State v. FrizzellState v. Frizzell
The defendant Frizzell shot and killed Frank Garess. He was indicted for murder.
On his appeal he relies upon three perfected bills of exceptions:
Bill of Exceptions No. 1
The first bill was taken to the trial court‘s denial of the motion of appointed counsel to withdraw. Their motion was based upon their client‘s written request that they do so. The request was made about five months after thе trial date had been set and one month before the trial date.
At the hearing on the motion, the defendant was given the opportunity to obtain other counsel. He stated he did not wish appointed counsel tо represent him because he was not satisfied they were experienced enough in capital cases.1 The defendant stated that he did not intend to hire or obtain other counsel but, instead, would represent himself at his trial for murder.
The trial judge denied the motion, finding no valid reason for the accused‘s dissatisfaction with his appointed counsel. Furthermore, he felt he was under a mandatory duty to appoint counsel in this capital case,
The matter is not entirely free from doubt. Our state constitution provides that an accused “shall have the right to defend himself, to have the assistance of counsel, and to have compulsory process for obtaining witnesses in his favor.” (Italics ours.)
Here, the defendant was a 60-year old laboring mаn, untrained in the law and without substantial formal education. It is self-evident, if only from the numerous examples of experienced counsel tripped up by the technicalities of criminal trial and appellate procedure, that the accused‘s self-representation on a trial for the serious charge of murder could not adequately
As noted four decades ago in Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932), “Even the intelligent and educated layman has small and sometimes no skill in the science of law.... He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be . . . convictеd upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible... He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faсes the danger of conviction because he does not know how to establish his innocence.” See also Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed. 2d 799 (1963).
The California Supreme Court recently examined the effect of a then-provisiоn in its state constitution granting an accused the right “to have the assistance of counsel for his defense . . . and to appear and defend in person.” People v. Sharp, 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489 (1972). After full examination of historical antecedents and the historical reasons for such constitutional and statutory provisions, the court concluded that the “right to defend” did not include the right to appear pro se, although due process considerations may require that a defendant be accorded the right of self-representation in appropriate circumstances.2
There is substantial decisional authority in other jurisdictions contrary to this construction of “right to defend himself” provisions, some of which Sharp reexamines, clarifies, or (in the case of prior California cases) overrules or modifies. See Annotation, Right of Defendant in Criminal Cases to Conduct Defense in Person. 77 A.L.R.2d 1233 (1961). Nevertheless, we are convinced by the reasoning of the California Supreme Court, and the sources relied upon by it,3 that the functional
The right of an аccused to “defend himself” may, in appropriate circumstances, include pro se representation, where other constitutional rights are not substantially diminished, such as the due process guarantee,
Having reached this conclusion, we do not find under the circumstances here presented that the trial court abused its discretion by denying the defendant the right to represent himself in this capital case. See Official Revision Comment (c),
Having so found, it is unnecessary to discuss whether the belated attempt to change counsel likewise justified the denial as an attempt to delay the trial, State v. Boudoin, 257 La. 583, 243 So.2d 265 (1971); nor whether the present accusеd‘s initial request for appointed counsel and acceptance of their substantial services during the preparations for trial constituted a waiver precluding his later assertion of any right to self-reprеsentation, in the absence of inadequacy or prejudice, United States v. Conder, 423 F.2d 904 (C.A.6, 1970); nor whether, in the lack of any showing or even assertion of inadequate representation by appointed counsel, the accused mаy claim reversible error or prejudice through not being accorded the right to proceed pro se, State v. White, 256 La. 36, 235 So.2d 84 (1970).
Bill of Exceptions No. 2
Likewise, we find no merit to the defendant‘s second bill. This bill was based upon the State‘s calling as its witness (by subpoеna instanter during the trial) a lady who had been located and subpoenaed by the defendant. The complaint is that this tactic by the State was intended to undermine the defense case, to “steal the thunder of the dеfense.”
No authority is cited for the proposition that one party cannot call as its witness a person previously subpoenaed by the other. We find no legal or reasonable justification in support оf it. Of course, when the opposing party calls as its own a witness previously subpoenaed by the other, the party who calls the witness is subject to the same limitations of examination and impeachment, cf.
Bill of Exceptions No. 3
The final bill presents an issue as to whether the trial court erred in sustaining a State objection to testimony of a witness as to what he had heard bystanders surrounding the victim‘s body say when he first arrived. Admission was sought of this testimony as falling within the res gеstae (excited utterance) exception to the hearsay rule. See:
The witness had previously testified as to these declarations at a preliminary examination. The trial court, the State, and the defense were fully award of the content and reliability of thе allegedly res gestae statements sought to be introduced. At this preliminary examination, the witness had eventually identified the source of the statements as a Mrs. Dinger, Tr. 77; this lady had testified at the trial, Tr. 790ff., and was positively shown to hаve been in another room and unable to have personal knowledge or observation of the declaration she had (allegedly) made to the witness.
Under these circumstances, the trial court did not abusе its discretion in requiring further foundation before admitting the witness‘s testimony as to the (alleged) spontaneous declaration made by the bystander, since upon such showing the speculative and inadmissible nature of the (allеged) declaration, not founded upon any actual observation or knowledge, would have been disclosed.
There is no merit to this bill.
Decree
For the foregoing reasons, the conviction and sentence are affirmed.
Affirmed.
DIXON, J., concurs.
Notes
For instance, in Adams v. United States, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942), an accused had waived counsel and conducted his own trial, waiving jury. The issues concerned whether an accused could intelligently without counsel waive his right to jury in a felony case. The court held that a person could intelligently waive his right to the assistance of counsel and could, without counsel, intelligently waive his right to jury trial. It is in this context that the oft-quoted statement is made: “But the Constitution does nоt force a lawyer upon a defendant.” 317 U.S. 279, 63 S.Ct. 242. See similar issue and statement in Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172 (1946). However, as the California court points out (along with others), the holdings that due process is not necessarily offended if an accused intelligently waives сounsel and conducts his own defense in a judge-trial (Adams), or if he pleads guilty without the assistance of counsel after an intelligent waiver of counsel (Carter), are not authority for any converse proposition that an аccused has a constitutional right to conduct his own defense without counsel.