Opinion
No. 566, 2000
Submitted: December 20, 2001
Decided: February 15, 2002
Court Below: Superior Court of the State of Delaware in and for New Castle County Cr. A. Nos. IN98-12-0233 through 0237, 0239 and IN98-12-2171
Affirmed.
Unpublished opinion is below.
ANDRE R. THOMAS, Defendant Below, Appellant, v. STATE OF DELAWARE, Plaintiff Below, Appellee. No. 566, 2000 In the Supreme Court of the State of Delaware. Submitted: December 20, 2001 Decided: February 15, 2002
Before VEASEY, Chief Justice, HOLLAND and STEELE, Justices.
ORDER
MYRON T. STEELE, Justice.
This 15th day of February 2002, on consideration of the briefs of the parties it appears to the Court that:
1) In July 2000, the State tried Appellant, defendant-below, Andre R. Thomas, on three counts of Reckless Endangering in the First Degree and related charges, including Possession of a Firearm During Commission of a Felony and Possession of a Deadly Weapon by a Person Prohibited. After a one-week trial, a Superior Court jury returned a verdict of guilty on all counts. In December 2000, the Superior Court sentenced Appellant as an habitual offender to an aggregate term of 35 years. This is Thomas' direct appeal of his conviction.
2) In November 1998, three Wilmington police officers responded to a report of a commotion in Appellant Thomas' hotel room. As they prepared to knock on the door, Thomas, delusional and apparently under the influence of cocaine, fired a gunshot through the door. After a brief standoff, Thomas surrendered to the police. The court appointed five separate defense attorneys to appear on Thomas' behalf at various stages of the pretrial proceedings. Thomas was unable to establish a working relationship with any of his court-appointed counsel. In June 2000, Thomas requested leave of the court to proceed at trial pro se. After a hearing concerning Thomas' waiver of counsel and the potential disadvantages he would face if he chose to represent himself, including the maximum sentence he could receive if convicted, the trial judge permitted the motion.
3) The right to represent oneself in a criminal proceeding is fundamental, protected by both the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Delaware Constitution. The role of the trial court when entertaining a motion to proceed pro se is to (a) determine if the defendant has made a knowing and intelligent waiver of his right to counsel and (b) inform the defendant of the risks inherent in going forward without the assistance of legal counsel. In this appeal, Thomas contends that his psychological condition at the time of trial prevented him from making a knowing and intelligent waiver of his right to counsel. The record in this case clearly indicates that the Thomas made his decision voluntarily, fully informed of the dangers inherent to self-representation, and with adequate assistance of counsel.
Hooks v. State, 416 A.2d 189, 197 (1980) (citing Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975)).
Briscoe v. State, 606 A.2d 103, 107-08 (Del. 1992).
4) The United States Supreme Court has held that the competence to stand trial is per se evidence that he was competent to waive counsel. Appellant makes no claim that his psychological state was so incapacitating that it rendered him unable to stand trial. The test for determining a defendant's competence to stand trial is whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him. The record clearly demonstrates that the defendant was able to communicate with his lawyer in the pro se proceeding, despite the fact that he did not avail himself of counsel's assistance, and that he was not only capable of understanding the proceedings, but was sufficiently versed in the law and trial procedure that he was able to file motions to dismiss on speedy trial grounds, motions to suppress evidence, and to request subpoenas for potential witnesses. Although Thomas' filings can be characterized as excessive, they demonstrate a sufficiently adequate knowledge of the proceedings to meet the broad standard applied when examining competence.
Godinez v. Moran, 509 U.S. 389, 398 (1993).
Weeks v. State, 653 A.2d 266, 270 (1995) (citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)).
5) Thomas further contends that the trial judge committed reversible error when he failed to provide stand-by counsel to assist in his defense, even though Thomas did not request stand-by counsel. We find that the trial judge did not abuse his discretion when he declined to appoint stand-by counsel. Although we have held that the provision of stand-by counsel may often be the best course for a trial judge to follow in instances of pro se representation, the ultimate determination rests squarely within the discretion of the trial court. The record provides ample support for the trial judge's conclusions that Thomas' refusal to heed any advice, whether from counsel, or the trial judge, would have rendered stand-by counsel utterly ineffective and only added an unnecessary, unhelpful complication to the already confused proceeding.
Briscoe, 606 A.2d at 109 n. 2 (citing McKaskle v. Wiggins, 465 U.S. 168, 184, 104 S.Ct. 944, 954, 79 L.Ed. 122 (1984)); Bass v. State, 760 A.2d 162 (Table), 2000 WL 1508724 at **2 (Del. 1998) (order).
6) The trial judge did not commit plain error in violation of Appellant's constitutional right to representation at all critical stages of the criminal process by failing to provide counsel to assist in the evaluation of a plea bargain offered after Thomas had elected to proceed pro se. Although a defendant's right to counsel at the plea bargain stage is well recognized, Thomas waived that right when he elected to represent himself at trial. At no time did Thomas request assistance in reviewing the State's plea offer. Once the court determined that Thomas had willfully and voluntarily exercised his right to self-representation, without any indication that he had reconsidered this decision, the appointment of counsel to represent Thomas' interests in plea negotiations would have violated his right to self-representation.
See Faretta, 422 U.S. at 820, 95 S.Ct. at 2533 (a trial court may not use the Sixth Amendment right to counsel as an excuse to impose itself between a defendant and his right to self-representation).
7) Thomas also argues that the trial judge committed plain error when he failed to instruct the jury on the lesser-included offense of Reckless Endangering in the Second Degree. Even if Thomas had requested the lesser-included offense instruction at trial, the law only entitles a defendant to the instruction if the evidence reflects a rational basis to acquit of the greater offense and to convict of the lesser included offense. The undisputed evidence that a bullet passed through the hotel room door in near proximity to the three police offers does not suggest a situation in which a jury could rationally conclude that the bullet posed a substantial risk of injury, but not a substantial risk of death. Similarly, this evidence belies Appellant's contention that the State presented insufficient evidence for the charge of Reckless Endangering First to go to the jury.
Del. C. Ann. tit. 11 § 206(c); Ward v. State, 575 A.2d 1156, 1159 (Del. 1990).
8) Finally, Appellant claims that the trial court committed plain error when it failed to instruct the jury sua sponte on justification. The Delaware Code specifically states that an affirmative defense based on justification is not available when the defendant has recklessly created a substantial risk of injury and is being prosecuted for an offense alleging reckless conduct directed toward innocent persons. Because the State based the Reckless Endangering charges leveled against Thomas upon actions that recklessly created a risk of injury toward innocent police officers, justification was unavailable to Thomas and the trial judge did not err by failing to instruct the jury on that defense.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is AFFIRMED.