FROM THE BENTON COUNTY CIRCUIT COURT [NOS. 04CR-13-722 AND
04CR-15-1083] HONORABLE ROBIN F. GREEN, JUDGE.
D. Watson, Attorney at Law PLLC, by: Brett D. Watson, for
Rutledge, Att'y Gen., by: Pamela Rumpz, Ass't
Att'y Gen., for Appellee.
A. WOMACK, ASSOCIATE JUSTICE.
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.
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 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).
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 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.
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.
that the trial court correctly held that Reed's attempts
to waive his right to counsel and represent himself were
required by Ark. Sup. Ct. R. 4-3(i) (2017), the record has
been examined for ...