Hatfield v. State
57 S.W.3d 696
Ark.
2001
Check Treatment

*1 Therefore, motion to 7-5-801. we described in deny appellees’ § dismiss. case with for the trial We reverse remand this directions with set out in this court to enter an order consistent our holdings an are order shall include Such recognizing appellees opinion. retain or since not entitled to their offices as holdovers positions were certified as winners in their lawfully respective appellants races.

Michael HATFIELD v. STATE of Arkansas Douglas CR 01-285 57 S.W.3d 696 Court Arkansas Supreme delivered October

Opinion denied December rehearing [Petition 2001.*] * grant. Brown, would J., *3 L.L.P., Cullen, Mark & by: Henry,

Henry Murphy appellant. Borkowski, Gen., Ass’t Mark Wilson by: Pryor, Att’y Misty Att’y Gen., for appellee. Michael Hatfield his con- challenges Tom Justice. Glaze, victions and for which he was sen- for rape kidnapping, tenced to life in On he does not prison. appeal, challenge of the evidence. The is that the trial argues sufficiency point court erred in to obtain his waiver failing knowing intelligent of his to counsel and in him to se at right permitting proceed pro first, trial. to determine This us two issues: whether appeal requires counsel; second, or not Hatfield waived his whether he his subsequently relinquished self-representation by permit- to conduct of the trial. ting attorney portions

Hatfield was information with one count each of charged by The stemmed from the abduction of a kidnapping rape. charges on 1999. The information was twelve-year-old girl September 10, 1999, 14, 1999, filed on and on the trial September September court defender Dave Harrod to Hatfield. appointed public represent time, At that Hatfield entered a of not reason of guilty by plea mental disease or defect and a mental evaluation. Harrod requested continued to Hatfield a number of throughout pretrial 1, 2000, and at a on Harrod hearings, hearing August again *4 announced that were which was scheduled for they ready 4, 2000, however, 2000. On Hatfield filed a letter August with the August

circuit court in which declared that he had “fired Dave Winslow Harrod as defender for conflict of interest and my public over trial and case disagreement management,” requested the court him a different defender. public appoint Hatfield’s trial on 2000. That jury began August morning, motion, Harrod mentioned Hatfield’s and noted that the court had “indicated order back to Mr. Hatfield that he either had to use defender he was or himself.” Harrod public assigned also said that had “indicated . . . that he’d like Hatfield what to do if at all . . . since he’s unfamiliar with voirdireis for me to sit possible in and in the selection and then he like to assist would jury repre- sent himself court with Hatfield with this open jury.” agreed situation, assessment of the and after several other addressing motions, and counsel had the court following exchange: Well, know even if we follow this

The COURT: you proce- dure with you then Mr. Hatfield picking jury with proceeding the trial. Then be you’ll the entire trial and present during available also, know, he can so consult as you And if he necessary. you wants to witnesses or you question any do on his behalf. anything You’re that; available to do to be you’re going available stand-by. Well, I didn’t believe that I was

Mr. Harrod: to be going able to go fishing, Judge. My was that if assumption he’s going ahead and do go the trial himself so as not confuse him I can sit aside and if he needs to consult then he can ask the court for a — confer, and, moment and we can and it should be an orderly process.

The COURT: As as long you’re available. Yes, sir.

Mr. Harrod:

H: H* H* ‡ Mr. HARROD: I Judge, don’t believe there’s else that anything needs to be taken with up regard to the defense. And the defense would be prepared forward. go

The COURT: else Anything by the State?

PROSECUTOR: We’d ask for just a few minutes to find some cases on . . . the court relieving Mr. Harrod. Becausethereare some questions some that the steps courthas said supreme that the courthas to go through. Well, he hasn’t been relieved.It’s just that . . . THE COURT: He wants to Prosecutor: just try own case.

The Court: Right. PROSECUTOR: And Mr. Harrod will be here to make objec- tions and . . *5 Well,

Mr. HARROD: not I’ll be here exactly. . . . The Court: Right, and to consult with. — Mr. HARROD: I’ll I’ll be available if he’s agot question if, now, needs,

and or if critical you there’s some advice he but I’m not to interfere with his the case. going trying

The COURT: Or to with the case if he so elects to proceed allow to do that. you Whatever, Yes, Judge. sir.

Mr. Harrod: The COURT: So you’re still counsel on the case. — Yes, clear, Mr. I HARROD: sir. I want just just Judge, [it] that Mr. Hatfield’s desire is to with the case in his own proceed method, fashion. And his methoddoesnot matchthe and rather defense — than I think his decisionto appear loggerheads is is go forward — reasonable. And I can, I think that in a sitting where I position know, if he you calls I can be of assistance. I don’t mind that doing a bit. If there’s that any comes on his I don’t question mind up part — — that at all. This is not answering it’s personal, just just

The Court: Trial strategy. Trial and case Mr. Harrod: strategy methodologymanagement —dis disagreement. further Anything State? The COURT: honor, PROSECUTOR:Your there’s not further as far anything as on the motions. After added.) this (Emphasis Harrod exchange, attorney proceeded dire,

to conduct voir which the first of trial. On the occupied day statement, second Hatfield his own day, gave and con- opening ducted cross-examination of of the six State’s eleven witnesses who testified that day.1 On Hatfield that he was appeal, not argues given opportunity waive his to coun knowingly intelligently

sel. The a criminal defendant se was deline proceed pro ated in Faretta v. 422 U.S. 806 California, where the (1975), “handling] While the dissent makes reference to Hatfield’s eleven wit solely” the record shows asking nesses, cross-examined six of those no only of the other five. questions

325 himself, held that “in order to the accused Court Supreme must represent and those benefits knowingly intelligently forgo relinquished Faretta, the associated with to 422 [traditionally right counsel].” that, The further U.S. at 835. Court stated defendant although need and not have skill in order to experience lawyer and choose intelligently competently self-representation, “should be made aware of the and of self- dangers disadvantages so that the record will establish that he knows what representation he is and his choice is made with Id. doing eyes open.” (citing McCann, Adams v. United States ex ret. 317 U.S. 269 In (1942)). Faretta, the Court also concluded that a defendant’s technical legal such, as is not relevant to an assessment of his knowledge, knowing exercise of the to defend himself. right

Likewise, this court has the crucial long recognized himself, an accused of his to aspect informing right See, State, with the attendant risks. v. along 289, Williams 153 Ark. e.g., State, 471, 239 S.W. 1065 (1922); v. 240 Ark. 400 Slaughter State, 565, S.W.2d 267 Barnes v. (1966); 258 Ark. 528 S.W.2d 370 Furthermore, our (1975). court has held that the trial court main tains a whether an weighty responsibility accused determining has and waived knowingly his to counsel. intelligently right Gibson State, 43, v. 298 Ark. 764 S.W.2d 617 v. (1989) (citing Johnson Zerbst, State, 304 8, U.S. 458 (1938)); Murdock v. 291 Ark. 722 S.W.2d 268 reasonable (1987). must be Every presumption indulged the waiver of fundamental against constitutional Daniels v. rights, State, 367, 322 Ark. 908 S.W.2d 638 and the burden is (1995), upon the State to show that an accused and voluntarily intelligently waived his fundamental to the assistance of counsel. right Oliver v. State, 743, 323 Ark. 918 S.W.2d 690 (1996). whether Determining an waiver of the to intelligent counsel has been made right depends in each case on the circumstances, facts and particular including and the background, conduct of the experience, accused. Oli ver, 749; State, 197, 323 Ark. at v. 331 Ark. 962 Beyer S.W.2d 751 . (1998) A criminal defendant invoke his to defend may right

himself se that pro (1) to provided waive the request to right asserted, counsel is and unequivocal timely there has been a (2) and counsel, waiver of the knowing intelligent and (3) defendant has not in conduct that engaged would the fair prevent Ark State, of the orderly 1, issues. Collin'sv. exposition 338 State, S.W.2d 541 v. (1999); 336 Ark. Mayo 984 S.W.2d 801 . A (1999) of the specific warning of self- dangers disadvantages or a record representation, the defendant showing possessed sources, establish such from other is knowledge required required State, of a waiver. Bledsoev. 337 Ark. 989 S.W.2d validity Scott, The “constitutional minimum” for (1999) (citing infra). whether a waiver was is that determining knowing intelligent counsel the accused be made aware of to have sufficiently *7 and of the of a decision to consequences forego present possible State, 214, 298 Ark. aid of counsel. Scottv. 766 S.W.2d 428 (1980) Illinois, Pattersonv. U.S. (1988)). (quoting Hatfield’s in the is that the instant trial court argument appeal did not advise him of the of sufficiently possible consequences Indeed, se. it is from the record that the proceeding pro apparent trial court made no into Hatfield’s of the inquiry understanding himself, risks and even dangers representing though attorney Harrod volunteered to the court that Hatfield’s “case methodol- did not match the “defense method.” an While assessment of ogy” how well or Hatfield mastered the intricacies of law is poorly not relevant to an assessment of his exercise of the knowing himself, Faretta, that, defend see it is evident from the record supra, from his conduct before and he could not have under- during stood the risks he or was about to undertake when disadvantages Indeed, control of his own defense. Hatfield’s cross-exam- assuming ination of several of the witnesses reveals his lack of comprehension of the fundamentals trial For his examina- procedure. example, tion of the victim’s mother was and much of it was rambling, irrelevant. The to his prosecutor objected repeatedly questioning, flustered, and Hatfield became at one increasingly point asking court, in reference to the “Is State’s this to be the objections, going entire trial? Later in the Object. as Object. Object.” day, deputy sheriff Richard Houchin testified about photographs footprints scene, taken at the crime Hatfield incriminated himself essentially during following exchange: And, ah, what about the Okay. tracks?

Hatfield: I made no reference to whose footprints they HOUCHIN: were. That’s a true statement. n — Sure did. Sure did. I’ve you you I’ve got got Hatfield: — lab number . . . 9912060391K87. What that is is a of my copy left and shoe print. Hatfield was unaware of the fundamentals of

Clearly, trial nor was he aware to as how to conduct cross-exami strategy, nation of the witnesses. Since Hatfield never intended offer defense, his own and his entire case was witnesses in dependent of the State’s the trial court the cross-examination upon should have made Hatfield aware of the dangers disadvantages himself, cases, as Faretta. In this representing required prior held that the trial court’s failure to make such an court has inquiry State, 367, See, constituted reversible error. Daniels v. 322 Ark. e.g., State, 908 S.W.2d 638 Scottv. 298 Ark. 766 S.W.2d 428 (1995); State, Here, v. Gibson 298 Ark. 764 S.W.2d 617 (1989); (1989). because the trial court allowed counsel to remain in the stand-by case, did make it not even limited into defendant’s inquiry of the before Hatfield to understanding legal process permitting himself. This was error on the trial court’s clearly part. State, however, that, The this court to conclude even if urges the trial court failed to conduct the there relevant was still inquiry, no reversible error because Hatfield effectively relinquished repre- words, sentation to his counsel. In other contends State standby deficiencies in the trial court’s Faretta were ren- any inquiry *8 dered moot Harrod’s active by attorney participation throughout trial, the and Hatfield waived his to se. thereby proceed pro The State out that Harrod conducted each of the thirteen points in this case. At most of these Harrod pretrial hearings hearings, continuances, 14, 2000, and on March Harrod requested announced that he was for trial as soon as the State finished ready 9, 2000, evidence. At the Harrod producing May pretrial hearing, Hatfield, took a number of motions for a up including request he not be made to to trial in and a motion go prison clothing individual voirdire.Harrod also a deal of time requesting spent good at the the State’s DNA evidence and the May hearing discussing results, and, fact that the FBI had not been in their test forthcoming trial, on the first Harrod in voir dire on day Hatfield’s engaged trial, behalf. While Hatfield conducted the second cross- day a number of the State’s witnesses that on the third examining day, however, Hatfield became ill and day, asked the court if Harrod him, could continue the trial for as follows: Honor, Your I’ve . . . come down . sick. . . Mr. Hatfield: the trial and postponing to the doctor I can . . . going [I]nstead can get trash over here in case I have to throw and I’m up Ah, that Dave requesting continue the rest of the trial. we [Harrod] — have no we had no disagreement as far as from legal procedures this It’s on. the DNA and the hair point just samples maybe other few witnesses. No there. And problem we ahead and just go resolve this or tomorrow today whenever it’s to be over. going The court Okay. will allow Mr. Harrod to The COURT: then since all are proceed you as co-counsel acting together. Mr. Hatfield: Is that Okay. okay with you? Honor, Your . if. .

Mr. Harrod: PROSECUTOR: Do what the tells judge you.

Mr. Hatfield: Okay. case, ... if that’s to be the . . . going counsel Mr. Harrod: was Ah, informed of this about four minutes before trial started. I ah, records that have are not laid out or set for the up, witnesses in. I’d ask for a coming minute twenty recess to set get up. Yes,

The COURT: the court will permit to you get your stuff set then. up Harrod finished the rest of the four of cross-examining the nine witnesses called the State that by day, DNA including — who offered the experts most conclusive evidence regarding —

Hatfield’s guilt for a directed verdict at moving the close of denied, State’s case. That motion was and Harrod rested the defense’s case without witnesses. He calling any moved for a again verdict, directed and it was once more denied. Harrod also offered several court, instructions proposed jury to and delivered the Harrod asked closing argument. when it returned poll jury verdict, with its raised objections offered one of the testimony State’s witnesses during informed the court sentencing phase, that Hatfield would not call witnesses, and any *9 offered a sentencing to the closing argument the jury sentencing phase. These circumstances us to the State’s bring counterargu ment: did Hatfield to relinquish representation Harrod? attorney The State submits that once a defendant invokes his to self- right representation, may waive that subsequently when he right “invites or to agrees substantial any participation by [stand-by] counsel.” See McKaskle v. 465 U.S. 168 see Wiggins, (1984); also Heine, United States v. 920 F.2d 552 (8th Cir. Also in 1990). support of this State, the argument, 743, State cites Oliver v. 323 Ark. 918 State, S.W.2d 690 422, and (1996), Calamese v. 276 Ark. 635 S.W.2d Oliver,

261 In (1982). this court held that the trial court’s failure to into Oliver’s financial inquire error, to hire counsel was ability but

329 active that, counsel because the stand-by provided concluded still defendant, to hold that it be “hard would put of the representation Oliver, Ark. at 751-52. to counsel.” denied his Oliver was right the trial Likewise, Calamese, asserted to the defendant in repeatedly se, in fact and the record was wanted to court that she proceed pro into not the trial court attempted silent as to whether or inquired However, attorney counsel. Calamese’s “stand-by” waiver of role her trial examining assumed an active as attorney, immediately evidence, and to all of the objections presenting making that the trial court’s error in fading defense. This court held lengthy conduct an was rendered moot Calamese’s by subsequent to inquiry her of the trial to attorney. relinquishment the We note that We with State’s agree arguments. State, that we held (1999), Bledsoev. 337 Ark. S.W.2d the or not the assistance of counsel whether stand-by question rises to a level where the defendant is deemed to have had counsel defense, for his waiver, assertion involuntary thereby mooting any be at the

is a that must answered looking totality question Bledsoe, Oliver, of the circumstances. 337 Ark. at 410 (citing supra; State, cases on 321 Ark. 900 S.W.2d 187 Our (1995)). Wicoff v. substantial, this issue demonstrate that the assistance must be such Oliver, that Id. counsel was defense. (citing effectively conducting Calamese, supra, supra). Bledsoe,

In this court first held that the trial court erred in inform the defendant of his constitutional failing explicitly However, case, here, to an the in that as it does State attorney.2 that, even if the trial court failed to inform the defendant of argued se, the risks of still error there was no because proceeding pro Bledsoe to his counsel. The relinquished representation stand-by There, Bledsoecourt counsel did not disagreed. actively participate trial; Bledsoe, in the defense most of the rather than his during cross-examined of the wit- State’s lawyer, twenty-four twenty-five nesses, raised and substantive argued only objections during trial, and his own counsel con- While presented closing argument. statement, ducted voirdireand held that this court gave opening to Bledsoe attorney “effectively relinquished” representation Further, once the to call witnesses. counsel’s State began although increased at the end of Bledsoe’s when he participation 2 Although the court warned Bledsoe that he would have to conform to rules failing of the the court did not court, comply procedures explain consequences knowingly intelligently with did Thus, those rules. this court concluded Bledsoe not waive his to counsel. *10 the reviewed instructions and handled the jury sentencing phase, this court maintained that Bledsoe was left to essentially represent himself most of the during proceedings. Here, trial Hatfield’s included performance only opening witnesses; however, and

statement cross examination six of every counsel, other of the defense was handled Harrod. While stage the to some in dissenting opinion Hatfield’s goes length assessing defense, deficiencies in his such are deficiencies not presenting relevant to Faretta nor are relevant when inquiry, they deciding whether he his to Harrod and whether relinquished representation summarize, Harrod’s or assistancewas substantial. To representation matters, Harrod handled all thirteen pretrial including hearings, full of voir dire of the cross examination day jury, of four state verdict, witnesses the DNA for directed (including experts), moving instructions, closing rais making argument, offering proposed jury ing objections, making closing argument sentencing stage Harrod, of trial. at Hatfield’s Unquestionably, request, provided Hatfield effective substantial in assistance his legal conducting defense. Harrod could have been in a better Certainly, to position Hatfield’s if defense Hatfield had not present chosen to make an se; nonetheless, to it when came attempt proceed pro to the actual case, of his presentation full discretion to Harrod as relinquished to how to conduct trial significant procedures responsibilities of two the three of trial. during days

The record in this case has been reviewed for other reversible error in accordance Ark. with R. 4-3 Ct. and none has Sup. (h), reasons, been found. For the aforementioned of con- judgment viction is affirmed. BROWN,Imber, Thornton, concur in and dissent JJ., part in part. Brown, Robert L. Justice, in concurring part; dissenting I with that it part. was error agree majority trial not court to into Hatfield’s inquire understanding legal Thus, I, and the serious process implications self-representation. too, conclude that there no was or waiver his knowing intelligent counsel. to See Faretta v U.S. 806 California, (1975); State, Bledsoev. 337 Ark. 989 S.W.2d 510 (1999). I Where with the is on whether part company majority Hatfield, himself, after he decided relinquished counsel, Dave Harrod. The for this representation standby test

331 was at trial assistance counsel’s standby is whether determination a defense. conducting effectively that counsel was such substantial State, S.W.2d 690 Ark. 918 323 State, Oliverv. v. Bledsoe supra; State, (1982). 635 S.W.2d Ark. v. Calamese (1996); the third dire and for voir did as counsel Harrod assist Dave While a conducted trial, that he effectively conclude I cannot of the day know Hatfield on whether this case turns defense. Accordingly, stated, As already to counsel. waived and intelligently ingly I do not believe did. was a situation. in this case hybrid court created

What the trial Hatfield was allowed try Yet relieved as counsel. Harrod was not that of his differed from defense because his strategy his own case counsel’s: standby case. on the So still Counsel you’re

The Court: — Standby clear, Yes, I I want to just sir. just [be] Counsel: case in his with the Mr. Hatfield’s desire is proceed that Judge, Defense method not match the fashion. And his method does own to go- I think his decision and rather than appear loggerheads — — in a sitting And I I think that forward is is reasonable. can, know, I if he calls I can be assistance. where I you position comes up bit. If there’s that any question don’t mind that a doing not personal I don’t mind that at all. This is answering on his part — — it’s just just Trial The Court: strategy. Standby methodology Trial and case strategy Counsel: —dis

management disagreement. state- himself The result was Hatfield opening represented witnesses. The results were cata- ment and the first eleven through that his Hatfield’s admission footprints as evidenced by strophic were at the crime scene: And, ah, the tracks?

Hatfield: what about Okay. Deputy footprints I made no reference to whose Sheriff: a true statement. were. they That’s —a I’ve got Sure did. Sure did. I’ve you you got Hatfield: — 991202, ah, that is is copy number 9912060391K87. What lab left and shoe print. of my At Hatfield all the State’s witnesses until the questioned told, All third the trial. there were witnesses. Of day twenty-one those were eleven handled Hatfield. Those solely eleven witnesses included seminal witnesses for the prosecution, forensic witnesses: including (cid:127) Ireland, mother; Cordellia victim’s (cid:127) arrest; State Police Dustin Trooper Rogers, regarding (cid:127) Wehr, FBI Daniel 29 exhibits from crime Agent regarding *12 scene; (cid:127) Allen, Sheriff Detective regarding fingerprints; Jack (cid:127) Ward, exam; Sheriff Detective Terry rape regarding

(cid:127) Dunn, FBI Kenneth fingerprint specialist, regarding fingerprints; (cid:127) Sheriff Lonnie Deputy Massey, victim regarding transporting to hospital; (cid:127) Houchin, Sheriff Richard Deputy chain of regarding custody (20 crime scene exhibits exhibits admitted without objection); (cid:127) Collins, Medical Resident kit Gwynetta regarding and rape exam; rape (cid:127) Knuckles, FBI Lab Instructor Monica chain of cus- regarding and tody; (cid:127) Sellers, State Police Criminal Investigator Lorelei regarding victim interview and condition. It was the forensic evidence that was in most Hatfield’s damning Hatfield, course, case. knew about chain of the nothing custody, kit, of a or

handling rape scientific fingerprint matchups, specialized forensic the State adduced the time Hatfield testimony during result, was at the helm of own his defense. As a I am hard-pressed conclude that counsel conducted a defense. Not standby effectively did not make the statement only or cross-examine the opening State’s first eleven he called no witnesses for the defense at all. cases, The relies on the Oliver majority heavily Calamese

but the in facts those cases are from the facts of easily distinguishable this case. This court in observed the Bledsoe decision: Calamese, In was no supra, there evidence of any by inquiry counsel,

the trial court into waiver of appellant’s but attempted we determined that the had been appellant effectively represented at trial to assist her. We noted that the attorney appointed attorney role as “immediately assumed active trial fully attorney, cross-examination, making the entire interrogation, conducting exhibits, a defense with presenting to evidence objections witnesses, including eliciting and four defense

numerous exhibits clos- a forceful making from the defendant and lengthy testimony Id. with evident familiarity.” all of which was done ing argument, facts, was not left to represent we held that appellant Under those denied her and she was not any stage proceedings, herself Id. to counsel. Oliver, effective waiver was obtained no Similarly, supra, elected se and counsel standby when the defendant to proceed pro Calamese, trial. As in we affirmed the was to assistduring appointed where, of the defendant’s cross- conviction with exception witness, of the first State counsel cross- standby examination witness, each State made State’s objections during examined case, verdict at the conclusion a motion for directed presented Further, Id. counsel recalled the State’s standby State’s case. witness and examined him as well as the six defense remaining first witnesses. Id. Counsel also made the Id. Under closing argument. circumstances, that the defendant was not such we held denied counsel advised the standby only to counsel because not defendant but him most of the “actively represented during pro- and the defendant ceeding,” “effectively relinquished representa- *13 tion counsel” in the standby early added). to his trial. Id. (emphasis Bledsoe, 410-11, Ark. at 337 989 S.W.2d at 514. a substantial and effective defense means more than

Mounting State witnesses the third of the trial. In cross-examining day Calamese, defense counsel numerous witnesses and exhib- presented its, made the defendant on objections throughout put Calamese, the stand. There can be little doubt the standby Likewise, counsel a defense. in Oliver actively standby pursued witnesses, counsel called six defense recalled one of the State’s and made State’s case. Look- objections throughout Oliver, it is from an Calamese those ing apparent inspection facts that counsel was involved in both cases defense sufficiently have formed and defense implemented strategy. sum, himself,

In Hatfield chose to but he did so without made aware the trial court of being sufficiently Faretta v. See Cali dangers disadvantages self-representation. Thus, the record in this case fails to establish that fornia, supra. See knew what he was and made his choice with doing eyes open. remand for a new trial. id. I would reverse and 334 Thornton,

Imber and JJ., join.

Maxine NEELY KANGAS Gary v. 01-135 S.W.3d Court of Arkansas

Supreme delivered October Opinion