*1 “The failure of defendant for appear completion his trial presented after the State has in prosecution its case of the defen- dant, may is circumstance which you be considered connec- tion with all the other you evidence to in determining aid his guilt or innocence.”
Appellant
authority
his brief argues that there is no
for the court
to give such an instruction and contends that it is improper
give
an
instruction which
jury
authorized the
to make an inference of
from
guilt
the defendant’s absence from the
this case the court received
no explanation of the defendant’s
sought
absence and
none.
Under
appellant’s
circumstances
absence
part
wholly
from
last
of the trial is
ambiguous and cannot support any inference
the accused’s
regarding
guilt or innocence. This instruction created evidence where there was
none,
was, therefore,
clearly
A
erroneous.
new trial
be
should
ordered.
Reported at
Note — Henry
James Russell State Indiana 1278S291. Filed December [No. 1978.] Cholis, of South Bend, Paul T. for appellant. Davis, Sendak, General, J. L. Susan
Theodore Attorney Deputy At- General, torney appellee. *2 convicted of —Appellant second-degree J. Russell was
Pivarnik,
Superior
trial in the St.
jury
Joseph
at the conclusion of a
Court
burglary
19,1975.
term
sentenced to an indeterminate
December
He was
on
years
appeal
Appeals,
to the Court of
Third
imprisonment.
five
On
two to
Hoffman, J.,
District,
per
Russell’s conviction was affirmed
appellant
Staton, J.,
Garrard, J.,
concurring
and
in
specially
part
concurring
with
Russell v.
case lawyer force a the state cannot holding and representation, case, ap his will. against considered on the defendant of self-representation he was his right Russell claims that denied pellant court, by interpreted contrary to the Sixth Amendment as the trial by Faretta. necessary to resolution the questions presented
The facts are for the being second-degree as follows. After arrested crime burglary, court counsel open August without on 1975. appellant appeared appellant indigent, The court at this time found Public appointed him, Paul and continued the case for represent Defender Cholis eventual arraignment. Appellant arraignment pleaded guil- recognizance. was bond on own On ty, August and released without his 27, 1975, was counsel assigned Judge Kopec, the case were September purpose setting ordered to on for the a trial appear 26,1975, case set for on On was trial December September date. Discovery were and a motion procedures subsequently completed, on unspecified grounds for continuance was denied on December 16. 18,1975. set, as began, Trial December The on that proceedings follows, court, as with began between the following colloquy appellant, attorney Mr. appellant’s Cholis:
THE COURT: This is criminal cause number the State Harvey Harvey Indiana vs. you James Russell. Are James Russell? Yes,
THE DEFENDANT: sir. THE The appears by COURT: his person and Cholis, Timothy Paul and the State appears What
McLaughlin. you record do wish made? Honor, MR. CHOLIS: I Your believe it is an time appropriate Court, now to inform the I as think it was indicated properly this, prior to that the defendant desires to conduct his defense. He feels that he is a competent attorney in his own behalf. He has had experience some and has done some research on the case the case of Faretta I we California, believe have a situa- tion here which is says, not dissimilar and which if he makes *3 the he request, does indeed have a to in conduct his trial you his own behalf. Do say have in anything to addition to that? Honor, that,
THE DEFENDANT: Your I feel under the circum- case, case, stances the I of have knowledge more I that my would be more competent behalf to conduct the trial myself. only
MR. CHOLIS: If I might add the something, distinguishing the facts here from the Faretta case is that the indica- case trial, given tion is now to the Court on the of at a or least trial, days of couple before of the defendant’s wish to conduct own his defense. This is distinguishable from the re- I quest prior. that made
THE COURT: The to official indication was made the this Court
morning jury when the is is jury called here and the fact is that the defendant has a Public Defender and has made no request represent himself until the last The minute. Court deny say, will will I request trial will if there proceed. covered, anything fully that he feels is not can being we have you you a recess and can me what wish to tell ask. questions If I I com- person competent, THE DEFENDANT: believe am myself. to take and defend Me and Mr. Cholis have had petent very little I think he contacted me one week before the contact. through trial and that was someone else. inability been the of him problem
THE COURT: Part of has correct, you. Mr. to reach Is that not Cholis? Yes, days I him attempt eighteen MR. did contact CHOLIS: prior to the trial. jury. in the bring
THE The has ruled. Let’s COURT: Court The record dire of the was then conducted and concluded. does jury Voir for was made any representation not indicate that se request pro above, day Motion Appellant’s trial discussion. to Correct Errors court, and his Appeals, in the trial his briefs appellate all argue appellant’s to Transfer this court state and Petition morning se was on the pro request made decision, three with split in this case reached of Appeals
The Court but held properly se was pro Appellant’s opinions. State, supra, of the case. Russell v. facts the basis the particular time, (Garrard, judges At same two concurring). J. N.E.2d at Faretta pro- for the resolution five-part guideline to a agreed have be used in future presumably would guideline which questions, cedural (Garrard, things, Id. at 881-83 other these concurring). Among J. cases. of self- the advisement of the procedures guidelines propose either whenever the defendant arraignment, at expresses trial or dissatisfaction before accepting counsel hesitates also proposed has Appeals The Court during trial. with counsel court, into inquire must “complaint,” such point at the importance on it. Because of hearing factual conduct a it and here, comprehensively not yet has which court raised questions transfer, Ap- discussed, the Court opinions vacate we grant case, for reasons of the trial court judgment and affirm in this peals now be discussed. will which *4 in- overriding there are three
Initially, recognized it must be ques- procedural resolution of in the must be balanced which terests First, right is the to self- there context. self-representation in the tion
59
itself,
has held
States
Supreme
which the United
representation
Sixth Amendment. Faret
history of the
language
in the
implicit
to be
2532-39,
818-32,
Johnson v. 58 S. U.S. Ct. L.Ed. However, it does not follow that the relinquishment can come about self-representation through process by say measured such waiver It is not enough standard. that both the right to counsel and the are constitutional from the Sixth rights, and that both arise Amendment. Rather, establishing the standards of constitu relinquishment consideration, vary rights tional with the nature of the under Bustamonte, See, e.g., Schneckloth v. the interests protected rights. 854; Barker v. 218, 93 2041, 36 Wingo, L.Ed.2d S.Ct. 2182, 33 101. The counsel ensures U.S. L.Ed.2d knowledge that all defendants have access to the skill and professional *5 60 necessary and decisions in procedural
needed make the
substantive
trials;
of the
right
important
implementation
their
this
is also
the
accused,
accuracy
the
other constitutional
of the
and
ensure
rights
helps
adversary system.
of
outcome in our
v. Wainwright, supra,
Gideon
342-45,
795-97,
self-
right
at 372
83
We a waiver thus do not think that Accord, constitutionally self-representation of the of is mandated. right (1970) 32, White, 139 429 F.2d App. U.S. D.C. United States v. 711, 712; Denno, 348 rel v. supra, United States ex Maldonado (3d States, 16; F.2d at ex rel. Soto v. United Cir. United States 1974) (D.C. 1976) F.2d 1339, 1344n.16; States, 364 504 Tuckson v. United (1977) 138, 140; Salazar, 875, 888, 141 A.2d 74 Cal.App.3d v. Cal. People 1974) (Iowa 225, 226; 761; Smith, 215 N.E.2d People v. Rptr. State 322, 327, 364 16, 17, 324 N.E.2d N.Y.S.2d N.Y. McIntyre, Further, a why pro is we should create such new there no reason self- right that of the requirement, cedural and hold advisement Ap necessary. by As stated California Court Salazar, might suggest advices People such peals himself adequately represent that he could fact average attorney, “fundamentally it be unwise” and does not need an and would procedure to advise of the self-representation impose requirement defendant, which, by likely “is to be no one’s benefit.” if opted contrary Appeals’ intimations in the Court We of the disapprove case, that is no in the and hold that there requirement holding present any stage, self-representation right defendant be advised of circumstances, even cannot and that such advisements or under Therefore, Russell appellant procedure. as a preferred be characterized by absence self-representation his reason was not denied of such advisements in case. is that the just discussed necessary corollary principles
A
must be
self-representation
asserted
defendant before it can
Thus,
to have
be claimed
been denied.
if
defendant pro-
ceeds to trial with
without ever having properly
the right
self-representation,
asserted
will be
voluntarily
deemed to have been
It only
forfeited.
remains to discuss
asserted,
when
how and
of self-representation must be
this is the central
problem presented
case. In the case
Anderson
Ind.
cert.
1273, 55
we held
L.Ed.2d
first
of an
requisite
assertion
that such
assertion must be clear
unequivocal.
The assertion must be “suffi
*6
ciently
that
if it is granted,
clear
the defendant
should not be able to
Id.,
turn about and
that
urge
he was
denied
improperly
counsel.”
370
N.E.2d at 320. Half-hearted expressions of dissatisfaction with counsel
general
and
references
to self-representation,
the defendant
such
Anderson,
as those in
would
to
fail meet
requisite.
requests
Also
essentially
that are
“hybrid”
for
representation would fail
be
clear
(N.D.
1976)
Gaines,
See,
e.g.,
United States v.
unequivocal.
Ind.
416
then,
F. Supp. 1047. This procedural requirement,
from a
arises
balanc
ing of
three
the
interests
previously discussed:
the
of self-
right
representation,
right
the
and the interest
in preserving order
ly processes justice.
criminal
Without the clear
asser
unequivocal
tion
“trial courts
requisite,
position
would be in a
to be manipulated
by defendants clever enough to record an equivocal request
proceed
without counsel in
expectation
of a guaranteed error no matter which
way the
Anderson,
trial court rules.”
supra
370
N.E.2d
320-21. In the
case, the
morning of trial representations
by appellant
made
attorney
and his
Anderson standard
met the
a clear and unequivocal
However,
assertion
the self-representation
right.
requisite
second
proper
assertion
is in
here:
question
timeliness
assertion.
The court decisions
recognizing
constitutional basis
self-
representation,
agree
before and after
must
be
asserted,
timely
requisite
and that this
is a
limitation of
proper
right.
(2d
1976)
Vincent,
1007, 1010;
Sapienza v.
States
534 F.2d
United
Cir.
(1975)
16;
Denno,
ex rel. Maldonado v.
supra,
Barnes v.
258 S.W.2d Ark. 1190-92, cert. 126-30, 1187, Cal.Rptr. 8, 11-13, 560 121, P.2d 19 Cal.3d 137 (1977) 116; Nix, 157, 848, 54 L.Ed.2d State v. 98 S.Ct. 353-54, La., 301, 327 So.2d cert. nom. denied sub Fulford 198; 1732, 48 Louisiana, L.Ed.2d People 425 S.Ct. U.S. 574, 351, 354, 334 Reason, 372 N.Y.S.2d 37 N.Y.2d 1977) (5th States, 614, 616. Cir. F.2d Chapman also v. United See however, how the timeliness re- disagreement, is about 893-95. There Essentially, two have approaches phrased applied. is to be quisite by the the Fifth is best Circuit exemplified opinion been taken. One States, which an assertion of holds that supra, v. United Chapman timely if “before the jury is it is made self-representation by the approach, Supreme The other taken and sworn.” empaneled Windham, is that assertion People Court of California time to the commence- timely prior if it is made “within a reasonable “weeks made before itself the demand was ment of trial.” Faretta trial,” Faretta, L.Ed.2d supra, at U.S. early at that we do not think that the must be asserted
although a time to be realized. consideration
Upon of the various aforementioned interests involv ed in these Faretta procedural problems, we conclude that must be asserted within a reasonable
time on which the begins. Morning of trial untimely. are thus se requests per None of the in interests *7 here, counsel, the right volved self-representation, or in orderly interest an are preserving process, criminal furthered by in the allowance of a last minute such was made pre as hand, day sent other experience case. On the has shown that of trial of the self-representation right likely assertions are to lead to a rushed procedure, increasing the chances that should be the case reversed because some vital interest of the defendant was not adequately pro State, See, e.g., tected. 361 Ind.App. Wallace N.E.2d 43, 366 trans. 267 Ind. N.E.2d 1176. We do not think that assertion requirement pre-trial derogation a the Sixth Amendment It self-representation. thing is one to recognize that this exists as of the a matter defendant’s considered will and choice, Faretta; intelligent as discussed in it is another thing take autonomy an absolutist view of the personal interest which would en shroud last minute whim as caprice a constitutional Fur guarantee. ther, earlier, as mentioned a decision to se proceed pro is a relinquish ment the Sixth Amendment to counsel. This cannot be by voluntary, relinquished except knowing, a waiver intelligent Zerbst, under the rule of Johnson v. supra. Faretta itself mandates that established, such a record of waiver be and also advises that the pro se defendant should be dangers advised of the disadvantages self- 835, 95 representation. Faretta, supra, at U.S. L.Ed.2d State, See also 581-82. German at 882-83. In view language the Indiana and this Appeals court State, rejected have of Placencia v. position earlier 256 Ind. 314, 317, 613, 614, 268 N.E.2d which stated that an accused who had counsel, been expressly advised of the right and deliberately chose se, to proceed pro would be presumed to have considered the implica tions, consequences, and risks of self-representation. Wallace v.
supra. Since it is now required that the record affirmatively show waiver, something more terms of counsel we feel it unreasonable to expect that such a waiver can be established ain last minute, morning trial assertion of right. himself, time, Whether or not the at this longer respects counsel, his own right to it is clear that the court must establish respect for such right. We thus think that the defendant’s will right to counsel be best respected if we require pre-trial a assertion of the self- representation so right, that it subject can be the of pre-trial hearing and inquiry. Finally, orderly administration of the courts will be facilitated Day such a requirement. of trial assertions of the self- right, whether before or empaneling jury, after the time disrupt judges, schedules of and potential jurors, all occasion, who have been assembled for the and who can be assembled the expense money. extra time and The counsel waiver in quiry day may of trial also disrupt time of other schedules schedule, matters on the court’s which have been planned around the The question of what is “reasonable time prior on which *8 will, course, depend on the facts of each case. See of begins” the trial Windham, 137 Cal.Rptr. 128 n. People at 19 Cal.3d constitutional Respect P.2d 1191. must be accorded to defendant’s By this re self-representation in the construction of right requisite. trial, day only we to pro a “reasonable” time before intend quiring the defen self-representation right those of the which hibit assertions delay its This with merely judged seeks for own sake. can best be dant hand, at and the nature and involvement type reference case, complicated The more pre-trial proceedings. asser more involved the the earlier “reasonable” pre-trial proceedings, be, naturally tion will and vice-versa. err, did not as the Court
Finally, court in the case the trial intimates, into question a full this by failing hearing to hold of Appeals Hearings question self-representation on the morning asserted, by a clear and only right properly when the need be had day of to the first request prior within a reasonable time unequivocal defendant’s is to determine the purpose hearing trial. The sole this himself, of his waiver to establish a record competency represent se un- per was Since the assertion this case of his to counsel. deny it sum- trial court’s discretion to timely, it was in the completely any or hearing inquiry. no reason for marily, and there was thus in this case was summary, self-representation appellant’s unconstitutionally requirement There is no denied. or improperly any cir or under stage of that defendant be advised Rather, with a re which must be asserted this is a cumstances. be clear and une the' must request meets two requisites: quest day the first time it within a reasonable and must be quivocal, then, Then, on the self- hearing must a be held of trial. of Faretta. Any self- guidelines under the representation question, may later be summari of trial or made a matter point completely after ly “hybrid represen As with the question discretion. of the trial court’s State, tation,” 266 Ind. Bradberry see, e.g., 486, 490, 376 N.E.2d 268 Ind. and Swinehart but not a matter this case was denied option appellant grace. a matter argued in this Appellant
One other issue needs to be addressed case. support was in the that the evidence insufficient Appeals *9 The of held second-degree burglary. Appeals his conviction of Court sufficient, in was appellant that the evidence was view of the facts that two feet a broken window the scene the lying discovered beneath crime, he in on the gloves had been found previously possession that sill, suspect window and that he had remarked to another about the availability money State, premises. Russell v. agree, 880. find to support
N.E.2d at We and the evidence sufficient this conviction. the granted, opinions Appeals
Transfer and the Court this case are vacated. The of the trial court is affirmed. judgment Prentice, C.J.,
Givan, concur. J. Hunter, with concurs DeBruler, J. in which with opinion J. dissents opinion. separate
Hunter, with opinion. dissents J.
DISSENTING OPINION J.—This conviction should be authority reversed on of Faret- DeBruler, ta v. California, 562. 45 L.Ed.2d In that case the United States Supreme Court held that: “The Sixth Amendment not provide merely does that a defense accused; shall be made for the grants it to the personally accused
the
to
his
make
defense.” 422 U.S. at
S.Ct. at
In so holding the court
knowing
and
required
intelligent waiver of
the right to the assistance of counsel and an advisement of dangers and
disadvantages of self-representation.
generally
It is
accepted that the
may
accused
trial elect to conduct his own defense.
States
United
before
(2d
1965)
Denno,
12;
U.S.,
ex rel. Maldonado Cir.
348 F.2d Minor v.
(8th
1967)
(8th
1963)
170;
U.S.,
Cir.
375 F.2d
Johnson v.
318 F.2d
Cir.
855;
Holcomb,
343;
People
395 Mich.
235 N.W.2d
Barnes
258 Ark.
Maldonado,
Hunter, J., opinion. separate concurs with OPINION
DISSENTING 268 Ind. Implicit opinion our German Hunter, J. — when a re- hearing least a brief is the to at to trial but on date made quest the court or seriously inconvenience I feel that this does arbitrary by judicial up an rule set be better than state’s case and would course, this situation. Of after covering decree sans a written rule discretion would still be at the hearing, granting the trial court. at 383 N.E.2d Reported
Note —