State v. Richards , 456 N.W.2d 260 ( 1990 )

SIMONETT, Justice.

After a jury trial, defendant Leonard Joseph Richards was convicted of the first-degree premeditated murder of Robert Strat-ton and sentenced to life in prison.¹ On appeal, we conclude that defendant’s constitutional right of self-representation secured by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), was violated. We reverse, therefore, and grant a new trial.

Robert Stratton, the murder victim, was an attorney who knew defendant socially and professionally. Prior to his death, Stratton was representing defendant in federal court tax litigation in several states. In the Minnesota litigation, Strat-ton filed two affidavits to support petitions to quash summonses issued to appellant, who was listed as a director of three entities subject to the local investigation. These affidavits, apparently drafted by defendant, were fraudulent. The affiants did not exist. In December 1986 the federal district court denied the petitions to quash and issued an order making Stratton and the three entities jointly and severally liable for about $12,000 in costs and penalties.

Soon thereafter, the federal agent assigned to investigate defendant’s taxes learned that Stratton was the guarantor of a trust in which defendant was the beneficiary. Part of the trust corpus consisted of stock donated by Stratton from a corporation formed by Stratton and the defendant. The agent issued a summons directing Stratton to appear before him on February 25, 1987, with all information he possessed relating to the trust and the corporation.

On February 23, 1987, 2 days before the scheduled meeting, Stratton left his law office with defendant Richards to go to lunch. Stratton never returned. The next day the police found his corpse in the house where defendant was living with Linda Winbush and her young children. Stratton had died from a close-range gunshot wound to the back of his head.

Defendant had been living in the Win-bush home for about 11 months. A week or so before February 23, defendant told Linda to clean the basement so he could use it as an office for his paralegal work. Defendant said that he needed the office for a meeting with “clients” on February 19. A few days later defendant advised Linda that the meeting with the clients had been postponed until Monday, February 23, and that he wanted her and the children out of the house on that day. On the 22nd, defendant spray-painted the basement windows, installed latches, and covered the windows with contact paper.

On the 23rd, the day he was to meet with the “clients” and the day Stratton did not return from lunch, defendant drove Linda to her niece’s house in Blaine, where the children had been staying. He returned to pick them up at about 11:00 p.m. that night. On the way home defendant told Linda and the children not to go into the basement because an electrician had been there and there were dangerous, exposed wires. Linda noticed dark stains on defendant’s jeans, which defendant said were spots of paint. The basement door was barricaded when they arrived home.

The following day, February 24, defendant again insisted that Linda and the children leave the house. Linda had noticed what she thought was blood on a bar of soap and in the bathtub on the second floor, and fearing something terrible had happened, she put some of the blood-like substance on a tissue and took it to the police. After the police confirmed that the substance was blood, Linda told the officers about her fears and gave consent to a search of her home.

The police soon arrived at the house and, after kicking a door open to gain entry, found defendant inside. In the basement, the officers found the nude body of Robert Stratton. Defendant was arrested. There were numerous blood stains in the house, including spots on the stairway to the second floor, on the kitchen and dining room floors, and on the basement stairs. Some of the stains had recently been scrubbed methodically with a cleanser. The police recovered the jeans and shirt defendant had worn the previous night. The spots Linda had noticed on the jeans proved to be blood stains. Subsequently, the police found a recently fired gun and an expended bullet in a second floor room; both were consistent with the victim’s fatal gunshot injury. The police also recovered a 90-plus-page affidavit of Robert Stratton, partially typed, partially handwritten, and signed by Stratton. The evidence at trial showed that defendant had drafted both parts of the affidavit, which recited at great length defendant’s business transactions giving rise to his tax problems and put the blame for those problems on others. While there is additional inculpatory physical and testimonial evidence, it need not be discussed in light of the disposition of this appeal. Suffice it to say that the evidence at trial was ample to sustain the conviction.

We must now, however, outline some of the procedural history that occurred after defendant’s arrest on February 24, 1987, and his trial 25 months later, as this information is pertinent to the dispositive issue.

Defendant, who was unable to post bail, was represented by a succession of attorneys. Except for his first attorney (who was on the case for only a week) and his third attorney (with no criminal law experience), defendant found fault with the attorneys appointed to represent him. His request for funds to hire his own attorney was denied. At least twice he asked to be designated “co-counsel” with his appointed counsel.

On May 11, 1988, appellant filed a pro se motion requesting a hearing to remove his attorney, then Phillip Villaume, “for cause.” Citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), appellant asserted his right of self-representation in the event the court did not consider his motion. No hearing was held.

On June 30, attorney Villaume’s motion requesting the appointment of standby counsel was heard. Villaume referred to defendant’s May 11 motion and asked the court to be appointed standby counsel. After a brief in-camera hearing, the motion was denied from the bench.

On July 5, defendant submitted another pro se motion, again citing Faretta and stating he was asserting his self-representation right “unconditionally.” During a court appearance on July 26 on other matters relating to the case, Villaume told the court that defendant was again asserting his right to self-representation. At the same appearance, the prosecutor told the court that he thought defendant’s July 5 assertion was unequivocal.

On August 16, the court held an in-camera hearing on Villaume’s motion for an evidentiary hearing on the issue of appellant’s pro se representation. The prosecutor submitted a memorandum outlining pertinent case law, citing again Faretta. Defendant told the court that he was asserting his right of self-representation to obtain “an overall managerial role in my case” and because “I don’t feel that Mr. Villaume could represent me properly.” Villaume added that he believed defendant was able to represent himself. The court noted, too, that a previous attorney who had represented defendant briefly thought defendant was “more competent to defend his case than 90% of the lawyers in the state.” The court also had before it the report of a psychologist who had examined defendant pursuant to Minn.R.Crim.P. 20, which concluded that defendant, 46 years old, was “obviously intelligent, educated, and articulate” and spoke in a rational and organized manner. On August 17, the trial court issued its order finding that defendant did not knowingly and intelligently waive his right to counsel. Defendant’s request to proceed pro se was denied.

The case then proceeded through trial with Villaume as counsel. In April 1989, after a 2-week trial, the jury found defendant guilty of first-degree premeditated murder. Defendant now appeals, contending his conviction must be set aside because he was denied his constitutional right of self-representation.

I.

The United States Supreme Court has recognized that the sixth and fourteenth amendments to the federal constitution grant criminal defendants a right to represent themselves in state criminal proceedings. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This important right “must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ ” Id. at 834, 95 S.Ct. at 2541 (citation omitted). Indeed, the self-representation right embodies such bedrock concepts of individualism and personal autonomy that its deprivation is not amenable to harmless error analysis. “Obtaining reversal for violation of such a right does not require a showing of prejudice to the defense, since the right reflects constitutional protection of the defendant’s free choice independent of concern for the objective fairness of the proceeding.” Flanagan v. United States, 465 U.S. 259, 268, 104 S.Ct. 1051, 1056, 79 L.Ed.2d 288 (1984); McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984). As a corollary, however, a defendant who exercises his right to proceed pro se “cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.’ ” Faretta, 422 U.S. at 835 n. 46, 95 S.Ct. at 2541 n. 46; McKaskle, 465 U.S. at 177 n. 8, 104 S.Ct. at 950 n. 8.

When a criminal defendant asks to represent himself, the court must determine (1) whether the request is clear, unequivocal, and timely,² and (2) whether the defendant knowingly and intelligently waives his right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. We conclude that defendant has clearly met both requirements.

A.

The State contends that defendant’s request for self-representation was equivocal because early in the proceedings defendant demanded that the court appoint a public defender to represent him; that later he wanted counsel of his choice, paid for with public funds, and sought to discharge appointed counsel; and that at other times defendant requested appointment as co-counsel. By the summer of 1988, however, it was clear to everyone that defendant was adamantly asserting his right to represent himself. Defendant cited Far-etta in two written motions demanding self-representation. In the July 5 motion he asserted his right “unconditionally.” During the August 16 in-camera hearing, the defendant again demanded his right of self-representation. His appointed counsel made written and oral demands to the court to allow defendant to proceed pro se, suggesting in that event that he be appointed standby. At the July 26 hearing, the prosecutor specifically stated he thought defendant’s July 5 demand was unequivocal, and on August 11 the prosecutor submitted a memorandum discussing relevant case law. While defendant expressed a preference to have a lawyer, he attached conditions to any such appointment which he knew would not be granted.³ The case law is clear that “[a] request to proceed pro se is not equivocal merely because it is an alternative position, advanced as a fallback to a primary request for different counsel.” Johnstone v. Kelly, 808 F.2d 214, 215-16 & n. 2 (2nd Cir.1986), cert. denied, 482 U.S. 928 (1987). See Faretta, 422 U.S. at 810 n. 5, 835-36, 95 S.Ct. at 2529 n. 5, 2541-42; and see also Wiesner v. Abrams, 726 F.Supp. 912, 919 (E.D.N.Y.1989).

The record leaves us with no doubt that defendant asserted his right to represent himself in a clear, unequivocal, and timely manner.

B.

The trial court found, in its August 17 order, that appellant did not make a knowing and intelligent waiver of his right to trial counsel. This finding, however, misapprehends the governing law and is clearly erroneous.

A waiver is an intentional relinquishment of a known right or privilege, and its validity depends, “'in each case, upon the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused.’ ” State ex rel. Thomas v. Rigg, 255 Minn. 227, 236, 96 N.W.2d 252, 258 (1959) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938)). It is not necessary that defendant possess the skills and knowledge of a lawyer to waive the right to counsel and proceed pro se; these attributes are irrelevant to a determination of a knowing and intelligent waiver. Faretta, 422 U.S. at 835-36, 95 S.Ct. at 2541-42; State v. Bauer, 310 Minn. 103, 123 n. 13, 245 N.W.2d 848, 859 n. 13 (1976) (“Competence as used here does not refer to legal ability but rather the mental ability to make the waiver,” citing Faretta.). Faretta cautions that a defendant “should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with his eyes open.’ ” Id. (citation omitted). Thus our own cases require the trial court to make a thorough inquiry into all pertinent concerns, especially if mental competency is in question, to make sure the defendant knows what he is doing. E.g., State v. Bauer, 310 Minn. 103, 122-26, 245 N.W.2d 848, 858-61 (1976) (adopting ABA Standards); State v. Jones, 266 N.W.2d 706, 711-12 (1978). This protects the defendant. It also dampens post-trial claims by the defendant that he should not have been allowed to waive his right.

In this case, the trial judge ruled that defendant could not make a knowing and intelligent waiver because: (1) defendant erroneously thought self-representation would increase his access to trial preparation materials; and (2) defendant lacked the ability to conduct his own defense. Neither reason invalidates a knowing and intelligent waiver.

Apparently defendant was not receiving many of the voluminous documents that attorney Villaume sent to him at the jail. Defendant told the judge his pro se demand was in part an attempt to correct this situation and obtain “managerial control.” The judge warned defendant that if he was pro se, he would not thereby increase his access to the documents. Nevertheless, defendant continued to disagree. The trial court found that defendant’s desire to waive counsel was “essentially conditioned by the defendant on his belief that if he represents himself, he will have greater access to trial preparation material.” Because defendant was incorrect in his belief, the trial court felt that defendant’s waiver of counsel was not a knowing and intelligent waiver.

The fact remains, however, that even after being told he would not have “managerial control” over the documents, defendant persisted in his right to represent himself. His persistence, whether due to stubbornness or obtuseness, was not a product of any mental incapacity to understand; whatever his reasons or motives, the decision to be his own attorney was defendant’s personal decision to make and he made it knowingly and intelligently. Limited access to trial resources is inherent in a jailed defendant’s self-representation, and, of course, the defendant should be so warned, as he was here. Cf. State v. Seifert, 423 N.W.2d 368, 372-73 (Minn.1988); Faretta, 422 U.S. at 835, 95 S.Ct. at 2541.

The trial court also noted that the case was complex, requiring experienced legal counsel, and that defendant “was not competent to conduct the sort of legal defense necessitated by this case.”⁴ It may well be that a defendant’s case can be better handled by an experienced lawyer than by the defendant himself, but that is not the point. “The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to' decide whether in his particular case counsel is to his advantage.” Faretta, 422 U.S. at 834, 95 S.Ct. at 2541.

Not only are the two reasons assigned by the trial court for denying waiver of counsel inapposite, but a review of the record can lead to no other conclusion than that defendant’s waiver was knowingly and intelligently made.

Defendant is purportedly educated through at least 1 year of law school. He has demonstrated a general understanding of court protocol. His pro se motions and memoranda, by and large, are written coherently and reflect his ability to comprehend his rights. Numerous hearing transcripts reflect - defendant’s ability to make an intelligent oral argument. On one occasion, taking over for one of his earlier appointed counsel, he conducted a credible examination of a witness in a videotaped deposition. The Rule 20 examination supports the adequacy of defendant’s intellectual capacity. Villaume thought defendant was capable of self-representation, a conclusion endorsed by defendant’s first attorney. We conclude that defendant is “literate, competent, and understanding” and capable of waiving his right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541.

While the trial court did not make as extensive an inquiry into the waiver issue as might have been done, the record more than adequately shows defendant made an informed decision. Defendant was represented by attorney Villaume, who, it may be presumed, advised him. See Jones, supra, at 712. His numerous pro se legal arguments, written and oral, show he fully understood the gravity of the charges. His familiarity with Faretta suggests he was aware of possible dangers. In short, we believe defendant’s demand for self-representation was “made with eyes open.” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541.

We might add that, as noted by the trial judge and attorney Villaume, defendant has shown no tendency to engage in disruptive misconduct which would justify termination of a right of self-representation. See Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46. The trial court does, of course, have the power to appoint standby counsel, even over defendant’s objection. Id.

Unquestionably, defendant is manipulative and argumentative.⁵ He persists in wandering into annoying irrelevancies. He says he would be better off with competent counsel (which, incidentally, is another indi-cia of his intelligence), but he is dissatisfied with anyone’s competence except his own. We can appreciate the trial judge’s concerns for defendant’s interests. But, for better or worse, defendant wants to represent himself. Faretta was meant by the United States Supreme Court for just such people. We have no alternative but to reverse the judgment of conviction and grant defendant a new trial where he may represent himself.

II.

On February 21, 1989, about a month before trial, defendant filed with the court administrator an affidavit of prejudice for the purpose of causing a new judge to be assigned. See Minn.Stat. § 542.16, subd. 1 (1988). On the day of the Rasmussen hearing, March 20, 1989, defendant objected to the court’s “apparent decision not to honor this affidavit of prejudice.” The judge then said he was denying the notice to remove because it was untimely. The recu-sal issue is troublesome but, as we assume a different judge will be assigned the retrial, we see no need to discuss the issue.

There is no merit to defendant’s claim of a denial of a speedy trial. Twenty-five months elapsed from arrest to trial. At certain stages defendant asserted his right to a speedy trial, although on August 29, 1988 through March 21, 1989, he waived that right. Much of the delay was attributable to defendant and his frequent changing of defense counsel, requiring continuances of scheduled trial dates. Finally, defendant has not shown that the delay prejudiced his defense; if anything, it aided defense preparation. We conclude from our review of the record in light of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), that defendant’s speedy trial rights were not violated.

Based on the totality of the circumstances, the trial court found that Linda Winbush freely and voluntarily consented to a search of her house. We affirm that finding, which is amply sustained by the evidence. Winbush’s later equivocation op whether she had voluntarily consented to the search appears to have been prompted by defendant’s intervention. Finally, we agree with the trial court that the Henne-pin County Attorney’s office was not disqualified from prosecuting this case because it had hired a paralegal who had previously interviewed for a job with attorney Villaume. The trial court properly insulated this incident so that it had no effect on a fair trial. Other issues are without merit or moot.

Reversed and new trial granted.

1 . Both defendant and the State Public Defender filed briefs on appeal. While defendant filed his own brief and desired to waive his right to counsel on appeal, we have allowed the State Public Defender to brief the case and argue as amicus.

2 . Some courts hold that a self-representation request is untimely if interposed solely for delay. See e.g., Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir.1982). The State does not contend defendant's demand was untimely.

3 . At the August 16 in-camera hearing, when questioned by the trial court, defendant conceded that he would prefer to be represented by counsel, but he quickly attached provisos: counsel would have to be "competent, prepared, loyal, dedicated” and "with proper ancillary personnel and resources.” Defendant explained, "I do not see those things existing here” and “1 think I can do a better job."

It is true, as the dissent points out, that during this hearing, when asked what should be done, the defendant replied, "At this point I don’t know." This exchange occurred, however, early in the discussion, at page 9 of a 22-page transcript, and the subsequent discussion made abundantly clear (as the preceding paragraph indicates) that defendant wanted to represent himself.

4 . "This is an extremely complex case * * *. It also requires a well-thought-out, well-planned and well-executed trial strategy and the preparation for and making of timely and appropriate trial objections. * * * [T]he defendant herein is not competent to conduct the sort of legal defense necessitated by this case.” Trial court’s Memo to Order of August 17, 1988.

5 . Since oral argument, defendant has filed a motion for leave to file a “Pro Se Post-Briefing Supplement,” accompanied by the "Supplement.” The motion is denied. Defendant’s further motion to unseal certain in-camera hearing transcripts provided he first reads them is also denied. This court has, of course, reviewed the sealed transcripts, as it has a right and obligation to do.