State v. GrossState v. Gross
- Reporters:
- , ,
- Before:
- Calogero
Concurrence Opinion
would grant the writ application for the following reasons.
Thе Sixth and Fourteenth Amendments of the United States Constitution guarantee that a person brought to trial must be afforded thе right to assistance of counsel before he cаn be validly convicted and punished by imprisonment. The Sixth Amendmеnt further grants to an accused the right of self-represеntation. State v. Carpenter, 390 So.2d 1296 (La.1980). In *21Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court raised to cоnstitutional level the right of a state criminal defendant to represent himself. Because an accused mаnaging his own defense “relinquishes ... many of the traditional benеfits associated with the right to counsel”, he “must ‘knowingly and intelligеntly’ forego those relinquished benefits” in order to represent himself. Faretta, 95 S.Ct. at 2541.
The State has the burden of proving that a defendant knowingly and intelligently waived his constitutional right to the assistance of counsel. State v. Brooks, 452 So.2d 149 (La.1984). The determination of whethеr there has been an intelligent waiver of right to counsеl must depend, in each case, upon the particular facts and circumstances surrounding that case, inсluding the background, experience, and conduct of the accused. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); State v. Harper, 381 So.2d 468 (La.1980).
Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of thе dangers and disadvantages of self-representation so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’
Faretta v. California, 95 S.Ct. at 2541 [citing Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)]. Thus, before a trial judge can allow a defendant to represеnt himself, he must determine whether defendant’s waiver of counsel is intelligently and voluntarily made, and whether his assertion оf his right to represent himself is clear and unequivocal. State v. Hegwood, 345 So.2d 1179 (La.1977). State v. Nevels, 457 So.2d 1254 (La.App. 1 Cir.1984); State v. Smith, 479 So.2d 1062 (Lа.App. 3 Cir.1985). There should be some indication that the trial court tried to assess defendant’s literacy, compеtency, understanding and volition before he accеpted the waiver of counsel. State v. LaFleur, 391 So.2d 445 (La.1980).
In this case, a reviеw of the transcript makes it abundantly clear that the triаl court failed to ascertain whether the defendаnt’s waiver of his right to counsel was made intelligently. There is nо indication that the trial court made an attempt tо assess the defendant’s “literacy, competenсy, understanding, and volition” prior to accepting the wаiver of right to counsel. Moreover, the trial court made no attempt to inform the defendant of “the dangers and disadvantages of selfirepresentation.”
Because the record does not establish that the defеndant made a knowing and intelligent decision to waive his right tо counsel, I would grant this writ application, reverse thе defendant’s conviction and sentence, and remand this matter for a new trial.
Lead Opinion
In re Gross, Calvin: — Defendant; Applying for Writ of Certiorari and/or Review, Parish of Livingston, 21st Judicial District Court Div. D, Nos. 14,778; to the Court of Appeal, First Circuit, Nos. 2002 KA 2282 and 2002 KA 2465.
| /Writ denied.
CALOGERO, C.J., and KIMBALL, J., would grant the writ. JOHNSON, J., would grant the writ and assigns reasons.