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Shabazz v. State

Court of Appeals of Arkansas, Division III

May 2, 2018

MELCHIZEDEK SHABAZZ APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE HOWARD COUNTY CIRCUIT COURT [NO. 31CR-16-75] HONORABLE TOM COOPER, JUDGE

          Short Law Firm, by: Lee D. Short, for appellant.

          Leslie Rutledge, Att'y Gen., by: Christian Harris, Ass't Att'y Gen., for appellee.

          PHILLIP T. WHITEAKER, JUDGE.

         A Howard County Circuit Court jury convicted Melchizedek Shabazz of possession of marijuana with intent to deliver, and he was sentenced to 30 years' imprisonment in the Arkansas Department of Correction. He appeals, claiming that he was denied his Sixth Amendment right to counsel at his suppression hearing. We agree.

         I. Facts

         On the morning of May 23, 2016, Howard County Deputy Sheriff Joey Davis stopped Shabazz's vehicle for speeding. Deputy Davis smelled the odor of "green" marijuana and saw several small pieces of a green, leafy substance-possibly marijuana-on the console. Shabazz admitted to Deputy Davis that he smoked marijuana earlier that morning and that there was some marijuana in the car. He then handed Deputy Davis a small container that contained a small amount of marijuana. Thereafter, Deputy Davis conducted a search of the vehicle, which revealed a brown paper sack containing 28 small white zipper-lock bags containing a substance believed to be marijuana. A search of the trunk revealed four white trash bags containing over 45 different containers and bags of suspected marijuana-many of which were labeled and appeared to have come from a marijuana dispensary. In total, the suspected marijuana weighed approximately eight pounds.

         II. Procedural History

         Shabazz was arrested and charged with possession of marijuana with intent to deliver. He was appointed counsel to represent him on the charges. On June 3, 2016, his counsel filed a motion to suppress, alleging that Shabazz's arrest was unlawful because the officer lacked probable cause or reasonable suspicion to stop, detain, or arrest him; that the stop, detention, and arrest of Shabazz was merely a pretext for an investigation; that the officer lacked consent to search the vehicle or a search warrant to do so; and that the search of the vehicle was therefore unlawful, unreasonable, and without probable cause. On June 7, 2016, Shabazz filed a pro se motion to suppress evidence and dismiss, alleging that the officer lacked consent to search the vehicle; that the officer lacked cause to search the vehicle under Rule 12.4 of the Arkansas Rules of Criminal Procedure; and that the initial stop was illegal.

         On June 8, 2016, the court conducted a pretrial hearing. Shabazz was present at the hearing with his appointed counsel. The court questioned why Shabazz was filing pro se motions while being represented by appointed counsel. Shabazz responded that he believed that his counsel was ineffective, stated that counsel had not been in contact with him, and explained that he was unhappy with the standard motion to suppress filed by counsel. The following colloquy between the court and Shabazz occurred:

The Court: Let me ask you something real quick to cut to the point-cut to the chase. Do you wish to represent yourself?
The Defendant: No, sir.

         The court then explained to Shabazz that he was represented by counsel, who had filed motions on his behalf, and the court would not permit pro se motions that competed against those of counsel. The court then informed Shabazz that he could file his own motions only if he represented himself. Shabazz responded with more protests about the effectiveness of his appointed counsel. The court responded that it would not "micromanage" the public defender but told Shabazz that he could represent himself if he did not like the representation afforded by appointed counsel. Shabazz asked the court to appoint him a different attorney. The court denied the request. When Shabazz continued to argue that his counsel was clearly ineffective, the court responded:

The Court: I'll say it one more time, and that's the last time I'm going to say it, I will let you represent yourself. You have that constitutional right. I am not going to micromanage the way attorneys represent their clients.
The Defendant: Well, yes, sir, I would like to represent myself.

         At this point in the proceeding, Shabazz's appointed counsel handed to him the discovery received from the State and the motions that had been filed by counsel on his behalf. The following colloquy between the court and Shabazz occurred:

The Court: And I'm going to let you represent yourself, but I'm going to just give you one little spiel that I tell people that want to represent themselves. You know, you haven't been trained in the law. Do you have a college degree?
The Defendant: No, sir.
The Court: And you obviously haven't been to law school. I tell people all the time, I've tried 150 jury trials when I was prosecutor and I wouldn't represent myself. With that in mind, do you still wish to represent yourself?
(No response)
The Court: Mr. Shabazz?
The Defendant: Sir?
The Court: Do you still wish to represent yourself?
(No response)
The Court: I'll ask you one more time. Do you still wish to represent yourself?
The Defendant: Your Honor, at this - I would like to continue to proceed with [counsel] at this time-. And so I can read this thing that he has-.

         Hearing that Shabazz desired to continue with appointed counsel, the court then began to reschedule the motions and jury-trial settings to a subsequent date during the month of August. When Shabazz learned that the hearing on his motions would not be heard until August, the following colloquy between the court and Shabazz occurred:

The Defendant: On August 10?
The Court: August 10.
The Defendant: Oh, no, sir. If-. I would proceed for myself today instead of sit in jail, Your Honor. I'd rather proceed myself today.
The Court: You'd like to go to trial next ...

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