be able to
overcome because he is not an attorney and he is incarcerated. He stated that
he knew he needed to educate himself about the rules of evidence. Defendant
acknowledged that he is
subjecting myself to losing this
case just because I'm representing myself, but I do have an understanding of
general court procedure and I pretty much understand that I'm going to be
limited in a lot of things in handling my case and that I'm responsible for my
own defense and preparation of all my paperworks [sic] and that's regardless of
my situation in county jail.
{15} Defendant
recognized that there is a problem of testifying and also being his own
attorney and that if he proceeded pro se, he would not take the stand. He also
was aware of the difficulty in arguing a case and remaining neutral by
acknowledging that there was a potential problem with neutrality of evidence
and that he would be subject to sanctions if he does not follow court decorum.
He was aware of the risk involved in comporting with rules of the district
court and that he would be subject to sanctions, including contempt of court,
if he failed to conduct himself properly. Cosby admonished Defendant that the
prosecutor could take advantage of him because of his lack of understanding and
experience with the rules of evidence. Defendant stated that he understood that
he would "take that risk" and be responsible for familiarizing
himself with court rules and procedures. He knew he would have to make his own
record for appeal in order to preserve issues and that by receiving a new trial
he would waive his right to appeal his convictions from his first trial in
which Gallagher represented him.
{16} Defendant
testified that he was never adjudicated mentally incompetent. He was evaluated
three times at the Las Vegas Medical Center forensic unit for mental competency
to stand trial, and he was always determined competent to stand trial.
Defendant stated he was not evaluated for competency in this case. Defendant
stated that he was not taking any medication at the time and had no physical
impairment or mental restrictions. Defendant stated that he had never ceased in
requesting to proceed pro se.
{17} The
prosecutor asked Defendant if he knew the difference between leading and
non-leading questions and the difference between relevant and irrelevant
questions. Defendant indicated that he had researched best evidence and hearsay
rules, that he "understand[s] everything that is written in the
books," and that while he lacked access to legal materials due to his
incarceration, he had the rules on evidence, search and seizure, and general
discovery and had some understanding of this material. Finally, Defendant
indicated his willingness to accept standby-counsel should the district court
determine that it would be appropriate.
{18} Defendant's
Faretta hearing reveals that in this case,
Defendant was clearly advised of the possible hazards and disadvantages of
self-representation. He understood the ramifications of proceeding pro se, and
he was aware of the charges and possible punishments. Defendant demonstrated
that he had a rudimentary understanding of courtroom procedure, the rules of
evidence, and rules of the court. He expressed a willingness to comply with
court decorum. Defendant's request to represent himself was unequivocal, unwavering,
coherent, and calm.
{19} As such,
the district court erred in determining that Defendant did not knowingly, and
intelligently waive his right to counsel. We have stated that:
once it has been determined that
the waiver of counsel was "knowingly and intelligently" made by a
defendant, . . . the court had no alternative but to allow Defendant to proceed
on his own. To add an additional test of competency to conduct the trial would
effectively take away the right to reject counsel and proceed pro se. Other
than defendants trained in the law, few would possess the skills to conduct an
effective defense. This is the reason defendants wishing to represent
themselves are given the Castillo
warnings. We note that the trial court has the option of terminating
self-representation when a defendant deliberately engages in serious and
obstructive misconduct. Further, the court has the right to appoint standby
counsel to aid the accused at such time as the accused requests help or to be
available to represent the accused if termination of self-representation is
necessary.
Rotibi, 117 N.M. at 111,
869 P.2d at 298.
{20} As stated
above, the fact that Defendant is not an attorney nor has the training or
skills of an attorney, should not prevent Defendant from representing himself.
Defendant was given the
Castillo warnings,
and the district court conducted a detailed hearing on the issue. While the
district court determined that Defendant "at best [has] the superficial
understanding" of legal proceedings, according to law, this is not
sufficient to prevent Defendant from proceeding pro se even if it is at his own
peril.
{21} In this
case, Defendant's request to proceed pro se was clear and unequivocal
throughout the proceedings.
See LaFave,
supra § 11.5(d) at 581. LaFave notes that
"[o]nce a clear and unequivocal request is made,
Faretta suggests only three possible grounds for
denying that request." LaFave,
supra
at 582-83. First,
Faretta stressed that
the request in that case was made "`well before the date of trial.'"
Faretta, 442 U.S. at 807; LaFave,
supra. Here, Defendant made his request before
trial began. Second,
Faretta noted that
"`the trial judge may terminate self-representation by a defendant who . .
. engages in serious and obstructionist misconduct.'"
Faretta, 442 U.S. at 834 n.46; LaFave,
supra at 583. In this case, Defendant was not
misbehaving, and was not disruptive in the course of seeking to obtain
self-representation, and was agreeable to going along with the district court's
rulings. Third, LaFave states that by requiring a valid waiver of counsel as a
prerequisite for self-representation,
Faretta
recognized the authority of a trial court to refuse to permit
self-representation when, despite its efforts to explain the consequences of
waiver, a defendant is unable to reach the level of appreciation needed for a
knowing and intelligent waiver. LaFave,
supra
at 584.
Faretta also makes clear, however,
"that a defendant does not need legal expertise nor unusual intelligence
to meet its standard of awareness of the dangers and disadvantages of
self-representation." LaFave,
supra.
{22} Our review
of the record and proceedings below reveals that the district court erred when
in deciding that Defendant was not competent to represent himself, and that
Defendant's decision to waive counsel, while voluntary, was not knowing and
intelligent.
Cf. Plouse,
2003-NMCA-048, ¶¶ 20-31 (providing a
detailed analysis of the record which supported the district court's
determination that the defendant's waiver of counsel was knowing and
intelligent);
Rotibi, 117 N.M. at 110-11,
869 P.2d at 298-99.
{23} We remand
this case to the district court for a new trial, at which time Defendant may
proceed pro se with standby counsel per his request at the
Faretta hearing.
MICHAEL D. BUSTAMANTE, Chief Judge
RODERICK T. KENNEDY, Judge