*1 accepted standby attorney, but he coun- always been the
sel for assistance. that standards
general rule Oklahoma required the federal
higher than what courts, required for our trial
courts are vary from that reason to I can see no types cases. requirement these
general results
Otherwise, I reached concur
in this decision.
Danny PARKER, Appellant, Appellee. Oklahoma,
The STATE
Nos. F-76-454. Appeals
Court of Criminal of Oklahoma.
Nov. *2 Neal, Neal, Steidley Jr.,
Charles & D. McAlester, appellant. Gen.,
Larry Derryberry, Atty. Robert L. Mash, McDonald, Gen., Toby Atty. Asst. Intern, Legal appellee.
OPINION BLISS, Judge.
Appellant,
Parker,
re-
hereinafter
ferred to
co-defend-
“prosecuting (sic)
or
defense
charged,
their
ant,
case
Johnson,
Lonnie
were
C.
Court,
diligence.”
refusing to dismiss
due
District
with
tried and convicted
found
the federal court
Pittsburg County,
Cases Nos. F-75-176
“good
show
Kidnapping,
had failed to
defendants
offenses of
that there was
Felony, in
in their letter and
cause”
of a
After Former Conviction
O.S.1971,
“nothing in the files and records
In Case
violation of 21
§
*3
ineffec
F-75-176,
that counsel was
case” to
kidnapping of Kim
show
the
No.
in the
procedure
reasoning and
Thomas,
fixing
The
a verdict
tive.
the
returned
to this Court.
Stephens case seem sound
twenty-five
at
punishment
defendant’s
the
completely in this
apply them
imprisonment.
would
In Case
We
years’
(25)
case,
Stephens
contrary
is
except that
of
kidnapping
the
Paula Work-
of the
fixing
subsequent landmark
man,
decision
jury returned a verdict
in Faretta v.
Supreme Court
ninety-nine
States
punishment
(99) United
defendant’s
at
2525,
806,
45
California, 422
95 S.Ct.
U.S.
years’ imprisonment.
sentences were
Both
Faretta
(1975).
established
of the L.Ed.2d 562
verdicts
in accordance with the
independent
fundamen
a defendant
juries.
judgments
From each
these
guaranteed by
Amend
appeal
right
tal
the Sixth
filed an
sentences the defendant has
Constitution, ap
ment to the United States
assignments
with this
Since the
Court.
through
plicable
the Four
to the
overlap,
States
appeals
we
error raised
these
Amendment, to
himself
represent
teenth
consideration.
have
them for
consolidated
if he
stages
all
of criminal
testimony
at trial
con
presented
The
force
so.1 A trial court cannot
elects
do
cases
summarized
nection with
two
accept
refuse
counsel or
a defendant
in the
today
in the
down
decision handed
de
if the
appointed
court
counsel
dismiss a
Johnson, Johnson
appeals of co-defendant
represent
elects
himself.
fendant
State,
(F-76-449
Okl.Cr.,
1285
v.
556 P.2d
F-76-450, 1976).
Faretta,
this
held
Prior to
assignment
is that the
The first
of error
right
that an accused
waive
determining
that the
trial court erred
himself,
this was
counsel and defend
but
voluntarily, knowingly and intel-
defendant
discretionary
for the
court
matter
right
when
ligently
counsel
waived
Okl.Cr.,
State,
Davis
368 P.2d
decide.
v.
appoint-
court
release his
he had the court
Barnett,
Accord,
(1962).
parte
67
519
Ex
argued,
it
attorney.
ed
300,
Howing
(1939);
94
Okl.Cr.
P.2d 18
did
plainly stated he
not
repeatedly and
State,
P.
ton
235
931
v.
30 Okl.Cr.
get
only to
represent himself but
want to
State,
224
Polk v.
26 Okl.Cr.
(1925);
appointed attorney.
some
new court
Since
had no
194
The defendant
(1924).
P.
the issues raised
himself,
merely
right
complicated
more
than
are
it fea
if
found
opportunity
court
Johnson, we
co-defendant
those raised
knowing,
and the defendant
sible
upon our
opportunity
take this
to elaborate
voluntary
intelligent
waiver
State, supra.
holdings in
v.
indulged ev
right to
This Court
counsel.
against a
ery
presumption
waiver
Stephens,
reasoable
315
United States v.
guaran
constitutionally
of the fundamental
(W.D.Okl.1970),
F.Supp.
the defend
1008
See,
g., Davis v.
right to counsel.
e.
teed
requesting
judge
ants sent the trial
a letter
only
supra, at
fundamen
520.
appointed
dismissal of their court
rights
to be
tal
were
alleging
in their
he was not “interested”
“
right
contrary,
must
On the
.
.
.
1.
concern is with an inde
.
.
. Our
right
independently
self-representation.
in the structure
pendent
found
be
history
We
(Em
test.”
suggest
constitutional
of .the
arises mechan
do
California,
,to
original)
su
power
phasis
pra,
ically
Faretta v.
waive
from defendant’s
S.Ct.
95
n.
assistance of
represented
ap-
right,
to have an
understood that
affirmatively
counsel
See,
pointed
indigent.
were
declined
counsel if he
to avail
it.” Miles v.
States,
State, Okl.Cr.,
United
g.,
e.
Stewart
v.
at 543.
(1972).
rights applied
misde-
These
States,
In Snell
United
F.2d 580
g.,
meanors as
as
felonies.
e.
well
(10th
appeals
1949),
gave
Cir.
Okl.Cr.,
Mure v.
defendant has an
fundamental
competent
waiver
[of
counsel].
forego
two fundamental
these
duty,
To discharge
[trial]
rights
represent himself,
and elect
must investigate
long and
thoroughly
as
indulge presumption
Court will
longer
no
as the
reasonably
circumstances of
case
against
long as
the State so
the record
States, supra,
demand.” Snell
United
clearly
establishes that
defendant’s
(Emphasis added)
*4
voluntary.
election
and
intelligent
was
longer waiving
The defendant
funda-
is no
applying
above
standards to
rights
represents
mental
he
when
himself
bar,
case at
that
we find
the trial court
merely
mutually
but is
ex-
electing between
did not
finding
abuse its
discretion
that
rights.
clusive fundamental
Where
de-
the defendant elected
his fun
to exercise
competent,
interpret
fendant is
we
Faretta
Here,
right
represent
damental
to
himself.
as negating a
require-
counsel
waiver
trial,
some months
trial
before
court
represent
ment before a
can
defendant
appointed
counsel for the defendant.
waiver,
himself. Since
is no
there
this
than a
less
week before
presume against
Court cannot
the defend-
replace
trial was
begin, sought
due to
to
ant’s electing
represent
himself. All
appointed attorney.2
The trial court
previous
contrary
holdings
by
explained to
that
had a
the defendant
Court
specifically
are
overruled.
personal
counsel,
right
appointed
to court
In determining
right
choosing.
which
but no
fundamental
to a counsel of his
right the defendant has chosen
persisted
to exercise
defendant
that
his demand
right
—either
appointed
replaced
given
retained or
counsel be
was
counsel,
represent
going
or the
trial
alternative of
with
appointed
—the
releasing
appoint
facts must be reviewed on a case-
counsel or
by-case basis
that
ed counsel
Aft
representing
to insure
the election
himself.3
was
him
knowing, intelligent
er the
defendant elected
trial,
voluntary
by
aris
at
manner. Two federal cases
self
he refused
offer
ing
Oklahoma,
attorney
although dealing
appoint
trial court to
the released
with
counsel,
waiver of
applicable.
standby
sit at the defendant’s
are
counsel to
during
table
offer the
trial to
defendant
States,
In Miles United
1302 F-75-178, preju- which
In Case No. the de abuse discretion bar, assignment In the case of error diced the defendant. fendant raises as an court, appointment to see how the upon the defend Court fails that the trial based standby F-75-178 put in Case of counsel Case No. ant’s on defense failure failure to was the defendant’s appointed should have mandated No. F-75-176. make a standby Okl. defense Case Stiner v. trial first The defendant’s action at the first Cr., (1975), 750 P.2d standby coun- showed he had need for Faretta decision. no dealt with the self-rep law. At the first sel advise him on the recognized there that the trial, put on trial he refused resentation terminated defense. could be putting on difficulty He a de- supra, at 753. did have Stiner v. court. self-rep through ignorance fense law. Nor judge may terminate “[T]he standby coun- appointment would the resentation a defendant who deliberate from sit- prevented the defendant ly engages sel have in serious and obstructionist ting through the second trial. California, mute misconduct.” Faretta v. not a and has 2541, standby counsel is co-counsel n. 422 U.S. 95 S.Ct. He authority no act for the defendant. urged at 581. This Court L.Ed.2d defendant. particular strictly at is there to advise the pay courts Oklahoma State, su- As this Court noted Stiner v. tention to section of footnote another Stiner, pra, incorrectly “there no constitutional cited as footnote pro hybrid representation partially se recognizes may, that a trial court *5 ap partially and objection by counsel.” even over the of a point standby a counsel. Stiner de Case No. the that But held in at it was not assigns fendant the trial court’s as error decision, State, supra, or in Johnson that exclusion of him from the courtroom with appoint standby counsel. court must him making out first enter the courtroom. though strongly this encour Even Court proposition. This is a frivolous defend ages appointment standby the trial, during be present ant has a to 1285,it supra, at remains Johnson v. up right. the give but he that case to discretionary for trial court matter the bar, the refused to enter the trial This will not disturb a decide. attempts by depu courtroom and resisted place unless there has been a clear ties him As a result he court’s action to there.5 5. “THE .there out of sion. ously chambers themselves. that with this that courtroom chambers, session at selves. mean these two defendants trial at peacefully defendants been indicated to record can show they also themselves These hearing I case, 9:30. COURT: them, will have a goes immediately 9:30, the two defendants and as was accompany also are this trial. ,then These with it the matter point proceedings The court ,that that attorneys prospective to defend adjoining out to the defendants again ,to represent appear they I pointed obligation advised being guards is do not intend are representing now themselves, are jurors. out F-75-178. called goes into into both of present one court’s in ses- to de- previ- them- time, erly, “THE COURT: nie fully if needed. and it will be reporter trial? now in the “THE COURT: “MR. “THE COURT: trial? go told Monday. chance “Gentlemen, “MR. “MR. into you. [*] and will PARKER: PARKER: PARKER: * to is the appears We go present [*] Do are record, accompanied courtroom to preserved be don’t Your name is? you prepared you present .the The record I . to demean and is No, [*] don’t. know the law desire to . we Parker. to during you taking library appeal purposes, [*] I haven’t commence can show will note and guard will law, this trial. attend this until ready ask [*] had like peace- down, prop- Lon- this this last you to I force, free at placed, nearby in a room was all times attend if the trial procedure so chose.6 used proceedings. He where he could hear you appear “MR. PARKER: I realize that. desire to “THE Do COURT: you Parker) (Speaking “THE Is that what want? to Mr. COURT: this trial? attorney. just No, an “MR. PARKER: I I am not. “MR. PARKER: want you no,t going presume “THE COURT: That is out. Do want I am “THE COURT: jury you to be tried in or the courtroom room? that endeavor cause trouble. will be “MR. without an I don’t want to tried that if there is trouble PARKER: Let the show record attorney. peaceful orderly —so been a far it has ,two you appeal, hearing. “THE choices. Do COURT: You have I counsel on will afford you you you go want to be tried in the courtroom or into if desire. Do want so elsewhere? now? courtroom going I am not to make a “MR. PARKER: “MR. PARKER: No. you choice. I understand “THE COURT: .think going manpower you put to assume the “THE COURT: am is sufficient there proper place forcefully. If there is the courtroom. in the courtroom outbreak, you No, sir, an removed and held is in the will be “MR. there not. PARKER: is hearing you out of the witness room “THE Do desire hear the COURT: proceedings. the trial out of than other courtroom? you you I mention that you so will know what “MR. PARKER: is that? Where you you will be do. If behave “THE You can be held want COURT: not, courtroom, they juryroom if allowed will and hear the trial. you No, sir, remove to the witness I don’t that. “MR. PARKER: “THE want going in there “MR. Take me PARKER: I am not force COURT: you your open, case— is co- The door to .trial. Why peacefully “THE is that? COURT: seated at counsel defendant is table, you I want counsel “MR. PARKER: Because to attend this trial? do want attorney go No, me. want there with “MR. without PARKER: part way you at least fair trial. do “THE That Now COURT: out. Johnson, right. Mr. “THE All COURT: want this trial? to attend (speaking guard) No, officers and the “MR. not without counsel. PARKER: you charge, you you this time to I will direct and do assure “THE Can COURT: your If the courtroom. escort the defendant into me if attendance forced that resists, go you yourself proper then not to in a chooses will manner? demean keep no,t No, going him room escort him to the witness there. “MR. say I am PARKER: attorney. that, without *6 you you saying going in Are there. “THE COURT: that I ain't “MR. PARKER: There is no intentionally disrupt way— in will the courtroom? “(SCUFFLE OFFICERS AS ENSUES intentionally, how “MR. Not but PARKER: INTO DEFENDANT TRY TO FORCE you expect do me— COURTROOM) THE Frankly, expect you I “THE to COURT: Parker, it has All Mr. “THE COURT: yourself properly in the demean courtroom. go you not want do to become obvious that into the courtroom. No, “MR. I can’t— PARKER: by reason of I direct going I am this. “THE to do COURT: put you him in the direct that his action you going am into to instruct delivered pending him hold room and there to witness further order of the court the courtroom. case. .this put you “MR. PARKER: Will handcuffs “(OFFICERS PARKER TAKE MR. OUT on me? STRUGGLING)” OF CHAMBERS STILL you your request may be “THE At COURT: through and all handcuffed trial, this time right, show these All 6. “THE COURT: you are the record will show that proceedings hearing out of the chambers held your request. you re- handcuffed at questing Are prospective jur- presence all to be time? handcuffed at is returned The Parker ors. the court’s chambers defendant say fight- They “MR. will I am PARKER: room from the witness ing, people. is not these That true. courthouse, that the second floor of the on being showing any- “THE not be COURT: will courtroom, as the on the same floor thing body. you fight true, that isn’t unless some- question. purpose of this [Parker], going been selected and “Mr. “MR. I am not PARKER: into try ready impaneled sorry. this cause. to be I am courtroom. panel, tried to Your case will be “THE You have a to be tried .this COURT: again opportunity you sitting jury. once I offer in the witness at bar in U.S. The trial trial court the case is similar 95 S.Ct. court by Presiding always duty that has a that each ev- effect to recommended see opinion concurring ery be Judge duty Brett trial is fair. This cannot in- decreased, State, Okl.Cr., Peters or A defendant creased represent had the dis- (1973). electing The trial court himself cannot force court- cretion seat the defendant the trial court to become his counsel or bar, room, Peters In the trial gagged. bound co-counsel. the cases at supra, help its the de- way This alternative was of- out of went F-75-178, was action as noted fered to the Case No. fendant. part above, court- obligatory not on the of the trial the defendant not was court, proceedings. but the refused it. For room but he could hear hold, argues, participate in as the defendant He was free to return and Court time, procedure re- any followed the trial At could have trial. he encourage a objected turned and evidence or is reversible error would procedure disruptive delay improper. a trial felt He chose not defendant to be indefinitely. This be to do cannot heard to com- cannot condoned. so and now be plain. assign next defendant’s assignment ments of error In Case F- next of error is are novel. No. 75-176, argues closing attorney during the defendant the trial the district court, by discharging argument improperly upon virtue of the defend remarked per testify ant’s in Case assumed but failed defendant’s failure No. duty objec form a that the F-75-178. The statement which insure trial, including raising upon received a fair tion is made was a reference to a comment its own motion which was objections. Johnson, No. co-defendant Case F-75-178, argument duty slightly during closing it said that the became broadened stronger penalty phase During on the trial. because the defendant present Highway cross Patrol proposi These examination courtroom. tions, Court, Trooper Fitzpatrick, co-defendant up it seems to this are dressed Gene said, arguments to me if I incompetent “It don’t matter counsel. This Johnson notes, get the truth to years, a million but I want we did Johnson v. supra, out, (Case come . . .” that the defendant cannot argue incompetent During argument the dis 86) closing counsel as a basis for Tr. attorney said, trict Lonnie when he “If elects himself. if he and don’t Faretta v. doesn’t care California, Parker n. tend to turn you will Do torney. waiver “THE COURT: “MR. PARKER: trial? “MR. “THE “THE COURT: “MR. PARKER: No I don’t. every stage using appear appear the courtroom for you * PARKER: COURT: You have a of now force. properly and your of the *7 * desire to court on my demean right I am proceedings. No, demean I courtroom am * have I am not trial, attend construing your yourself properly offering yourself a appear * right right statement quietly into a circus waiving you I ,to to an in court. in court. don’t * in this appear it. at- in- a “THE with the shown? lowing quires turn him to TAKE PARKER “MR. torney.” of “MR. PARKER: “THE COURT: attorney. appear the [*] PARKER: of hearing COURT: ’ a assurance Mr. break again [*] the Parker, and for the for witness Let are heard TO (To guards) No, Parker No, presence # lunch. the record WITNESS ‘If not without balance will no violence you and [*] of the Present not without would the chambers you of show these (GUARDS ROOM) may [*] will be like to an at- is the trial, fol- out in- re-
1305 years, victed in they get if a million don’t the cases bar. On December care 9, 1975, they get years. (Case No. F-75-178. Tr. 108) if this Court reversed the denial of care million 108) post petition the defendant’s conviction No. F-75-178. Tr. remanded it District Court for of the entire careful review evidentiary hearing to determine whether up the transcript in this case fails back plea knowingly and in- the defendant’s allegation. defendant’s In Kennamer v. 29, 1976, telligently January entered. On State, 146, 646 (1936), 59 Okl.Cr. P.2d 57 hearing the District Court held a argument held that of again post denied conviction relief. This contemplates at trial a liberal freedom of 16, April denial on Court affirmed the speech, discussion, range illus of 1976, The defendant PC-76-130. tration, argumentation is wide. Coun support assign- cites many cases sel for both the State and the defendant mistakenly equates a di- ment of error but have a fully to discuss from their appeal post proceed- rect conviction with a standpoint evidence, any inferences ing. Okl.Cr., State, Yoder v. 508 P.2d arising or deductions only from It is it. 1119, (1973), pinpointed this Court when grossly improper the State is and un judgment the time and sentence be- when a upon point warranted some final, comes as follows: rights have affected a defendant’s that a opinion judgment reversal “We are of granted will be improp because of argument. State, point er sentence became final at the Kennamer v. Accord, perfected in time the was not Okl.Cr., record Klinekole v. 2.3, compliance with this Court’s Rule (1969), P.2d 623 Wing By non-compliance Okl.Cr., subd. A. with (1955). Without 2.3, A, non-filing Rule of the showing some subd. prejudice, which is en designation days, juris- in 10 tirely lacking of record in both the record and briefs case, of this diction was not established this Court. say this Court cannot that the Consequently, no issue on the merits of attorney’s district statement was more than appeal presented rendering erroneous could be slip tongue. of the case, final at the judgment and sentence objection defendant made no expiration ten-day The period. the remark at trial and has waived his judgment and sentence then became ad- to raise appeal. the matter in his pro- stage missible at second of trial The assign next defendant’s ceedings for subsequent prosecution in a ment of error is that evidence of the punishment enhancing purpose of prior defendant’s forgery conviction was inadmissible to prove element logic the adopt prior If this Court were to purpose offense urges, render 21 O.S. it would punishment. enhancement of He ar im-
gues 51, useless and make it almost the conviction was under § punishment possible and not to ever enhance the final. defendant was con person after former conviction Kingfisher victed in convicted Forgery County of formerly con- felony. Every time a of a Degree the Second on October a subse- being tried on victed felon was Case No. This CRF-74-301. conviction to do quent charge, would have all he appealed. was not in the informations re- application post conviction file an cases at bar July were filed on after always available *8 lief—which application post filed an sen- after the even judgment sentence conviction in Kingfisher County relief could avoid he Court, completed tence is PC-75-712, District which was —and Post enhanced sentence. denied on conviction October The defend im- title exactly appealed proceedings are what ant the denial to this Court. challenge convictions. November, 1975, plies: A the defendant was con- judgment may represents final one interests in the court- and sentence become Likewise, designation file of Faretta v. for a failure to rec believe Cali- fornia, in supra, misapplied supra. ord. Yoder v. How this decision. ever, in a The record before this Court does not indi- all when an from cases felony perfected repre- been cate that this defendant conviction not elected himself; of the (6) this Court six months sent nor is the record clear that within judgment ap- of and sentence the defendant elected not to rendition have court pointed counsel, by law, except that he did not provided judgment said manner appointed want the pun counsel the court and sentence be used enhance subsequent trial him. Once it became clear that the de- ishment under O. himself, notwithstanding representing fendant S.1971, 51; right to was not § duty collaterally challenge provide rep- under him with the conviction Act, However, pro- trial Procedure 22 O. resentation. Post-Conviction S.1971, ceeded this seq. defendant was left without et §§ representation I cannot whatsoever. This remaining assignments The defendant’s approve. fully of ad- error—the defendant not against gravity charges vised of of likely consequences waiving
him nor the of
legal counsel, and the of er- accumulation
rors made it error for the trial court to
refuse new trial—-are without merit
light holdings. above reasons,
For all above and foregoing
the judgments appealed and sentences from
are, accordingly, AFFIRMED. Wayne KING, Appellant,
Wilbur BUSSEY, J., concurs. Oklahoma, Appellee. STATE
BRETT, J.,P. dissents. No. M-76-393. BRETT, Presiding Judge (dissents). Appeals Criminal Oklahoma. respectfully dissent to this decision. 22, 1976. Nov. record, As did I view the Rehearing Denied Dec. process not in his trial. receive due of law However, making I do this evaluation judge. every
not He fault the made
effort to assure that the defendant was
present in him the courtroom wanted But, appointed
to have court not- this,
withstanding when the defendant
not and has no one courtroom interests, I
courtroom can- agree a fair trial. received know, provi- no far as I there are
So system jurisprudence our
sions
approve “in conducting ab- Admittedly, provisions have been
sentia.” placed defendant to be an- conduct
other room when he refuses to such cases some- properly,