Opinion
Case No. 1:03-CR-212
May 13, 2004
MEMORANDUM OPINION
Defendant Andrew Ouwenga was indicted, along with defendant Karen Ouwenga, on August 27, 2003. Trial in this matter has been scheduled for May 18, 2004. Now before this Court is defendant Andrew Ouwenga's "request for Court to allow standby counsel to conduct jury selection phase of trial." The Court will deny the motion for the reasons that follow.
Defendant Andrew Ouwenga has elected to exercise his constitutional right to represent himself pro se in this matter. While the Court has appointed standby counsel to assist defendant Andrew Ouwenga, defendant's voluntarily and knowingly waived his right to representation when he chose to represent himself. In Faretta v. California, the Supreme Court held that the Sixth Amendment implies a right of self-representation. 422 U.S. 809, 821 (1975). When a defendant chooses to invoke his constitutional right to self representation, he foregoes the benefits associated with representation by legal counsel. Id. at 834.
Defendant now requests that standby counsel be permitted to represent him in conducting voir dire only. Defendant, however, wishes to continue to represent himself in the remainder of the trial. Defendant makes his request in the interest of judicial economy; however, he also requests that he be permitted to attend each side bar during voir dire in order to act as "standby to standby counsel."
In determining whether defendant has a right to represent himself and have counsel represent him, known as hybrid representation, courts have consistently held that a defendant has a right to appear pro se or a right to be represented by counsel but he does not have a right to both. The Sixth Circuit has held that:
The right to defend pro se and the right to counsel have been aptly described as "two faces of the same coin," in that waiver of one right constitutes a correlative assertion of the other. While it may be within the discretion of a District Court to permit both a criminal defendant and his attorney to conduct different phases of the defense in a criminal trial, for purposes of determining whether there has been a deprivation of constitutional rights a criminal defendant cannot logically waive or assert both rights.United States v. Conder, 423 F.2d 904, 908 (6th Cir. 1970) (citations omitted).
Although defendant does not have a right to hybrid representation, this Court has discretion to allow defendant co-counsel. See United States v. Mosely, 810 F.2d 93, 97-98 (6th Cir. 1987) (holding that whether to allow the defendant to represent himself along with allowing counsel to partly represent defendant in "hybrid representation" is a matter committed to the sound discretion of the trial court.)
After having considered the matter, the Court finds that defendant should not be allowed hybrid representation in this matter. In its discretion and in the interest of an orderly trial, the Court has determined that allowing defendant co-counsel during a portion of the trial while defendant continues to act as counsel during a different portion adds additional confusion to this trial which already involves two defendants and two other attorneys. Defendant Andrew Ouwenga has the right to represent himself or the right to have counsel represent him but not the right to both. Accordingly, defendant's "request for Court to allow standby counsel to conduct jury selection phase of trial" is DENIED. An order consistent with this opinion will follow.
ORDER
In accordance with the opinion filed this date, IT IS HEREBY ORDERED that the defendant Andrew Ouwenga's Request for Court to Allow Standby Counsel to Conduct Jury Selection Phase of Trial is DENIED.