Flagg v. State
272 So. 3d 233
Ala. Crim. App.2018Background
- On Dec. 12, 2015, James Gillard was shot twice during a street altercation; he later died. Andrea Duhreal Flagg was identified on video firing the shots and was arrested.
- Flagg was indicted for murder and pleaded not guilty by reason of mental disease or defect; a competency evaluation found him competent to stand trial.
- Flagg filed pro se motions asserting denial of a speedy trial and requested to waive counsel and represent himself with standby counsel (M. John Steensland III).The trial court conducted a Faretta-style hearing on Aug. 4, 2017, and permitted Flagg to proceed pro se with Steensland as standby counsel.
- At trial Flagg conducted opening and closing statements and examined witnesses; Steensland provided limited assistance (voir dire help, some motions, jury-charge work, filing post-trial motions and appeal).
- A jury convicted Flagg of murder; he was sentenced as a habitual offender to 50 years. Flagg appealed, arguing he was denied his Sixth Amendment right to counsel because the court failed to conduct a sufficiently comprehensive Faretta colloquy and did not advise him he could withdraw his waiver at any time.
- The Court of Criminal Appeals reversed and remanded, holding the record did not show Flagg knowingly, intelligently, and voluntarily waived counsel and the court failed to advise him of the right to withdraw the waiver.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Flagg validly waived right to counsel under Faretta | Flagg contended the court failed to ensure his waiver was knowing, intelligent, and voluntary because it did not advise him of specific dangers, procedural obligations, his experience, or that he could withdraw the waiver at any time | State argued Flagg clearly and unequivocally waived counsel at Faretta hearing and that standby counsel’s participation amounted to hybrid representation, obviating a detailed Faretta colloquy | Court held waiver was not established by the record: the colloquy was insufficient on key Faretta/Fitzpatrick factors and Rule 6.1(b) (no advice that waiver could be withdrawn) so waiver was not knowing and intelligent; reversal required |
| Whether standby counsel’s participation cured any Faretta defect (hybrid vs. standby) | N/A | State argued Steensland’s active involvement created hybrid representation, so a full Faretta inquiry wasn’t necessary | Court found the record showed standby—not hybrid—representation (Flagg performed primary defense tasks), so the State’s argument failed and a proper Faretta inquiry was required |
Key Cases Cited
- Martinez v. Court of Appeal of California, 528 U.S. 152 (U.S. 2000) (indigent defendants have a right to appointed counsel)
- Faretta v. California, 422 U.S. 806 (U.S. 1975) (constitutional right of self-representation; waiver must be knowing and intelligent)
- Johnson v. Zerbst, 304 U.S. 458 (U.S. 1938) (waiver of counsel must be intelligent and competent; court should ensure validity)
- Carnley v. Cochran, 369 U.S. 506 (U.S. 1962) (when record shows express waiver, burden is on defendant to prove it was not knowing and intelligent)
- Tomlin v. State, 601 So.2d 124 (Ala. 1991) (Alabama standard: totality of circumstances; Rule 6.1 protections; Faretta colloquy not strictly formulaic)
- Fitzpatrick v. Wainwright, 800 F.2d 1057 (11th Cir. 1986) (factors to consider in Faretta waiver analysis)
- Coughlin v. State, 842 So.2d 30 (Ala. Crim. App. 2002) (applying totality-of-circumstances test to waiver)
- Battles v. State, 263 So.3d 1087 (Ala. Crim. App. 2018) (right to counsel deprivation may be raised at any time on appeal)