Opinion
No. 2009 KA 0773.
October 23, 2009.
ON APPEAL FROM THE 18TH JUDICIAL DISTRICT COURT PARISH OF IBERVILLE, LOUISIANA DOCKET NO. 167-07, DIVISION "C" HONORABLE ALVIN BATISTE, JR., JUDGE PRESIDING.
Richard J. Ward, Jr., District Attorney, Elizabeth A. Engolio, Assistant District Attorney, Plaquemine, LA, Attorneys for State of Louisiana.
Prentice L. White, Louisiana Appellate Project, Baton Rouge, LA, Attorney for Defendant-Appellant, Bernard Griffin.
BEFORE: PARRO, KUHN, AND McDONALD, JJ.
The defendant, Bernard Griffin, was charged by bill of information with one count of possession of over 400 grams of cocaine, a violation of LSA-R.S. 40:967(F)(1)(c), and pled not guilty. Following a jury trial, he was found guilty as charged. He was sentenced to twenty years of imprisonment at hard labor, with the first fifteen years of the sentence to be served without benefit of probation, parole, or suspension of sentence. See LSA-R.S. 40:967(G). He now appeals, contending that the trial court failed to sufficiently question him concerning his decision to represent himself and failed to sufficiently warn him of the legal consequences of self-representation. We affirm the conviction and sentence.
FACTS
On January 30, 2007, at approximately 10:30 p.m., Deputy Ty Patin with the Iberville Parish Sheriff's office initiated a traffic stop of the defendant after the defendant passed him travelling seventy-seven miles per hour in a sixty-miles-per-hour zone on I-10 in North Iberville Parish. The defendant was very nervous. He would not make eye contact, and his hands trembled. Additionally, he and his passenger, Shamekia Puyol, gave inconsistent accounts concerning their destination. Deputy Patin explained that the interstate was being used for illegal activity involving guns and drugs and asked for consent to search the defendant's vehicle for those items. The defendant verbally consented to a search of his vehicle. A subsequent search of the defendant's vehicle revealed a hidden compartment containing seventeen, one kilogram packages of cocaine, wrapped in plastic and axle grease. The cocaine had a street value of approximately $1,700,000. Work gloves, with the same axle grease on them used to mask the scent of the cocaine, were in the driver's-side door pocket. After being advised of his Miranda rights, the defendant indicated that the drugs belonged to "C," who he claimed had been travelling behind him. Thereafter, Puyol spoke to someone on a cell phone and advised the person calling that the cocaine had been discovered.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
WAIVER OF RIGHT TO COUNSEL
In his sole assignment of error, the defendant argues that the trial court failed to conduct a proper inquiry into his understanding of the waiver of counsel. With respect to this assignment of error, we note that the minutes of the court must show either that the defendant was represented by counsel or that he was informed by the court of his right to counsel, including the right to court-appointed counsel, and that he waived such right. LSA-C.Cr.P. art. 514.
A defendant in a state criminal trial has a Sixth Amendment right to proceed without counsel when he voluntarily and intelligently elects to do so. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975). When 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. Although 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 wide open. Faretta, 422 U.S. at 835.
Before an accused can choose the right to defend himself, he must make a knowing and intelligent waiver that shows he appreciates the possible consequences of mishandling the core functions that lawyers are more competent to perform. State v. Dupre, 500 So.2d 873, 878 (La. App. 1st Cir. 1986), writ denied, 505 So.2d 55 (La. 1987). The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Dupre, 500 So.2d at 878.
Before a trial judge can allow a defendant to represent himself, he must determine whether the defendant's waiver of counsel is intelligently and voluntarily made, and whether his assertion of his right to represent himself is clear and unequivocal. Dupre, 500 So.2d at 878. It is clear that Faretta cannot, and does not, contemplate that the propriety of granting a defendant the right to represent himself shall be judged by what happens in the subsequent course of that representation. It is the record made in recognizing that right that is determinative. Furthermore, the state has the burden of establishing that the defendant knowingly and intelligently waived his constitutional right to the assistance of counsel. Dupre, 500 So.2d at 879. The failure of the trial court to secure a valid waiver of counsel constitutes reversible error. See State v. Bruce, 03-918 (La. App. 5th Cir. 12/30/03), 864 So.2d 854, 857.
The defendant was charged by bill of information filed February 22, 2007. On March 26, 2007, he appeared for arraignment without counsel and indicated he did not have counsel and could not afford to hire counsel. The court appointed the indigent defender's office to represent the defendant. Thereafter, the defendant waived formal reading of the bill of information, entered a plea of not guilty, and elected a trial by jury. He appeared in court with retained counsel on April 3, 2007, for a bond reduction hearing, but notified the court in a pro-se pleading that he had only hired the attorney for that one hearing. On June 12, 2007, the defendant appeared without counsel, and argued the prosecution against him should be dismissed on the basis of double jeopardy. The court dismissed the double jeopardy claim and again appointed the indigent defender's office to represent the defendant.
On July 24, 2007, in another pro-se pleading, the defendant notified the court that he wished to dismiss his appointed counsel because counsel did not want to subpoena videotapes of the traffic stop, interrogation, and booking. The court heard the motion at the hearing on the preliminary examination. The court advised the defendant that he had filed a number of pro-se motions and most of them had been denied as without merit. The court stated that, based on the pro-se motions, the defendant might think he could practice law, but he could not. The court advised the defendant that it took more than reading law books to become a lawyer. The court told the defendant that he would really be taking a chance by representing himself and should heed the old saying, "A lawyer that represents himself has a fool for a client." The court indicated if the defendant did not want appointed counsel Parks to represent him, it would allow him to proceed as his own counsel, but would keep Parks on the case to assist the defendant. The court then asked the defendant if he wanted Parks to represent him, and the defendant stated, "No, sir." The court ruled it would allow the defendant to represent himself unless he hired an attorney before trial, and, if he did not hire an attorney, Parks would stay on the case to assist, but the defendant would be representing himself.
On March 7, 2008, the court asked the defendant if he would be representing himself at trial. The defendant replied, "Yes, sir." The court asked the defendant if he understood that, in representing himself at trial, he would be held to the same standards as an attorney. The defendant replied, "Yes, sir." The court informed the defendant that he would have to be familiar with the rules of evidence as well as the rules of procedure in the courtroom. The defendant replied, "Yes, sir." The court advised the defendant that if he failed to do anything in accordance with those rules, the objections would be sustained. The defendant replied, "I understand." The court advised the defendant that he was "really and truly" taking a chance by going to trial representing himself. The defendant replied, "Yes, sir." The court advised the defendant that, even as a lawyer, he would not represent himself and he had the formal training to represent himself. The defendant replied, "Yes, sir." The court asked the defendant if he was aware of the saying that a lawyer representing himself has a fool for a client. The defendant replied, "Yes, sir." The court asked the defendant if he understood the procedure of the trial. The defendant replied, "Yes, sir."
The court explained that the first thing to be done was to select a jury. The defendant replied, "Yes, sir." The court advised the defendant that in his case, he would have the right to a twelve-person jury. The defendant replied, "Uh-huh." The court advised the defendant that ten of those twelve people would have to vote to either find him guilty or not guilty. The defendant replied, "Yes, sir." The court advised the defendant that the jury was selected through a process called voir dire, during which he would get to question the jurors only to determine whether or not they could be fair and impartial in his case. The defendant replied, "Yes, sir." The court advised the defendant that he would have twelve peremptory challenges which would allow him to remove a potential juror from the case without having to give any reason as long as the reason was not because of race, religion, sex, or anything like that. The court asked the defendant if he understood. The defendant replied, "Yes, sir." The court advised the defendant that he would also have what were known as challenges for cause which would allow him to challenge a juror because of something he or she said or because of some relationship he or she may have to anyone in the trial which would suggest that he or she could not be fair and impartial in the case. The defendant replied, "Yes, sir."
The court advised the defendant that after the jury is selected, the next procedure was opening statements. The defendant replied, "Yes, sir." The court advised the defendant that the state was required to give an opening statement. The defendant replied, "Yes, sir." The court advised the defendant that he, as the defendant, did not have to give an opening statement, but could choose to give one. The defendant replied, "Yes, sir."
The court advised the defendant that after opening statements, the state would start presenting the evidence and calling the witnesses into court. The defendant replied, "Yes, sir." The court advised the defendant that he would be allowed the opportunity to cross-examine those witnesses, but he would have to ask questions and not make statements. The defendant replied, "No. No, sir." The court advised the defendant that once the state finished presenting its case, he would have the right to present his case. The defendant replied, "Yes, sir." The court advised the defendant that because of the presumption of innocence, he did not have to put on a case or call any witnesses and could just sit in the chair and not say anything and not do anything. The court asked if the defendant understood that right. The defendant replied, "Yes, sir. Yes, sir." The court advised the defendant that if he did present evidence in the courtroom, the evidence would be held to the same standard as any other attorney wanting to present evidence. The defendant replied, "Yes, sir." The court advised the defendant that if he presented evidence, the state would have the opportunity to put on rebuttal evidence, or, in other words, to come back and rebut anything that he had put on. The defendant replied, "Yes, sir."
The court advised the defendant that the next step would be closing arguments, and the state would go first. The defendant replied, "Yes, sir." The court advised the defendant that he would then have a chance to present a closing argument, but the state would have the opportunity to come right behind him and rebut anything he had said during his closing argument. The defendant replied, "Yes, sir. I understand."
The court advised the defendant that the next step would be for the court to give closing instructions to the jury and for the case to go to the jury for deliberation. The defendant replied, "Yes, sir." The court advised the defendant that it had appointed the public defender's office as standby counsel, but they would not be sitting with him at counsel table. The defendant replied, "Yes, sir." The court advised the defendant that he would be sitting by himself. The defendant replied, "Yes, sir." The court advised the defendant that if he had any questions for the public defender's office, he could ask for a recess, and the court would allow him to ask Parks whatever questions he needed to ask him. The defendant replied, "Thank you, sir."
A thorough review of the record reveals that the defendant knowingly and intelligently waived his right to counsel after being advised of the dangers and disadvantages of self-representation.
This assignment of error is without merit.
REVIEW FOR ERROR
Initially, we note that our review for error is pursuant to LSA-C.Cr.P. art. 920, which provides that the only matters to be considered on appeal are errors designated in the assignments of error and "error that is discoverable by a mere inspection of the pleadings and proceedings and without inspection of the evidence." LSA-C.Cr.P. art. 920(2).
The trial court failed to impose the mandatory fine of not less than two hundred fifty thousand dollars, nor more than six hundred thousand dollars. See LSA-R.S. 40:967(F)(1)(c). Although the failure to impose the fine is error under LSA-C.Cr.P. art. 920(2), it certainly is not inherently prejudicial to the defendant. Because the trial court's failure to impose the fine was not raised by the state in either the trial court or on appeal, we are not required to take any action. As such, we decline to correct the illegally lenient sentence. See State v. Price, 05-2514 (La. App. 1st Cir. 12/28/06), 952 So.2d 112, 123-25 (en banc), writ denied, 07-0130 (La. 2/22/08), 976 So.2d 1277.