¶1concurring. I agree that this case must be reversed; however, I write separately to address the difficulty faced by trial courts in determining if a defendant has validly waived his right to counsel.
¶2Although 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 experience, and the conduct of the accused, several specific warnings of the dangers and disadvantages of self-representation are required. Bledsoe v. State, 337 Ark. 403, 989 S.W.2d 510 (1999). Additionally, a defendant should be made aware of the fundamentals of trial strategy and how to conduct cross-examinations of witnesses. See Hatfield v. State, 346 Ark. 319, 57 S.W.3d 696 (2001).
¶3In this case, the trial judge repeatedly discouraged appellant from proceeding pro se, told him that if he represented himself he would be held to the same standards as an attorney and specified that the trial court would not be able to assist him in conducting the case. We hold that this was insufficient to apprise appellant of the dangers of self-representation, but do not explain what specific warnings are required.
¶4A recent Missouri Supreme Court case, State v. Zink, 181 S.W.3d 66 (2005), provides more detailed information that would perhaps be beneficial to trial courts in Arkansas. Zink, affirmed the trial court’s finding of a voluntary, knowing, and intelligent waiver of appellant’s right to counsel were he had signed a waiver of counsel form, Vernon’s Annotated Missouri Statute section 600.051, which codifies all the requirements for waiver of counsel. This form provides defendants with the following information:
(1) That the defendant has been charged with the offense of. (nature of charge must be inserted);
(2) That the defendant has a right to a trial on the charge and further that the defendant has a right to a trial by a jury;
(3) That the maximum possible sentence on the charge is. imprisonment in jail and a fine in the amount of.dollars or by both imprisonment and fine. That the minimum possible sentence is . imprisonment in jail or by a fine in the amount of.dollars or by both such confinement and fine;
(4) That the defendant is aware that any recommendations by a prosecuting attorney or other prosecuting official are not binding on the judge and that any such recommendations may or may not be accepted by judge;
(5) That if defendant pleads guilty or is found guilty of the charge, the judge is most likely to impose a sentence of confinement;
(6) That, if indigent, and unable to employ an attorney, the defendant has a right to request the judge to appoint counsel to assist the defendant in his defense against the charge.
Given our supreme court’s holding in Hatfield, supra, in addition to the six items enumerated in the Missouri waiver of counsel form, the trial court should also advise the defendant:
(7) That the State will be required to present the witnesses against the defendant in open court were the defendant will have the opportunity to cross-examine them and ask any questions he wishes, unless objected to by the State and ruled improper by the court;
(8) That after the State’s witnesses have testified, the defendant will have an opportunity to call witnesses on his own behalf, which will be subject to cross-examination by the State, and may elect to testify in his own behalf, but can not be required to do so.
(9) That the introduction of evidence in court is governed by rules with which the defendant may not be familiar, but with which he must nevertheless comply;
(10) That the defendant’s lack of knowledge concerning the law may be damaging to his defense and to any future appeals of his case if convicted.
¶5As noted in Zink, Missouri also requires that whenever a judge has permitted a waiver of counsel and a plea of guilty or a finding of guilty on the charge is entered and before the imposition of a sentence of confinement (including probation, parole or suspended sentence), the judge shall determine: (1) That if aplea of guilty has been entered, there is a factual basis for such a plea and, upon inquiry of defendant, that defendant is in fact guilty of the charge; (2) That the defendant does not know of the existence of any witness or of any fact, circumstances or evidence which was not presented to the court, which would exonerate defendant of the charge; (3) That upon inquiry of the prosecuting attorney there are no witnesses or evidence which would cast a reasonable doubt on the defendant’s guilt or defenses available to defendant not disclosed to the court.
¶6Furthermore, the trial court in Zink, offered appellant two opportunities to reconsider his decision prior to trial and appellant declined. Prior to the introduction of evidence, the trial court again informed appellant that he could change his mind on self-representation at any time during trial by notifying the court. Precautions such as these confirm a valid waiver and protect a defendant’s constitutional right to counsel.