FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION [NO.
60CR-12-3469] HONORABLE BARRY ALAN SIMS, JUDGE AFFIRMED.
L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., for
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
J. GLADWIN, CHIEF JUDGE.
Antonio Whitlow appeals his convictions from the Pulaski
County Circuit Court on two counts of murder in the first
degree and kidnapping. He argues that the trial court
incorrectly refused to allow him to represent himself pro se.
Specifically, Whitlow claims that the trial court's
reliance on his educational level and prior legal knowledge
were invalid bases for its refusal to allow him to appear pro
se. We affirm.
appeals his convictions for two counts of murder in the first
degree (one count in the presence of a child) and kidnapping.
He was sentenced to sixty years for each count of murder in
the first degree, plus five years for kidnapping, and he
received an additional ten years for committing one count of
murder in the first degree in the presence of a child. All
sentences are to run consecutive to one another for a total
of 135 years to be served in the Arkansas Department of
eve of trial during an omnibus hearing, Whitlow addressed the
trial court and indicated that he no longer wanted his
court-appointed attorney of record, Ronald L. Davis, to
represent him. Whitlow indicated that he intended to hire new
counsel, Teresa Bloodman, but stated that she would not
assume his representation until counsel of record withdrew.
The trial court declined to relieve counsel without other
counsel being present to enter an appearance and indicated,
"Okay, let's have this hearing."
then expressed that if he was left with the choice between
having counsel of record continue to represent him or of
representing himself, he preferred to represent himself.
Specifically, Whitlow asked the trial court, "Okay. So
why come I can't represent my own self tomorrow?"
After a short recess, the trial court placed Whitlow under
oath, and in direct response to the trial court's asking
Whitlow if he wanted to represent himself the following day
at trial, Whitlow responded, "If I can't have
[Teresa] Bloodman, yeah." After exhaustive questioning
by the trial court, much of which involved irrelevant
inquiries about Whitlow's legal abilities, the trial
court refused to allow Whitlow to proceed pro se.
Standard of Review and Applicable Law
standard of review is whether the circuit court's finding
that a waiver of rights was knowingly and intelligently made
was clearly against the preponderance of the evidence.
Williams v. State, 2009 Ark.App. 684, 372 S.W.3d
358. Justice Stewart opined in Faretta v.
California, 422 U.S. 806 (1975), that a defendant in a
state criminal trial has a constitutional right to proceed
without counsel when he voluntarily and intelligently elects
to do so. Stated another way, the inquiry is whether a State
may constitutionally hale a person into its criminal courts
and force a lawyer upon him, even when he wants to conduct
his own defense. See id.
Sixth Amendment to the United States Constitution, made
obligatory upon the states by the Due Process Clause of the
Fourteenth Amendment, guarantees an accused the right to have
assistance of counsel for his defense. Williams,
supra. Article 2, section 10, of the Arkansas
Constitution specifically provides that an accused in a
criminal prosecution has the right to be heard by himself and
his counsel. Id. It is also well established that an
accused has a constitutional right to represent himself and
make a voluntary, knowing, and intelligent waiver of his
constitutional right to assistance of counsel in his defense.
constitutional right to counsel is a personal right and may
be waived at the pretrial stage or at trial. Walton v.
State, 2012 Ark. 336, 423 S.W.3d 56. An accused is
entitled to represent himself provided that he knowingly and
intelligently forgoes his right to counsel and is able and
willing to abide by the rules of procedure and courtroom
protocol. Jarrett v. State, 371 Ark. 100, 263 S.W.3d
538 (2007). Our supreme court has said that a defendant in a
criminal case may invoke his right to defend himself pro se
provided that (1) the request to waive the right to counsel
is unequivocal and timely asserted, (2) there has been a
knowing and intelligent waiver of the right to counsel, and
(3) the defendant has not engaged in conduct that would
prevent the fair and orderly exposition of the issues.
following exchange, in relevant part, occurred between the
trial court and Whitlow:
Trial Court: Okay. Do you believe that you're competent
to represent yourself?
Trial Court: What kind of education have you received?
Whitlow: I received past the twelfth grade education.
Trial Court: Can you read and write?
Trial Court: Have you been through criminal trials before? Do
you know how to do a trial? Have you sat through a trial?