Coleman v. State
617 P.2d 243
Okla. Crim. App.
1980
Check Treatment

*1 Having found no error requiring modifi- reversal, opinion

cation or we are of the judgment and sentence should be is, accordingly, AFFIRMED.

CORNISH, J.,P. concurs results.

BRETT, J., concurs. LeRoy COLEMAN, Appellant,

Michael Oklahoma, Appellee.

The STATE of

No. F-78-642. Appeals Criminal of Oklahoma.

Sept. 1980. *2 Monroe, Public

Stanley Appellate D. De- fender, appellant. for Gen., Atty. Eric David Cartwright, Jan Lee, Jacobs, Gen., Legal Atty. Kay Asst. W. Intern, appellee.

OPINION BRETT, Judge: Coleman, LeRoy appellant, Michael by jury Robbery convicted of the crime of Firearms, Former Conviction of With After CRF-77-3265, Felony, in Tulsa (75) to seventy-five years and sentenced custody Department of Correc- tions. erty,

Mrs. on 473 F.2d at Gwendolyn (D.C.Cir.1972), Cotton testified that 19,1977, September gun- she was at rejected robbed the federal court this contention point working while as a cashier at pro concluded that the to defend Natural Company Oklahoma Gas in Tulsa. se could not be denied because of the antici black, She described the robber as with an pation disruptive conduct. That court “afro,” with “large pores uncombed or said, “In unqualified right effect the of self *3 something on his face.” looked She representation implied rests on an presump through approximately photo- five books of tion that will be the court able to achieve graphs day robbery the of the and did not cooperation. reasonable The possibility later, identify suspect. a week Mrs. One that cooperation may reasonable be with Cotton examined of photographs two books held, waived, right and the later is not a and an additional stack of 80 to 100 individ- reason denying right the of repre self ual photos. pho- At that time she found a sentation at say the start.” This is not to tograph merely that resembled the robber. may that a criminal defendant not be de later, Two weeks the appel- she identified right nied self-representation the to if he lant photographs, from a stack of 15 to 20 persists in disorderly, disruptive, and disre saying, “I believe this is the man.” Mrs. spectful a judge behavior after has warned Cotton was the only identification witness. him may that such conduct a constitute right. waiver of his selection, jury

Prior to appellant’s motion to represent denied. himself was Alternatively, argues the state that The appellant’s proposition first of error is appropriately motion was denied be that the trial court by refusing erred to cause it timely. was not represent allow him to himself. Before the jury before the was selected. The selection, began, just trial but prior jury to record contains no hint that the motion was appellant represent entered a motion to delay, nothing a tactic to secure is and there se, proceed pro himself and which the trial suggests that any delay would have court denied. The court reasoned that granting attended the of the motion. If appellant’s lack of legal knowledge, and the discharged counsel is because of Sixth maintaining security, State’s interest ineffectiveness, Amendment appointment appellant prior jail escapee, was a of new ordinarily counsel leads to a continu necessitated denial of the motion. ance to allow adequate prepa new counsel Supreme The United States Court Similarly, ration time. a defendant who has established that a defendant has an proceed pro dismissing elects to se after his independent right guaranteed fundamental counsel, whom to be ineffec he considers by the Sixth Amendment to the United tive, provided prepa time for should also be Constitution, applicable States to the states pro ration. Where a se choice arises for Amendment, through the Fourteenth to in appointed reasons other than counsel’s represent stages himself at all of criminal however, competence, the defendant has proceedings, if he elects to do so. Faretta right presumably waived his to effective California, 2525, 422 U.S. 95 S.Ct. Therefore, the trial assistance. court usual (1975); State, L.Ed.2d 562 Parker v. Okl. ly delay. without In this case proceed Cr., 556 P.2d 1298 A trail court prosecutor court-appointed both the and accept cannot force a defendant counsel pro counsel knew of defendant’s desire to or refuse court-appointed to dismiss counsel However, pro ceed se. no effort was made if the defendant represent elects to himself. to inform the court until time for trial. Lack of knowledge of the law is a not valid reason for the trial court say This is not to that the grant refuse to a proceed pro defendant’s motion. Far se is without restrictions. California, First, supra. etta v. Neither is the the trial court must determine wheth court’s reason of security proper basis for er the made a sufficient de accused has Dough such a denial. In United States mand to himself. In the case at alone since accused be relieved should unequiv- bar, to do so is stated his intention decision. of his consequences suffers the Next, to determine the court is ocally. capacity to has the the defendant whether appel assignment In his second what and to understand intelligently decide closing argu complains of State’s lant e., make a he can doing, i. whether he is commented ment, prosecutor in which the counsel. There his valid waiver of the record matters outside extensively on standard minimum necessarily some trial. stage of the during the first oneself. to defend required competency that at- frequently stated This has will be defendant competent fully Only argue permitted are not to torneys to counsel. his to waive permitted record for which are outside matters competency and to stand Competency emo- jury’s on the purpose playing Fac- synonymous. not se are Bryant for instance tions. See or lack senility, youth, such as extreme tors (1978), Polk v. P.2d 377 *4 by the considered be of education srould State, Okl.Cr., 558 P.2d 561 trial court. appellant which the of argument The de Next, should the trial court complains is as follows: making a is that the defendant termine Now, the you that want “... is what voluntary, knowing his in a waiver of message your in Tulsa? Is law to be State, v. manner. Johnson intelligent and Depart- Tulsa Police going to be that the (1976). The trial 556 P.2d scene of called to the you ment when are to the defendant clearly explain must judge up come you can robbery an armed and disadvantages in such a waiv the inherent one victim- with knowledge and skill er, lack of including a Honor, object, I’ll Your “MR. SILVA: evidence, and crimi procedure rules of as to verdict, it is of the trial is purpose establish that The record must nal law. message other than not to send a is doing and his choice “he knows what he is case, object I’ll charged in the defendant Faretta v. Califor eyes open.” with to that. nia, espe be The should supra. defendant it. deny I’ll “THE COURT: promulgated aware of the rules cially Exception. “MR. SILVA: that the supra, as follows: Parker v. Exception allowed. “THE COURT: stand appoint required trial court is not be the law in It this to “MR. BAKER: waive counsel, will that the defendant by when officers community? Police this counsel as a any argument incompetent of witness, just one get if there is you there judge the trial appeal, for and that basis case, it, open prose- forget even don’t as counsel or effectively operate will not just with one into court cutors don’t come It is notewor the defendant. cocounsel for therefore, now on So, from witness. however, that this Court maintains thy, one wit- just if have you armed robbers choice for the position preferable that home free. against you, you are ness ap standby counsel be trial court is that said, enough. not what he one is That’s State, supra. pointed. Johnson case rests on says He State’s with- proceed When an accused elects to on Gwendolyn gladly I’ll rest it Cotton. her, counsel, through a course out he chooses believe find this you her. If don’t waters, gentlemen. likelihood of unfamiliar where the ladies and guilty, man not country The problem crime is a in this legal error substantial. The however, bombarding on will continue and we all know its self-representation, judi- I’ll— Accordingly, every day. both the us to be exercised. fully appreciate

ciary having and the bar must noth- object as “MR. SILVA: I’ll It’s not of this constitutional evidence. ing ramifications to do with the case, endeavor, case, appeal to care- every it’s an and must comment in this jury and I’ll the hazards. of the sympathy, the accused of sentiment fully advise object. legal field’s conscience explained, the Once appellant “THE Denied. The seemed to be conditioning COURT: his request on access to a se law Exception. “MR. SILVA: library. prisoner For security reasons “THE COURT: Allowed. See, may-be library. denied access to a law times, many “MR. BAKER: How ladies West, (8th United 557 F.2d 151 States v. gentleman, you your have been in 1977); Chatman, Cir. yours own homes or with friends of when United States your (4th crimes in the 1978). question are called attention F.2d 1358 Cir. press many or somewhere and how times be appellant answered then is whether the you somebody say, have said or heard else unequivocally requested represent him- ‘Why somebody something didn’t do self only or if he wished to him- Well, about they you, this?’ now the are self if he library. could have access to a law your here is something, chance to do not judge did Unfortunately ques- not States, about crime in the but United tion appellant as to this matter. If the about one crime in Tulsa Oklaho- appellant conditioning request was his on ma ... .” the availability library by facilities then Arguments type of this have been held to the above cited circuit court decisions his grounds they for modification where oc probably properly have been stage, curred in the second finding after a appellant requesting denied. If the State, Okl.Cr., guilt-Herrod 512 P.2d any self-representation under circumstanc- (1973)-or where the case was State’s deny request. es then it was error to strong so that a unques second trial would ground upon A second which a trial court *5 tionably result in an identical verdict-Coo validly deny request self-repre- a State, Okl.Cr., per (1978). v. 584 P.2d 234 request timely. sentation is if the is not But, case, in the present improper argu Denno, (2nd v. United States 348 F.2d 12 ment during stage. occurred the first And 1965). timely re- Cir. What constitutes a inflammatory it is so that this cannot Court quest uniformly by defined has not been say, beyond a doubt that reasonable another federal courts. that a has said One court trial would reach the same result. request timely will if be considered made therefore, We conclude that this case selected, jury before the absent an af- must be and REMANDED REVERSED showing firmative it was tactic proceedings. the District for further States, delay Chapman secure v. United 553 886, 1977). (5th Another court F.2d 887 Cir. CORNISH, J., specially P. concurs. if made request timely has held the to be BUSSEY, J., concurs results. jury is sworn. United v. before States CORNISH, Presiding Judge, specially Price, 1973). (9th Cir. 474 F.2d 1223 concurring: must be made any request In event the A defendant in a state criminal trial has proceedings have meaningful before a constitutional himself if Lawrence, v. 605 started. United States voluntarily he and intelligently elects to 1979). (4th present 1321 In the F.2d Cir. California, right. exercise that Faretta v. any actu- request case the was made before 806, 2525, 422 95 45 L.Ed.2d 562 U.S. S.Ct. re- proceedings. appellant’s al trial The se, (1975). how- made. quest timely was therefore ever, must unequivocal. Felts point concerning The final to be present 588 P.2d 572 In the representation is that case the appellant’s request was stated in self— Chapman harmless v. Cali following page 6 the tran- error doctrine way on fornia, 18, 824, script. L.Ed.2d 386 U.S. 87 S.Ct. (1967), apply deny does not to an error THE DEFENDANT: If I was afforded ing self-representation right. Denial to legal (sic) law books and excess to law self-representation requires au library, quite proper I’m sure that I could California, represent myself and the time to do it. su tomatic reversal. Faretta Enomoto, (9th 587 F.2d 400 Bittaker v. pra, 913, 99 S.Ct. 1978)cert. denied U.S.

Cir.

2013, 386. 60 L.Ed.2d

BUSSEY, concurring in results: Judge, dissenting I

Although believe California, 422 in Faretta v. U.S.

opinions 2525, (1975),

806, 45 L.Ed.2d 562 95 S.Ct. interpret accurately assess and

more

constitution, majority by we are bound and, accordingly, I concur

holding therein colleague, by my reached

the results

BRETT, J. GOODEN, Appellant,

Leonard Oklahoma, Appellee.

The STATE of

No. F-79-269. of Oklahoma. Appeals

Court of Criminal

Sept. 1980. *6 Defender, Caldbeck, Public

T. K. Asst. appellant. Oklahoma