Reed v. State , 524 S.W.3d 929 ( 2017 )

Cite as 2017 Ark. 246
SUPREME COURT OF ARKANSAS
No. CR-16-1061
Opinion Delivered: September 14, 2017
KEVIN LEE REED
APPELLANT APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
V. [NOS. 04CR-13-722 AND 04CR-15-
1083]
STATE OF ARKANSAS
APPELLEE HONORABLE ROBIN F. GREEN,
JUDGE
AFFIRMED.
SHAWN A. WOMACK, Associate Justice
Kevin Reed was convicted of rape and second-degree sexual assault after a trial in
the Benton County Circuit Court. He received a total, consecutive sentence of life plus
twenty years. On appeal, Reed argues that his convictions should be overturned because
the trial court denied him the right to represent himself at trial in violation of his
constitutional rights. Because we agree with the trial court that Reed’s attempt to waive his
right to counsel and represent himself was equivocal, we affirm.
The United States Supreme Court held in Faretta v. California, 422 U.S. 806 (1975),
that the right to self-representation for criminal defendants is “necessarily implied by the
structure of the [Sixth] Amendment” to the United States Constitution. Faretta, 422 U.S. at
819. There is an inherent tension, however, between the Supreme Court’s command that
criminal defendants receive effective counsel and permitting those same defendants to handle
their own defenses, virtually always without relevant expertise and sometimes with literal
Cite as 2017 Ark. 246
life-and-death stakes. Acknowledging this tension, the Court elaborated that defendants
invoking the right to self-representation must “knowingly and intelligently forgo” the right
to counsel after having been made aware of the “dangers and disadvantages of self-
representation.” Faretta, 422 U.S. at 835. This court has addressed similar concerns by
requiring that (1) the request to waive counsel must be unequivocal and timely asserted, (2)
the waiver must be knowing and intelligent, and (3) the defendant must not have engaged
in conduct that would prevent the fair and orderly exposition of the issues. See, e.g., Pierce
v. State, 362 Ark. 491, 498, 209 S.W.3d 364, 368 (2005).
In this case, Reed initially requested to waive his right to counsel and represent
himself at a pretrial hearing. The trial court then began providing the necessary disclosures
about the “dangers and disadvantages” of self-representation. Reed and the court then
engaged in an extended back-and-forth about the preparation and review of evidence for
his trial. After this discussion, Reed again said that he wished to represent himself. This
request, however, was commingled with his evident concern that the trial should be delayed,
a request the court repeatedly stated would not be granted. Consideration of Reed’s request
for self-representation then picked up the next morning, the day of the trial. Reed renewed
his request at the outset of this discussion. After the court reiterated that the trial would not
be delayed and that Reed would have to conduct voir dire and his defense that very day,
however, Reed said that he was “trying to do what I believe is right, and I don’t know.”
More directly, he then said, “I’m debating whether to represent myself or let [my current
counsel] represent me.” Reed repeated that he did not know what he wanted to do at that
point, and in response to a proposed compromise by the trial court in which Reed’s current
2
Cite as 2017 Ark. 246
counsel would serve as “a whispering attorney,” Reed confirmed that he was not sure. After
Reed’s multiple instances of uncertainty while being told of the consequences of self-
representation, the trial court ruled that Reed’s invocation was equivocal, and the trial
proceeded with Reed’s original counsel.
Our precedents have made clear that a defendant’s statements must be viewed in
their entirety to judge whether an attempt to waive counsel and self-represent is sufficiently
unequivocal. In Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999), for instance, the
defendant stated, “I’ll just represent myself. I don’t want a lawyer.” Mayo, 336 Ark. at 281,
984 S.W.2d at 805. After a review of the likely motives for the defendant’s request,
however, we upheld the trial court’s decision not to grant the defendant’s request despite a
facially unequivocal statement. As we have said, “[e]very reasonable presumption must be
indulged against the waiver of fundamental constitutional rights.” Pierce, 362 Ark. at 498,
209 S.W.3d at 368. Reed’s statements in this case presented an inconsistent picture to the
court of his commitment to the idea of self-representation. The trial court discounted
Reed’s earlier, more assured statements after further discussion indicated that Reed harbored
doubts about representing himself. This is exactly the sort of holistic review in which a court
must engage when a defendant’s decision to invoke one right imperils another.
We hold that the trial court correctly held that Reed’s attempts to waive his right to
counsel and represent himself were equivocal.
As required by Ark. Sup. Ct. R. 4-3(i) (2017), the record has been examined for
reversible error. None has been found.
Affirmed.
Brett D. Watson, Attorney at Law PLLC, by: Brett D. Watson, for Appellant.
Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for Appellee.
3