State v. Williams , 681 S.W.2d 948 ( 1984 )

SNYDER, Judge.

Willie Lee Williams appeals from a judgment entered on a jury verdict convicting him of stealing over $150, § 570.030 RSMo. 1978. He was sentenced by the court as a persistent offender to ten years imprisonment. § 557.036 RSMo.1978; § 558.016 RSMo.1978. Appellant’s principal allegation of error challenges the trial court’s refusal to permit him to make a closing argument pro se, even though he was represented by counsel, unless appellant testified under oath. The judgment is affirmed.

Appellant does not challenge the sufficiency of the evidence to support his conviction. There is evidence on the record to show that on April 10, 1982, appellant entered the Wehmueller Jewelry Store, 229 Chesterfield Mall, and took a ring valued at $9,235.00.

The events giving rise to the dispute on appeal began on the first morning of the trial, when counsel retained by appellant six months earlier moved to withdraw from the case upon appellant’s request. Appellant and his counsel had requested and obtained three continuances, but appellant had not requested a new attorney until the first morning of the trial.

After an evidentiary hearing at which appellant asserted there was a total breakdown in communication between him and his counsel, the trial court denied defense counsel’s motion to withdraw.

In a subsequent pre-trial proceeding, a defense counsel asked the appellant on the record whether he wanted to proceed to trial as his own counsel. The appellant answered he did not. The appellant nonetheless said he did not want his counsel to participate in the trial, even though counsel disagreed and warned appellant of the possible harmful consequences.

The transcript makes clear that, although appellant declined affirmatively to say he wanted to represent himself, he steadfastly clung to his position that he did not want to be represented by his defense counsel. The trial court just as steadfastly ruled repeatedly that the court was not permitting defense counsel to withdraw and that appellant was in fact represented by counsel.

Defense counsel sat with appellant throughout the trial, made statements to protect his client, participated at bench conferences, and represented appellant at pretrial and post-trial hearings. When the trial was well under way, the trial court granted appellant’s request to personally cross-examine the state’s witnesses.

When the state rested its case, the trial court asked, out of the jury’s presence, whether the defense had any witnesses. Appellant then, for the first time, requested that he be allowed to subpoena witnesses. The trial court denied his request because it was too late. Appellant did not testify and no other evidence was adduced on his behalf.

The trial court refused to allow appellant to argue his case to the jury unless he first testified under oath. Appellant declined to do so.

The state made its closing argument. The jury retired and returned a guilty verdict. The court imposed a ten year sentence based on the verdict.

Appellant did not appeal from the denial of defense counsel’s motion to withdraw.

In his first point on appeal, appellant contends the trial court erred in failing on its own motion to inform him at the beginning of trial of his option to proceed to trial pro se, and in failing to have him execute a written waiver of counsel pursuant to § 600.051 RSMo.1978.

These allegations were not preserved for appellate review and are raised here for the first time. Rule 29.11(d). This court has considered the merits of appellant’s contention under the plain error rule, 30.20, and finds it has no merit.

Where the defendant does not request to represent himself the court is not required voluntarily to advise him of that option. State v. McCafferty, 587 S.W.2d 611, 612 (Mo.App.1979).

The facts of this case do not require the application of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Under Faretta, a defendant has a constitutional right to conduct his own trial when he knowingly, intelligently, and in a timely fashion exercises that right. The appellant in this ease did not invoke his Faretta rights by requesting to serve as his own counsel although he was offered that option.

The trial court did not err in failing to apply § 600.051, RSMo.1978. Where an attorney is present to assist a defendant who insists on participating as co-counsel, there is no waiver or attempted waiver of counsel; § 600.051 is inapplicable. See, e.g., State v. Harper, 637 S.W.2d 170, 173[4, 5] (Mo.App.1982).

There was no manifest injustice or miscarriage of justice in the court’s failure voluntarily to allow the appellant to represent himself or to apply § 600.051.

In his second point, the defendant contends the trial court erred in conditioning the defendant’s right to offer a pro se closing argument upon waiver of his right not to testify. This contention, too, is without merit.

A pertinent portion of the trial record follows:

THE COURT: Mr. Williams, there’s been some indication you might have some idea about arguing your case. Is that— WILLIE LEE WILLIAMS, THE DEFENDANT: Yes, Your Honor, but I don’t wish to take the stand.

THE COURT: You don’t wish to take the stand?

WILLIE LEE WILLIAMS, THE DEFENDANT: No, sir.

THE COURT: Well, unless you take the stand and testify, I am not going to let you argue your case.

WILLIE LEE WILLIAMS, THE DEFENDANT: Well, I just want the record to show that I am not waiving my argument, but I don’t wish to take the stand.

THE COURT: Okay.

MR. LARREW: I think the record should further reflect that Mr. Harris is available and could make the argument for the defendant.

THE COURT: Yes, but the defendant has indicated he doesn’t want Mr. Harris to make it. He doesn’t want to waive it, but he doesn’t want to testify.

MR. LARREW: I just want to make the record clear, somebody is available to make the record for the defendant.

THE COURT: That’s right. You don’t want Mr. Harris to make the argument for you?

WILLIE LEE WILLIAMS, THE DEFENDANT: There’s nobody available, because he’s not here representing me, so how can—

THE COURT: Well, he is here presently. As far as you are concerned, he does not represent you and you do not want him to make the argument for you?

WILLIE LEE WILLIAMS, THE DEFENDANT: Right.

THE COURT: You want to waive the argument, but you don’t want to testify. WILLIE LEE WILLIAMS, THE DEFENDANT: Correct.

The last exchange between the appellant and the trial court would indicate that appellant did indeed affirmatively waive the argument. Whether or not he meant to waive it when he said, “Correct,” he in effect waived it when he refused to allow defense counsel to sum up.

The defendant in a criminal case has a Sixth Amendment right to a closing argument. Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); United States v. King, 650 F.2d 534 (4th Cir.1981); see also State v. Page, 21 Mo. 257, 259 (1855). In Herring v. New York, United States v. King, and State v. Page, however, the defendant was represented by counsel who was denied or restricted in the opportunity to address the jury. In the case under review appellant’s counsel’s opportunity to make the closing argument was not denied or restricted in any way except by the appellant himself.

That appellant wished to make his own closing argument is not necessarily determinative. If appellant had asserted his right to self-representation (see Faretta v. California, supra,) the trial court would have erred in denying appellant the right to make a final argument. Appellant, however, did not exercise this right.

The request to address the jury, coming after a trial in which appellant was represented by counsel, was in effect a request for hybrid representation, a combination of self-representation and assistance of counsel. Criminal defendants, however, have no constitutional right to both types of representation. United States v. Weisz, 718 F.2d 413, 426 n. 72 (D.C.Cir.1983). Instead, whether to allow hybrid representation is discretionary with the trial court. United States v. Bennett, 539 F.2d 45, 49[1] (10th Cir.1976).

In Ross v. State, 53 Md.App. 397, 453 A.2d 828 (1983), the appellate court held that no abuse of discretion occurred where the trial court refused the defendant’s request, made after the prosecution attorney had concluded the opening portion of the state’s final argument, to address the jury on his own behalf.

Similarly, in State v. Carr, 13 Wash.App. 704, 537 P.2d 844 (1975) the court held, “If a criminal defendant is represented by counsel and counsel is afforded a full opportunity to argue to the jury, then whether the defendant will be permitted to make a separate, pro se closing argument is a matter within the discretion of the trial court.” 537 P.2d at 850[17, 18]. No abuse of discretion was found. Id. The reasoning in Ross v. State and State v. Carr is persuasive.

To allow the appellant to make his own closing argument would be tantamount to permitting him to testify without being under oath. Inasmuch as appellant, being represented by counsel, had no right to make his own closing argument, the trial court refused to allow this.

A trial judge must be allowed to control his courtroom. State v. Johnson, 499 S.W.2d 371, 374[5, 6] (Mo.1973); State v. Elbert, 471 S.W.2d 170, 173[3, 4] (Mo.1971). Here the judge was faced with the unusual situation in which the appellant stubbornly and irrationally interfered with and restricted able counsel’s representation. Appellant’s motives are unknown, although it was obvious he wanted to delay the trial.

Appellant was wise in the ways of trials. He cited statutes by number and referred to past cases in which he had been found guilty by a jury. He tried to influence both his counsel (successfully) and the court (unsuccessfully) in the conduct of the trial. Counsel did the best he could under the circumstances.

Appellant had the right to be represented. If he interferes with that representation, as he did here, he must accept the consequences. To remand this case would only serve to interfere, however slightly, with the administration of justice and the public interest. It would also serve as a signal for other defendants to go and do likewise.

The trial court afforded appellant’s counsel a full opportunity to make a closing argument, but appellant rejected this opportunity. The trial court, in extending to appellant the additional opportunity to address the jury pro se provided that he take the witness stand, gave appellant more than that to which he was constitutionally entitled.

The courts in Ross v. State and State v. Carr found no abuse of discretion where the trial court denied outright the defendant’s request to make a pro se closing argument. This court finds no abuse of discretion in the case under review.

The judgment is affirmed.

STEWART, J., concurs. KELLY, P.J., concurs in part and dissents in part.