State v. Lowery ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 122,787
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
LAJUAN SAMMIE LOUIS LOWERY,
Appellant.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; MICHAEL D. GIBBENS, judge. Opinion filed January 14,
2022. Affirmed in part, reversed in part, and remanded with directions.
Reid T. Nelson, of Capital and Conflicts Appeals Office, for appellant.
Megan Williams, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., MALONE, J., and BURGESS, S.J.
PER CURIAM: After biting two police officers while he was being apprehended for
stealing a carton of cigarettes and a soda from a convenience store, Lajuan Sammie Louis
Lowery was convicted of felony battery on a law enforcement officer, interference with a
law enforcement officer, and theft. The district court permitted Lowery to represent
himself, even though he displayed some strange behavior and had been previously
diagnosed with schizophrenia. On appeal, Lowery argues the district court committed
two instructional errors by failing to give instructions on the lesser included offense of
misdemeanor battery on a law enforcement officer and the defense of mental disease or
defect. He also asserts the court erred by permitting Lowery to represent himself because
he was not competent to do so, and further contends that his waiver of his right to counsel
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was not knowingly and intelligently made. We affirm in regard to the issues pertaining to
the claim of instructional error, and we reverse and remand for further proceedings in
regard to the issue of waiver of right to counsel.
FACTUAL AND PROCEDURAL BACKGROUND
On April 24, 2019, two Leavenworth County police officers responded to a call
from a Family Dollar store, where a man had just taken a carton of cigarettes, a bottle of
Coke, and some assorted junk food without paying. The Family Dollar employee told the
officers that the man was wearing a green football jersey and informed them of the
direction he headed, having left the store on foot.
Two other officers, who were already in the area for an unrelated matter and were
stationed in an unmarked police car, observed the man in the green jersey stop on the
porch of a house down the street from the Family Dollar. The officers who responded to
the 911 call at the Family Dollar arrived soon after. The man, later identified as Lowery,
saw the officers in the patrol car and began to run. As he ran through a grassy field,
Lowery tripped and fell to the ground, and one of the pursuing officers went down on top
of him. The officer immediately rolled Lowery over on his back and put him in an "arm
bar." Lowery did not resist at first, but he soon escaped from the officer's grip, biting his
arm, and attempted to stand up. The officer shouted, "'He just bit me.'" He then called for
the other officers to tase Lowery, and another officer promptly attempted to do so. When
she raised her Taser to stun Lowery, he grabbed her hand and bit her too, breaking the
skin and causing her to bleed.
Once Lowery was tased, the officers were able to get him under control and placed
him under arrest. After the officers had Lowery in handcuffs, they searched him and
found the carton of cigarettes, two candy bars, a BodyArmor sports drink, and a bottle of
cherry Coke. Several officers noted Lowery's "bizarre" behavior and commented that he
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seemed intoxicated. One officer recalled that Lowery gave him a strange name when
asked his identity, stated his date of birth was 01/01/0001, and explained that he was dead
and that his "gravestone was in a cemetery." The second officer that Lowery bit
disagreed, claiming Lowery's behavior was not "bizarre" and was much like any other
encounter where a suspect attempts to evade arrest.
The State charged Lowery with one count of felony battery on a law enforcement
officer, one count of misdemeanor battery on a law enforcement officer, interference with
law enforcement, and theft. At his first appearance, Lowery informed the court that his
real name was "Samuel Louis," that he was born in the 1800s, was Egyptian, and that he
required a Bible to verify his identity. Lowery explained, "we need to get my identity
straight, Your Honor, because they be doing the wrong name down, and I can't be
responsible for anything other than the one Sammie Louis, because I'm not him."
After his first appearance, Lowery's appointed counsel requested an evaluation to
determine Lowery's competency to stand trial. He had been similarly evaluated for
another case the year before. The prior diagnostic evaluation noted that Lowery suffered
from schizophrenia, that he claimed to experience visual and auditory hallucinations from
a young age, and that he appeared to suffer from "Magical Thinking, Paranoia, Racing
Thoughts, Ruminative Thoughts, Disorganized Speech, [and] Delusion." The evaluation
in this case noted that Lowery was aware of the charges against him—he knew the
charges included two counts of battery against a law enforcement officer. Moreover, the
evaluation explained that Lowery did not appear to have any cognitive impairment,
understood "basic legal concepts," and was capable of assisting in his own defense.
Although the report noted the prior diagnosis of schizophrenia, it ultimately concluded
that Lowery was competent to stand trial. The court accepted the findings outlined in the
evaluation and found Lowery competent to stand trial.
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Although he was appointed counsel, Lowery proceeded to file several pro se
motions, including a motion of dismissal, a motion to reduce charges, a motion for a
change of venue, a motion to impeach, a motion for work release, a motion to request a
hearing, and a motion requesting discovery. Lowery also sent the court letters about his
case. At his preliminary hearing Lowery attempted to raise these motions, and he
specifically attempted to raise the defense of intoxication. The court informed him that
the issue could not be addressed at that point. The court also denied Lowery's pro se
motion to dismiss and proceeded with the hearing. After hearing the testimony of the
officer who suffered a small laceration from Lowery's bite, the court found probable
cause to support the felony battery on a law enforcement officer charge and bound
Lowery over for trial.
About two weeks before the trial was set to begin, Lowery decided that he wanted
to represent himself. The State did not appear at the hearing on the matter because "they
were in a meeting and they didn't have anybody available." Upon taking up Lowery's
request to represent himself, the district court advised him against doing so, noting that
the same rules of evidence and procedure would apply to him and that the court would
not aid him in his defense. The court further discussed with Lowery certain aspects of
self-representation, such as whether to waive a preliminary hearing, how to plead,
whether to have a jury trial, and whether or not he wanted to testify. Lowery confirmed
that he understood. The court then asked Lowery how much schooling he had completed,
to which Lowery stated he had graduated from high school and completed some college
courses. Lowery also acknowledged that he had been previously diagnosed with paranoid
schizophrenia, which he described as causing "[o]verthinking, just, um, thinking." But
Lowery confirmed that he knew where he was, knew the date, and knew how long he had
been held in the county jail. Lowery then waived his right to counsel, "[e]xcept for
standby." The district court found Lowery's waiver was knowingly and voluntarily made
and permitted him to represent himself.
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After the court accepted his waiver, Lowery raised concerns about the conditions
in the jail, noting that the building was moldy and was "eating away" at him. Lowery also
requested that he be granted access to the internet or a law library and asked for "a
evidence hearing." The court responded: "Well, we're gonna have an evidentiary hearing,
Mr. Lowery, it's called a trial."
On the morning of trial, the State requested that the court reconsider its ruling
permitting Lowery to represent himself. The rationale behind the State's request was to
ensure Lowery's waiver had been properly taken. The court informed the State that "[t]he
ruling that the Court made stands. Mr. Lowery can represent himself. The Court made at
least a 15-minute inquiry, and followed a format that the Court has laid out based on case
law that has been laid out by our appellate courts probably over the last 20 years." The
court further explained that during the waiver proceedings it "went through [Lowery's]
age, his education, his mental health status, [and] warned him that he should not represent
himself."
Nonetheless, the court agreed to walk through the waiver of counsel and its
warning about self-representation with Lowery again. The court then conducted a second
waiver of counsel colloquy, receiving similar answers from Lowery as it had during the
prior hearing. When the court advised Lowery that it was again firmly recommending
that he choose not to represent himself, Lowery responded: "Yes, sir. I mean, this is
something I want to do. It's like a lifetime dream is to overcome something that's standing
in your path. Sometimes you have to take matters into your own hands. So I feel this is a
very good learning experience for me." The court told Lowery that it was "a little bit
concerned about [his] mental health status," and asked whether he had received any
treatment. Lowery acknowledged this concern and stated that he had paranoia,
schizophrenia, and hallucinations. He also explained that he intended to pursue a defense
based on his mental health. Lowery stated that he had been found competent during his
evaluation and believed that he could adequately represent himself, "as long as no one's
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trying to harm me or like—you know, as long as I'm not threatened, . . . it doesn't—it
doesn't trigger it unless like I'm in harm. See like. So I feel pretty comfortable." After
listening to Lowery's responses, the district court reaffirmed its decision, finding Lowery
knowingly and voluntarily waived his right to counsel. The State did not object to the
court's decision but noted its opposition to Lowery presenting a mental disease or defect
defense because he had not provided written notice. The court believed that Lowery had
put the State on notice with his prior pleadings but noted "we'll take that up as we go
along in the trial."
Upon the resolution of the self-representation issue, Lowery proceeded to
represent himself throughout the pretrial and trial proceedings. He conducted voir dire,
gave an opening statement, cross-examined the State's witnesses, argued several motions,
handled the jury instruction conference, and gave a closing argument. Lowery also called
several witnesses to the stand, before testifying himself with the aid of his appointed
standby counsel.
On the second day of trial, the State renewed its objection to Lowery presenting a
mental-health based defense. The State asserted that Lowery had filed several motions in
which he noted that he intended to present evidence of intoxication as a defense. Those
motions did not mention the defense of lack of intent due to mental disease or defect.
Upon reviewing Lowery's prior filings and letters, the court agreed and ruled that Lowery
could not present a mental disease or defect defense because he failed to provide written
notice, did not have an expert witness to testify on the matter, and failed to establish good
cause.
After hearing the evidence and the parties' arguments, the jury found Lowery
guilty of felony battery on a law enforcement officer, interference with a law enforcement
officer, and theft. The jury acquitted him of the misdemeanor battery on a law
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enforcement officer charge. The district court sentenced Lowery to 19 months'
imprisonment followed by 12 months of postrelease supervision.
Lowery appeals.
ANALYSIS
I. Did the court err in failing to instruct on the lesser included offense of battery on a
law enforcement officer?
Lowery argues the district court erred in refusing to grant his request to give an
instruction on the lesser included offense of misdemeanor battery on a law enforcement
officer in regard to count 1 of felony battery on a law enforcement officer (the charge
related to the second officer he bit). Ultimately, the jury convicted Lowery of the felony
battery on a law enforcement officer charge. Lowery claims the court's failure to instruct
on this lesser included offense was an error and requires reversal of this conviction and a
retrial.
At the instruction conference, Lowery requested a misdemeanor battery of a police
officer instruction based on the degree of harm the officer had suffered—he argued that
the officer's bite wound was not severe enough to constitute bodily harm. As such, his
claim of error has been preserved for this court's review. This court must next determine
if the requested instruction was legally and factually appropriate, and if so, whether the
failure to give the requested instruction requires reversal. See State v. Williams, 308 Kan.
1439, 1451, 430 P.3d 448 (2018).
Felony battery against a law enforcement officer is defined by K.S.A. 2020 Supp.
21-5413(a)(1), (c)(2)(B) as "[k]nowingly or recklessly causing bodily harm" to a
"[u]niformed or properly identified state, county or city law enforcement officer."
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Whereas misdemeanor battery against a law enforcement officer is defined by K.S.A.
2020 Supp. 21-5413(a)(2), (c)(1)(B) as "knowingly causing physical contact with another
person when done in a rude, insulting or angry manner" to a "[u]niformed or properly
identified state, county or city law enforcement officer." While there are several
distinctions between the two crimes, misdemeanor battery on a law enforcement officer is
a lesser included offense of felony battery on a law enforcement officer because it is a
"lesser degree of the same crime." See K.S.A. 2020 Supp. 21-5109(b)(1). Accordingly,
the instruction was legally appropriate.
Even if an instruction for an offense of a lesser crime is legally appropriate, a
district court's failure to instruct on the lesser crime is only erroneous if the instruction
was also factually appropriate under K.S.A. 22-3414(3). See State v. Walker, 308 Kan.
409, 424-25, 421 P.3d 700 (2018). And "[a]n instruction on a lesser included crime is
factually appropriate if there is 'sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction.'" State v.
Becker, 311 Kan. 176, 183, 459 P.3d 173 (2020). District courts have a duty to issue
instructions on a lesser included offense that is established by the evidence, even if the
evidence is weak or inconclusive. See K.S.A. 2020 Supp. 22-3414(3); State v. Maestas,
298 Kan. 765, Syl. ¶ 6, 316 P.3d 724 (2014).
For the lesser included offense of misdemeanor battery on a law enforcement
officer to be factually appropriate, the essential question is whether there was evidence
that Lowery knowingly caused physical contact or bodily harm. Here, the district court
denied Lowery's request for the lesser included instruction because it found there was
"ample evidence to support the instruction as to bodily harm." The court did not
specifically address whether the evidence could have supported a finding of physical
contact. Lowery contends that the officer only suffered a small scratch from his bite, and
that this scratch could not constitute bodily harm. The State produced testimony from
several officers about the bite wound as well as a picture of the wound the officer
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suffered, which shows that Lowery broke the skin and caused a small laceration. The
officer testified that she went to the hospital due to the potential exposure to Lowery's
bodily fluids through the bite. While the evidence supported that Lowery caused an injury
to the second officer's body by biting her, there was also evidence that he caused physical
contact. That said, physical contact is, in most cases, a precursor of bodily harm. See
State v. O'Connor, No. 118,519, 2019 WL 1868327, at *6 (Kan. App. 2019) (unpublished
opinion).
The injury to the officer shows that Lowery broke the officer's skin, causing a
laceration and her to bleed. This evidence is uncontested. While Lowery did cause
physical contact, that contact was a precursor to bodily harm. Lowery's request for an
instruction on misdemeanor battery of a law enforcement officer was not factually
appropriate, and the district court did not commit error by not giving that instruction.
II. Did the court err in failing to instruct on the defense of mental disease or defect?
Lowery contends the district court erred by not instructing the jury on the defense
of mental disease or defect. Despite its framing as an instructional error, Lowery's
argument is more akin to a claim that the district court erred in denying him the right to
present a mental disease or defect defense. Lowery concludes that the court's error was a
denial of his fundamental right to present a defense. In fact, outside of stating the
standard of review, Lowery does not provide substantive analysis related to the court's
alleged instructional error.
a. The court's decision to disallow the defense of mental disease or defect
A district court's ruling that a defense of mental disease or defect could not be
relied upon is reviewed for an abuse of discretion. State v. Buehler-May, 279 Kan. 371,
378, 110 P.3d 425 (2005); see State v. Boyd, 216 Kan. 373, 379, 532 P.2d 1064 (1975)
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(reviewing district court's decision to disallow an insanity defense pursuant to K.S.A. 22-
3219 for an abuse of discretion). But "[a] claim that a defendant was denied the
constitutional right to present a defense raises a question of law subject to de novo
appellate review." Maestas, 298 Kan. at 780. While a defendant is entitled to present their
theory of defense, "that right is subject to statutory rules and caselaw interpreting the
rules of evidence and procedure." 298 Kan. at 781. Our Kansas Supreme Court has held
that "the notice requirements of K.S.A. 22-3219 do not deprive a defendant of his or her
constitutional due process right to defend against the State's case or the constitutional
right to a fair trial." Buehler-May, 279 Kan. at 381.
In Kansas, it is "a defense to a prosecution under any statute that the defendant, as
a result of mental disease or defect, lacked the culpable mental state required as an
element of the crime charged. Mental disease or defect is not otherwise a defense."
K.S.A. 2020 Supp. 21-5209. To present the defense at trial, however, a defendant must
serve written notice of their intent to argue that they lacked the requisite mental state
element due to a mental disease or defect with the prosecuting attorney and the court.
K.S.A. 22-3219(1). That notice "must be served and filed before trial and not more than
30 days after entry of the plea of not guilty to the information or indictment." K.S.A. 22-
3219(1). A district court may permit a later filed notice for "good cause shown." K.S.A.
22-3219(1). The statute applies "whenever a defendant seeks to prove lack of the required
mental state as a result of a mental disease or defect." Maestas, 298 Kan. at 782.
Lowery did not specifically raise the matter of a mental disease or defect defense
until the first day of trial. That morning, the court conducted a second waiver of counsel
colloquy and inquired about Lowery's mental health condition—ostensibly to ensure that
his condition would not affect his ability to represent himself. Lowery responded that he
had not received any treatment since he entered the county jail, but that he "did request
mental health being a defense [at pretrial]" and stated that "all parties have knowledge of
my—of my mental health conditions." Lowery then requested a jury instruction based on
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"Kansas Statute 22-3219, defense of lack of mental state." The court informed Lowery
that instructional issues would be taken up after all the evidence was presented and
stated: "If there is evidence that would indicate that that instruction should be given, I
will give it." The State argued that Lowery should be disallowed from presenting a
mental disease or defect defense because he had not provided statutorily required written
notice. Lowery disagreed, contending he had provided notice in several of his pro se
filings and letters to the court. The court initially concluded that Lowery had "put the
State on notice by prior pleadings, even though it's not exactly the way a lawyer would
have done it." But it noted that "normally when you have a lack of culpability defense
due to mental deficiency, you have to have expert testimony in order to show that in
court. And we'll take that up as we go along in the trial."
As the trial began, Lowery mentioned his mental health and referenced his bizarre
behavior during his struggle with the police several times. During voir dire, Lowery
spoke to the jury about mental health issues, noting "that's going to be a big factor in this
issue." In his opening statement, Lowery described being in "a fairytale land" and having
a "mental breakdown" during the incident and explained that he had "a mental history
[and] mental issues, too." He also claimed that he had been intoxicated during the
altercation with the police and explained:
"That's why I chose to represent myself. So you can see me in my right state of
mind, and how important it is to push off all distractions to hear it and understand all the
doubts in this case and see—and see how these cops failed to follow protocol when a
person is having a mental breakdown."
As the case continued, the State began raising objections as Lowery questioned witnesses
about whether his behavior was bizarre or odd—again arguing that Lowery had not
provided adequate notice because his prior letters and pleadings did not indicate that he
would rely on the defense of mental disease or defect.
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The court refrained from ruling on the matter until the second day of trial. After
reviewing Lowery's pleadings and the pretrial order, the court found Lowery had not filed
written notice and that the pretrial order specifically stated that he would not be relying
on the defense of "insanity" but was relying on "[i]ntoxication." Lowery claimed that he
had given the State "verbal—oral notice at pretrial that we would be using mental—
mental defense," and further contended that the State "will be at fault for not taking the
proper procedures when [it] knew that mental defect was—was a logic—was logical in
this case." Lowery's pretrial filings only indicated that he was going to present the
defense of intoxication and had been rendered unconscious during the struggle with the
police. Lowery then argued that he had established good cause to permit the presentation
of a mental health defense because of his "bizarre behavior" and evidence that he "didn't
even know the present time or day at the time of the offense." The court concluded that
Lowery failed to provide written notice and had not established good cause. The court
also noted that Lowery did not have an expert ready to testify regarding his mental
illness.
In order to succeed on appeal, Lowery must demonstrate that the district court
abused its discretion in precluding him from presenting a mental disease or defect
defense. That is, he must show "that the trial court's decision was 'arbitrary, fanciful, or
unreasonable. If reasonable persons could differ on the propriety of the action taken by
the trial court, then it cannot be said that the trial court abused its discretion.'" Buehler-
May, 279 Kan. at 378-79.
Lowery did not file a written notice within the applicable statutory timeline prior
to trial, nor did he make a showing of good cause after that statutory window had closed.
Although the court initially thought Lowery had put the State on notice with his prior
pleadings, it later reversed its position after reviewing the State's motion and Lowery's
letters and pleadings. On appeal, Lowery argues the pretrial letters he had written
constituted sufficient written notice. These letters did not actually state that Lowery
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intended to assert the defense that he lacked the requisite mental state due to a mental
disease or defect. Lowery did not attempt to file a written notice at trial. The court did not
make an error of fact or law, and it did not act unreasonably in concluding Lowery failed
to provide written notice to the State under K.S.A. 22-3219.
Lowery argues that he nevertheless established good cause for the district court to
excuse his failure to file written notice and should therefore have been permitted to
present a mental disease or defect defense. At trial, Lowery contended that the police
reports of his "bizarre behavior besides drunkenness or intoxication" constituted a
sufficient basis to find good cause to allow the defense. On appeal, Lowery asserts that he
showed good cause because his mental deficiencies were evident and because he was
blindsided by the court's ruling allowing him to discuss his mental health during voir dire
and his opening statement, and even questioned several witnesses about his behavior on
the first day of trial. Lowery essentially argues that the prejudice resulting from having
the defense taken away from him midtrial constitutes good cause in and of itself. Lowery
also contends this prejudice was amplified because he had informed the court he intended
to argue that he acted unconsciously. But, as noted above, Lowery did not assert his
intention to argue that his mental illness presented him from forming the requisite intent
for the charged crimes, and the admission of such evidence is only permissible under the
statutory framework of K.S.A. 22-3219. Even if there was some indication that Lowery
intended to rely on his mental state as a defense, a showing of good cause was required
due to the lack of notice. Lowery's prejudice-based argument does not establish good
cause.
While the district court could have made a ruling on the admissibility of this
evidence earlier in the trial, its ruling was not based on a mistake of fact or law in
determining Lowery failed to provide written notice. Moreover, it cannot be said that its
decision was arbitrary and unreasonable. Lowery does not address the fact that he did not
have an expert witness prepared to testify regarding his mental disease and how it
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negated his ability to form the culpable mental state required as an element of the crimes
charged. The only proffer of evidence Lowery made was that several of the police
officers thought he had acted strangely. Although some evidence was introduced
regarding his strange behavior, and the pretrial evaluation noted several mental health
issues, Lowery did not have evidence that would have provided a sufficient basis to
properly assert the elements of a mental defect defense. Ultimately, Lowery's belief that
he had provided notice and his argument that he suffered prejudice as a result of the
disallowance of the defense did not establish good cause.
The district court did not abuse its discretion when it denied Lowery's request for a
mental defect defense on the first day of trial because he failed to provide statutorily
required written notice under K.S.A. 22-3219 and had no expert witness to support the
defense. The court did not act unreasonably in finding Lowery failed to establish good
cause to excuse his failure to provide notice. Because the court did not abuse its
discretion, its application of the procedural notice requirement of K.S.A. 22-3219 did not
infringe on Lowery's right to present a defense.
b. The court's failure to instruct on the defense of mental disease or defect
Since Lowery frames the issues relating to his claim of a mental health defense as
an instructional error, we will address this aspect of his appeal.
This court analyzes jury instruction issues under a three-step process:
"'(1) determining whether the appellate court can or should review the issue, i.e., whether
there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal;
(2) considering the merits of the claim to determine whether error occurred below; and
(3) assessing whether the error requires reversal, i.e., whether the error can be deemed
harmless.'" State v. McLinn, 307 Kan. 307, 317, 409 P.3d 1 (2018).
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The first and third steps are interrelated. Whether a party preserved a jury instruction
issue will affect the reversibility inquiry—if a party fails to object or request an
instruction, K.S.A. 22-3414(3) limits this court's review to whether the failure to give the
instruction constitutes clear error. 307 Kan. at 317-18.
Here, Lowery did not request instructions on the defense of mental disease or
defect after the court ruled he was not allowed to rely on the defense. But he did request
the instruction on the morning of trial.
Under the second step, this court must determine whether an error occurred, i.e., if
the instruction was legally and factually appropriate. Williams, 308 Kan. at 1451.
Lowery's argument focuses almost entirely on the fact that certain evidence of his odd
behavior and mental health issues was introduced during the first day of trial, i.e., that the
instruction was factually appropriate. Assuming the instruction would have been factually
appropriate, it was not legally appropriate under the circumstances. Because the court
concluded that Lowery failed to provide notice and had disallowed evidence of his
mental defect or disease, such evidence was not admissible.
Evidence of mental illness is admissible only to the extent it relates to the
defendant's ability to form the requisite intent to commit the crime, and a defendant is
only permitted to present such evidence upon complying with K.S.A. 22-3219(1). Here,
the district court did not abuse its discretion in denying Lowery's request to present such
a defense. Accordingly, it would not have been legally appropriate to instruct the jury on
a defense that Lowery was not entitled to rely on. The district court did not err by not
providing the jury with an instruction on the defense of mental disease or defect.
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III. Did the court err in determining that Lowery was competent to represent himself?
Lowery argues the district court erred by allowing him to represent himself
because his mental illness prevented him from meeting the competency standard set forth
in Indiana v. Edwards, 554 U.S. 164, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008). He
asserts that although he was competent to stand trial, he was not competent to represent
himself, and the district court abused its discretion in permitting him to do so.
The right to assistance of counsel and the related right to self-representation are
legal questions subject to de novo review. State v. Bunyard, 307 Kan. 463, 470, 410 P.3d
902 (2018). But this court reviews a district court's decision regarding a defendant's
mental competency to represent themselves for an abuse of discretion, keeping in mind
the constitutional principles that decision implicates. State v. Burden, 311 Kan. 859, 866,
467 P.3d 495 (2020) ("[W]hen applying the facts to a standard to determine mental
competency to represent oneself, we review the trial record under an abuse of discretion
standard."). A judicial action constitutes an abuse of discretion if (1) it is arbitrary,
fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error
of fact. State v. Crosby, 312 Kan. 630, 635, 479 P.3d 167 (2021).
Because the right to counsel and the right to self-representation present an
"obvious potential tension," district courts "'must indulge "every reasonable presumption
against waiver" of the right to counsel.'" Bunyard, 307 Kan. at 470. Yet, "[w]hether a
lawyer could better represent a defendant . . . is not the question for the court to decide."
307 Kan. at 470-71. And a violation of the right to self-representation is structural error,
not amenable to harmless error analysis. 307 Kan. at 471.
In Edwards, the United States Supreme Court held that the basic threshold where a
district court may rightly deny a defendant's request to waive counsel arises where a
defendant has a severe mental illness. 554 U.S. at 175, 178 (using term "'mental
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derangement'"). The Edwards Court further noted that states are permitted to use a higher
competency standard for self-representation than the standard used to determine a
defendant's competency to stand trial. 554 U.S. at 178. Kansas has not adopted a
heightened competency standard for self-representation. In Burden, the Kansas Supreme
Court acknowledged the "severe mental illness" threshold but declined "to define the
condition that might induce a trial court to take the step of refusing a defendant's request
to waive counsel." 311 Kan. at 869; see also State v. McCall, 38 Kan. App. 2d 236, Syl.
¶ 1, 163 P.3d 378 (2007) ("No separate finding of mental competence, apart from
competence to stand trial, is necessary before a defendant may exercise the right of self-
representation."). In part, this is because the judge who presides over the competency
hearings "'will often prove best able to make more fine-tuned mental capacity decisions,
tailored to the individualized circumstances of a particular defendant.'" Burden, 311 Kan.
at 866 (quoting Edwards, 554 U.S. at 177).
The question this court must determine then is, considering the particular facts and
circumstances of Lowery's mental capacity, did the district court abuse its discretion
when it found he was competent to represent himself at trial?
It is undisputed that Lowery at the very least had been previously diagnosed with
schizophrenia and that he displayed some peculiar behavior both before and after he was
permitted to represent himself. On appeal, Lowery contends these two factors were a
"beacon" that should have convinced the district court that he could not handle the task of
representing himself.
Although Lowery, like Edwards, was diagnosed with schizophrenia and showed
signs of delusional thinking, he was not hospitalized or taken for treatment during the
pendency of the case, although he did request treatment while in county jail. In fact, the
evaluation performed by The Guidance Center noted that despite Lowery's schizophrenia
diagnosis, the hallucinations, and his bizarre behavior, he did not appear to have any
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cognitive impairment, appeared to understand "basic legal concepts," and was competent
to stand trial. During both the first and second waiver colloquies, the district court raised
concerns about Lowery's mental health. Lowery acknowledged that he had paranoia,
schizophrenia, and hallucinations. But he described the effects of his mental illness as
causing "[o]verthinking," and he reiterated his desire to represent himself. Lowery further
explained that he had been found competent after his evaluation and that he believed he
could adequately represent himself so long as he did not feel threatened. While Lowery
displayed some strange behavior, he was able to appropriately respond to the court's
questions about what self-representation would entail and the consequences of waiving
counsel. He remained steadfast in his desire to represent himself throughout. The record
shows that the district court engaged with Lowery, observing and evaluating his behavior
throughout these waivers. Although Lowery suffered from mental illness, it is not clear
that these issues met "the basic threshold set out in Edwards for the circumstance where a
state might deny the constitutional right of self-representation," i.e., severe mental illness.
Burden, 311 Kan. at 869; see State v. Warren, No. 110,949, 2015 WL 4879034, at *10
(Kan. App. 2015) (unpublished opinion) (rejecting Edwards-based competency claim
after concluding the record "has not shown any incapacity due to mental illness or
incompetency"). Although the competency evaluations noted some mental health
concerns, by and large the record does not show that Lowery was incompetent—that is, it
does not appear that Lowery's mental illness was so debilitating that he was unable to
conduct the necessary trial proceedings.
Lowery argues that along with his diagnoses, his behavior should have led the
district court to emphatically deny his right to self-representation. The record shows that
Lowery displayed some strange behavior. The State points out that despite this bizarre
behavior, Lowery was able to conduct voir dire, argue pretrial motions, give an opening
statement, cross-examine witnesses, call his own witnesses, handle the jury instruction
conference, and give a closing argument. Lowery was also able to organize an
intoxication defense, argue points of law, and file numerous motions. While many of
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these efforts proved unsuccessful, a "'defendant's "technical legal knowledge" is "not
relevant" to the determination whether he is competent to waive his right to counsel.'"
Burden, 311 Kan. at 865. Although Lowery plainly displayed some eccentricities and
frequently made odd statements, he was able to obtain an acquittal on one of the charges
against him, suggesting the jury did not find him completely ineffective as counsel. In
other words, Lowery proved able to carry out the basic tasks needed to present his
defense and conduct trial proceedings.
District courts are tasked with the difficult duty of making a realistic account of a
defendant's mental capacities when determining whether to permit or deny the right to
self-representation. Here, Lowery's schizophrenia diagnosis and his sometimes-bizarre
behavior perhaps made the decision a close one, but Lowery has not shown that the
district court abused its discretion by finding that he was sufficiently competent to
represent himself.
IV. Did the court err in allowing Lowery to represent himself when it failed to set forth
the charges, penalties, or defenses during the waiver of counsel colloquy?
Finally, Lowery argues that he did not knowingly and intelligently waive his right
to counsel because the district court failed to adequately advise him of all of the
appropriate information before accepting his waiver of counsel.
Neither the United States nor Kansas Constitutions explicitly provide for a right of
self-representation. That right has been implied from the right to counsel granted in the
Sixth Amendment to the United States Constitution. Faretta v. California, 422 U.S. 806,
821, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). To exercise the right to self-representation,
a defendant must make a knowing and voluntary waiver of the right to counsel. 422 U.S.
at 835. In other words,
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"'[a] criminal defendant who before trial clearly and unequivocally expresses a wish to
proceed pro se has the right to self-representation after a knowing and intelligent waiver
of the right to counsel. A knowing and intelligent waiver requires that the defendant be
informed on the record of the dangers and disadvantages of self-representation. The
choice is to be made "'with eyes open.'"' [Citations omitted.]" Bunyard, 307 Kan. at 470.
In Burden, our Kansas Supreme Court reiterated a three-step framework for
district courts to utilize when determining whether a defendant's waiver is knowing and
intelligent. 311 Kan. at 863 (citing State v. Buckland, 245 Kan. 132, 138, 777 P.2d 745[1989]).
"First, a court should advise the defendant of the right to counsel and to appointed
counsel if indigent. Second, the defendant must possess the intelligence and capacity to
appreciate the consequences of his or her decision. And third, the defendant must
comprehend the charges and proceedings, punishments, and the facts necessary for a
broad understanding of the case. [Citation omitted.]
"To assure the defendant appreciates the consequences of waiving representation
by counsel, Buckland suggests the court explain that the defendant will be held to the
same standards as an attorney; that the judge will not assist in or provide advice about
presenting a defense; and that it is advisable to have an attorney because many trial
techniques, evidence rules, and the presentation of defenses require specialized training
and knowledge." Burden, 311 Kan. at 863-64.
The Burden court went on to explain that a district court is not required to use any
specific checklist. Rather, a district court should "weigh whether a defendant has
knowingly and intelligently waived the right to counsel by examining the circumstances
of each case." 311 Kan. at 864; State v. Armstrong, 240 Kan. 446, 453, 731 P.2d 249(1987). Finally, the Buckland court stated that for a district court to obtain a knowing and
intelligent waiver of the right to counsel, the trial judge's inquiry should show that the
defendant "'comprehends the nature of the charges and proceedings, the range of
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permissible punishments, and any additional facts essential to a broad understanding of
the case.' [Citation omitted.]" (Emphasis added.) 245 Kan. at 138.
This court exercises unlimited review over questions involving the interrelated
rights to counsel and self-representation. Bunyard, 307 Kan. at 470. And the
determination of whether the waiver of the right to counsel was knowingly and
intelligently made depends on the facts and circumstances of each case. Buckland, 245
Kan. at 137. Here, Lowery contends the district court's failure to inform him of the
charges, penalties, and potential defenses during the waiver of counsel colloquy rendered
his waiver invalid in that his waiver was not knowingly made.
In both of the district court's waiver discussions with Lowery, it advised him
against self-representation and explained that he would be held to the same rules of
evidence and procedure that a lawyer would be required to follow. These admonitions are
directly derived from the first prong suggested in Buckland. The court further explained
that it could not aid Lowery in his defense and strongly advised him against representing
himself—the second prong of Buckland. Lowery acknowledged each of these
admonitions and confirmed that he still wished to represent himself. The district court
also enquired about Lowery's mental health and educational history. Lowery stated that
he graduated from high school and had completed some college, and while he
acknowledged his mental health struggles, he expressed his confidence in his ability to
represent himself.
On appeal, Lowery does not contest that he was advised of these matters, nor that
he appeared to comprehend the court's warnings about the pitfalls of waiving his right to
counsel. Rather, he contends the court's colloquy was deficient under the final portion of
the Buckland framework, specifically that the district court did not ensure that Lowery
understood the nature of the charges and proceedings, the range of punishments, and any
essential facts necessary to a broad understanding of the case. Specifically, Lowery
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asserts the court was required to read each of the charges against him, inform him that he
was facing 19 months of potential imprisonment, and advise him of all of the possible
defenses he could rely on at trial. Without being given pieces of information, Lowery
argues, there is no basis to find that his waiver was knowingly made.
Lowery appears to have understood a broad understanding of the nature of the
case despite the fact that the district court did not read him the charges or explain the
penalties as contemplated by Buckland. Prior to waiving counsel, Lowery filed numerous
pro se motions that—although ultimately fruitless—demonstrated that he understood the
nature of the proceedings and the offenses he was charged with. Among these filings,
Lowery moved to reduce the charges, to change venue, to dismiss the case, asked for
work release pending trial, and moved for discovery. Lowery further was able to provide
a list of witnesses he wished to subpoena, made requests for access to a law library to aid
in his defense, and ensured his access to proper audio/visual equipment so that he could
present his case at trial.
The State argues that while the district court did not specifically advise him of the
penalties during the colloquy, Lowery requested a nonprison sanction in his pleadings,
which suggests that he understood the potential punishment he was facing. These motions
demonstrate that despite the lack of any specific reading during the colloquy, Lowery had
a reasonably broad understanding of the nature of the case.
While Buckland discusses a reasonable "broad understanding" may suffice in
some respects in regard to a waiver, it also specifically states that a defendant must be
advised of the nature of the charges and the range of penalties. While the State argues
that Lowery was advised of the nature of the charges against him at the first appearance,
there is nothing in the record to show that Lowery was ever advised of the range of
punishments associated with those charges. The district court did an admirable job in
dealing with a situation that was outside of the ordinary. However, there is simply no way
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around the requirement that a defendant must be made aware of the range of punishments
associated with the crimes charged. Without such information, a knowing waiver cannot
be made. This case must be reversed and remanded for further proceedings. On remand,
the district court must either appoint counsel to represent Lowery, or Lowery must
knowingly and intelligently waive his right to counsel if he chooses to represent himself.
Affirmed in part, reversed in part, and remanded with directions.
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