Brown v. State

¶1dissenting.

¶2| flOur mothers warned us to be careful what we wish for because we just might get it. This appears to be true for Mr. Brown; he wanted to “go pro se” before a jury to make his “test case” on medical maryuana, and the trial judge allowed it.

¶3Brown now argues that he did not knowingly and intelligently waive his right to counsel, as is required by Mayo v. State, 386 Ark. 275, 984 S.W.2d 801 (1999). He asserts that the trial court failed to adequately warn him of the risks and consequences of representing himself. I would hold that he was adequately warned and that his request to waive counsel was knowingly and intelligently made.

¶4The Sixth and Fourteenth Amendments to the United States Constitution guarantee that any person brought to trial in state or federal court must be afforded the fundamental right to assistance of counsel, but it is also well established that the accused has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of the constitutional right to the assistance of counsel. Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). In determining if there is a voluntary and intelligent waiver of the right to counsel, the proper inquiry for the trial court is whether appellant was made aware of the dangers of self-representation. Pierce v. State, 362 Ark. 491, 209 S.W.3d 364 (2005) (citing Faretta, supra, and Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999)). The constitutional minimum for determining whether a waiver was knowing and intelligent is that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to fore-go the aid of counsel. Williams v. State, 2009 Ark. App. 684, at 9-10, 372 S.W.3d 358, 365.

¶5ImNotably, the Supreme Court has declined to prescribe any particular script for the trial court to follow in order to satisfy the Faretta inquiry requirement. Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). Rather, the information a defendant must possess in order to intelligently waive the right to counsel “will depend on a range of case-specific factors, including the defendant’s education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.” Id. A record must establish that the defendant “knows what he is doing and his choice is made with eyes open,” Pierce, 362 Ark. at 504, 209 S.W.3d at 372 (citing Faretta, 422 U.S. at 835, 95 S.Ct. 2525), but our statutes and court rules do not specify what the trial court must do to confirm that a waiver is valid and to protect the defendant’s right to counsel. See Parker v. State, 93 Ark. App. 472, 220 S.W.3d 238 (2005) (Baker, J. concurring) (detailing the specific warnings a trial court should give a criminal defendant seeking to waive the right to counsel).

¶6In Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999), the private attorney withdrew from the case, the trial court appointed a public defender, and Bledsoe announced on the day of trial that he wished to represent himself. The court told Bledsoe that he would be required to follow all rules and procedures of the court, which likely would be difficult given his lack of formal legal education, and advised him that the public defender could handle the entire trial if he so desired. Bledsoe was given no explanation of the consequences of failing to comply with those rules, such as an inability to secure the admission or exclusion of evidence, or a failure to preserve arguments for appeal. There was neither discussion about the substantive risks of proceeding without counsel nor full disclosure about the range of 1 n penalties, Bledsoe was not explicitly informed of his constitutional right to an attorney, and no inquiry was made about his ability to afford an attorney.

¶7Brown, unlike Bledsoe, was well advised of the dangers and disadvantages of proceeding without an attorney. He was college educated and had postgraduate work in computer science. At every hearing, from arraignment in November 2008 through trial in September 2010, despite adequate warnings from the trial judge, Brown repeatedly told the judge that he wished to represent himself. He acknowledged at his arraignment that he had been offered a public defender; he told the court that he preferred “to go pro se”; he announced that he was “coming from the position of medical marijuana,” which he had used for years; and he expressed his belief that a lawyer would have difficulty defending someone who had deliberately broken the law. He successfully obtained reduction of his bond — from $30,000 to $2,500 — acting pro se and arguing in part that he needed access to his computer for online legal advice and documentation to present at his “test case” trial on marijuana. When he next appeared pro se, the court set a hearing to satisfy itself that Brown understood the chances he was taking in self representation. At the subsequent hearing, the judge said that he was concerned anytime a criminal defendant chose self representation and asked Brown if he understood that he was charged with four felonies — two Class Cs with possible imprisonment of three to ten years and fines up to $15,000, a Class B with five to twenty years and fine up to $15,000, and a Class Y with ten to forty years or life without parole — and that the sentences could run consecutively, meaning he would complete one before beginning the next. Each time Brown stated that he understood.

¶8|12At a hearing in October 2009, Brown told the court that he was not satisfied with attorneys he had contacted about representation. The court set a date to take Brown’s plea and to set trial. Noting that Brown was pro se and had not retained counsel, the court appointed Mel Jackson, a public defender, “to sit second chair” with Brown and assist him in the course of proceedings.

¶9Trial was set for May 20 and 21, 2010. Three days prior to trial, the prosecutor informed the court that he had relayed to Jackson hearsay information that Brown was possibly incompetent to stand trial. The judge observed that Brown had “been here several times,” had persisted in his desire to represent himself, and seemed to have answered the judge’s questions and be responsive. Nonetheless, the judge took the matter under advisement. At a hearing on May 20, 2010, the judge noted that Jackson had been asked to assist Brown. Jackson presented an Act 3 evaluation order he had prepared, stating that he thought the evaluation necessary despite Brown’s objecting to it. The judge approved the order, told Brown he would have to comply, and postponed trial until completion of the evaluation and report.

¶10On September 17, 2010, in chambers before trial began, the judge noted that Brown had appeared pro se throughout the proceedings and would do so at trial but that public defender Mel Jackson had been asked to stand in and assist. The judge also noted that he had several times discussed Brown’s right to represent himself and his efforts in representation, informing Brown that he had such a right; and that based on those discussions, as was borne out by the Act 3 evaluation, had concluded that Brown had no mental impairment inhibiting his ability to represent himself.

¶11| ^Expressing a desire to give Brown preliminary information about how a trial worked and for him to understand that he faced four felony charges, the judge explained the sentence ranges for each charge and the possibility of consecutive sentences. Brown responded that he understood. Noting that Jackson would continue to be involved in assisting, the judge gave Brown a lengthy explanation of his rights as the defendant; the State’s burden of proof; the procedures that would govern trial, including possible motions that Brown and Jackson might want to consider concerning a directed verdict; and the preparation of jury instructions.1 Brown again replied that he understood, and the judge asked Jackson if the explanation had left out anything or had been too fast or too slow. The State informed the court that a plea offer had been made, and Brown said that, although he appreciated the offer, he had been protesting the drug war online for twenty years and was putting his “life on the line” to prove his point. The court found that Brown was “prepared to go forward and represent himself.” Based on its discussions with him at previous hearings and on the day of trial, the court found that he was fully capable of representing himself and understood the consequences of his conduct.

¶12I agree with the majority that the record before us lacks an explicit statement by the trial judge informing Brown of his fundamental right to representation by an attorney. But I would find that Brown was fully aware of the availability of counsel, in fact was appointed an attorney to assist and advise him, and was adequately advised of the dangers and disadvantages of proceeding without an attorney. Further, Brown demonstrated that he dispossessed the information necessary to intelligently waive his right to counsel and that he knew what he was doing, making his choice with eyes open. Likewise, he timely waived his right to counsel at arraignment by affirmatively stating he wanted to “go pro se,” and he continuously reasserted the waiver in appearances spanning nearly two years. Standby counsel was appointed midway in the proceedings before trial commenced and stood ready to assist, but Brown clearly viewed self representation as the way to present his personal views on medical marijuana.

¶13For all the reasons stated above, I would affirm.

¶14HART, J., joins in this dissent.