State v. Barnes

Justice PLEICONES.

Appellant was convicted of kidnapping and murdering Samuel Sturrup (victim). The jury found two aggravating circumstances, kidnapping¹ and physical torture,² and recommended a death sentence. The judge sentenced appellant to death for the murder, and imposed no sentence for the kidnapping. On appeal, appellant contends the trial court erred in permitting his attorney to call a defense psychiatrist to testify regarding appellant’s right to represent himself and in denying his Faretta³ request, in limiting voir dire and in qualifying Juror # 203, and in refusing to dismiss the indictments because of the State’s failure to comply with the Interstate Agreement on Detainers (IAD) Act.⁴ We find the trial judge applied the incorrect competency standard in denying appellant’s Faretta request and reverse.

FACTS

Appellant was approximately twenty-three years old and living in Augusta, Georgia, where he surrounded himself with high school students. Two of the high school boys, Richard Cave and Antonio (Tony) Griffin testified that on Labor Day 2001, appellant called them to meet him at his “green house” in Augusta. The boys were high school seniors, who enjoyed hanging out with appellant because, as Cave testified, appellant had money, girls, and cars. When Cave and Griffin arrived, they found victim already there, along with Charlene “China” Thatcher and appellant’s younger half-brother William Harris.

Appellant accused victim of stealing appellant’s money, and was beating the victim with his fists, a pole, and a shock absorber. China was also accused and hit, and Griffin obeyed appellant’s order to beat victim. As the night progressed, Harris left and appellant called two South Carolina brothers, the Hunsbergers, to come to the green house in Augusta. After the Hunsbergers arrived, everyone left for South Carolina. Appellant, China, Griffin, and Cave followed the Hunsbergers in appellant’s car, with the victim in their car trunk, to a remote area of Edgefield County. There, appellant ordered China, Griffin, and Cave to shoot the victim, with appellant administering the coup de grace. Appellant told the others they were as guilty as he, and all kept quiet until parts of victim’s skeleton and other identifying information were found in November 2001.

China, Griffin, and Cave, all of whom testified in the guilt phase, were serving eighteen-year sentences in Georgia for their assault of victim and faced the potential for additional charges in Georgia and South Carolina.

ISSUE

Did the trial judge commit reversible error in denying appellant’s request to waive counsel and proceed pro se?

ANALYSIS

Appellant, whose competency to stand trial has never been in question, moved to be allowed to proceed pro se on the Friday before the trial was to commence on Monday, citing Faretta. Appellant was unequivocal that he was not seeking a delay or a continuance. He asked for all relevant documents to be provided for his review, and asked if he could possibly subpoena the Hunsbergers who were incarcerated in Georgia. After being placed under oath, appellant told the court he was thirty-two years old, had an 11th grade education, had been self-employed, and that he understood the charges against him and the possible sentences. He acknowledged having had an attorney in his other criminal cases, including one before this same judge.⁵ Appellant acknowledged he understood he would be held to the same standards as an attorney regarding the rules of court and of evidence.

The trial judge questioned appellant under oath about a specific rule of evidence, his understanding of the prohibition of hybrid representation, his current mental health status,⁶ and his familiarity -with courtroom procedure and prior experience as a criminal defendant. Appellant demonstrated an understanding of the process of capital voir dire, stated his intention to pursue a third-party guilt defense at trial and discussed the relevant case law, the burden of proof, and his right to testify. Appellant also appeared to be familiar with the niceties of error preservation, for example, the need to place objections and the court’s rulings on the record.

The judge then inquired into appellant’s reasons for wanting to proceed pro se. Appellant answered that his request to proceed pro se was driven by trust issues, and that he had another attorney or two in mind to use as standby counsel in lieu of his appointed attorneys. As an example of the disagreement between appellant and his attorneys leading to his loss of trust in them was their decision not to subpoena the Hunsberger brothers because of counsels’ belief that the brothers would invoke their Fifth Amendment right not to testify. Appellant explained that if the brothers did decline to testify, then he would use transcripts of their sworn testimony in the Georgia proceedings under Rule 804(3), SCRE. Appellant also explained his intent to refer to himself in the third person when examining witnesses. Finally, appellant explained that he lost trust in his appointed attorneys because while he had instructed them not to move for a continuance in order to preserve his IAD Act request, he had learned that they had made such requests.

The judge concluded by telling appellant, “I think you’re making a mistake, but you have the right to make a mistake. I think you’re making an unwise choice, but you have the right to make an unwise choice. I would advise you not to do this.... ” The judge asked appellant to reconsider the decision and discuss it again with his appointed attorneys. Appellant agreed to do so. After a break, the judge told the attorneys to provide the discovery materials to appellant for his review over the weekend, and announced he was taking the Faretta motion under advisement until Monday.

On Monday, the judge qualified the venire and set up voir dire panels before taking up the Faretta request.

At the commencement of the hearing, one of appellant’s attorneys (Tarr) referred the court to Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008), which holds that a state may hold a defendant who seeks to represent himself at trial to a higher competency standard than that required to stand trial. Tarr stated that “a couple of different experts that we’ve hired to evaluate [appellant] for purposes of the sentence phase are of the opinion that he is very competent to stand trial, but he lacks the competency to waive his right to counsel and conduct the proceedings on his own.” Tarr had Dr. Price, a psychologist previously retained by the defense as a mitigation witness, present and ready to testify regarding appellant’s competency.

Appellant immediately objected to Dr. Price’s testimony. First, he based his objection on the “doctor/client” relationship and the attendant privilege. He explained that he talked to Dr. Price only for penalty phase mitigation purposes, and stated, “If I’d have known that he was going to be adverse to me, I wouldn’t have talked to him.” Appellant then distinguished Edwards, pointing out that the defendant in that case was before the trial judge on his second or third competency to stand trial hearing when the waiver of counsel issue arose. Appellant continued:

In this case here, you know, this was never an issue. I brung forth to you — I explained to you in detail when you asked me questions the last time we spoke and I brought forth everything, you know, just like you asked me to do. And the Edwards case is totally different from the factual situation of my case.

And I object to Dr. Price getting on the stand, because, like I say, I’m not giving him no permission to say anything in regards to me, talking about me, because like I say, my attorneys, that’s part of my defense, you know, when we get to the penalty phase. Once we get to that phase, then, you know, I consent for him to furnish that information to the jury for migation [sic].

The judge then asked if appellant was asking him to make a decision without adequate information. Appellant answered with a qualified yes, saying that he was entitled to due process and specifically denying his permission for Dr. Price to testify about “things that had been in [appellant’s] mental records for years.” He again emphasized the doctor/client relationship, and that Dr. Price represented him. Tarr stated that neither he nor Mr. Harte (the lead attorney) nor Dr. Price were “trying to be adversarial” but were instead trying to make the court aware of all the issues. Appellant again objected to any expert testimony from Dr. Price except in the penalty phase and suggested, “if you appoint a state official to conduct that [competency to waive counsel] review, then that’s a different story.” The judge responded that he did not know of any procedure that would allow him to do so.⁷ Attorney Harte responded that since Edwards failed to state the standard for competency to waive, it did not seem possible to order an evaluation. Appellant reiterated that the question was Faretta because his was not an Edwards situation as there is no indication that he, unlike the defendant Edwards, is “sick.”

Following Dr. Price’s testimony, the trial judge denied appellant’s request to proceed pro se based upon a finding that appellant did not meet the heightened Edwards standard for competency to represent himself at trial. The judge then noted that despite appellant’s responses to the Faretta inquiry on Friday, the judge was concerned by Dr. Price’s testimony regarding appellant’s competency. Ultimately he ruled:

Given the doctor’s testimony and his expert opinion that the defendant has not knowingly and intelligently waived his right to counsel,⁸1 find the defendant does not have a clear understanding of the dangers of self-representation in the guilt nor the sentencing phase of the trial.

I further find that the defendant does not knowingly, intelligently understand the dangers inherent in self-representation. I feel like I would not be fulfilling my responsibilities under the law to an individual that deserves a fair trial if I allow on this record, and I might add, my observations of Mr. Barnes.

Mr. Barnes has always been during these proceedings respectful to this Court and I’ve noted him to appear to be respectful, although not necessarily pleased at times, with his attorneys. However, he is prone to ramble. He’s prone to act extra-judicious, and by that I mean not appropriate, but to act as if he were conducting his defense on the streets, so to speak, and as we all know, the courtroom is not the place for that kind of decorum or demeanor. I think it would be abuse of my discretion to allow him to represent himself in trying to do all I can do to make sure Mr. Barnes in this very serious matter gets a fair trial. So I’m denying your motion.

And I might add, I have not seen anything but his attorneys acting in his best interest throughout the proceedings, both during the requests or expertise, motion hearings, status conferences and otherwise.

Further, I would find that it appears Dr. Price also to be acting not in Dr. Price’s best interest but in Mr. Barnes’ best interest.

With that being said, I will deny Mr. Barnes’ motion under Faretta versus California and deny his right to self-representation and reaffirm the Court’s appointment of Mr. Tarr and Mr. Harte.

The dispositive issue in this appeal is whether South Carolina will adopt the higher competency standard permitted by Edwards and thus alter the traditional Faretta threshold inquiry which permits any defendant competent to stand trial to waive his right to counsel. Since we choose not to adopt Edwards’ higher standard for competency to represent oneself at trial, and since the trial judge’s denial of appellant’s request was predicated on this competency standard, we are compelled to reverse. McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (erroneous denial of Faretta request is a structural error requiring automatic reversal).

A South Carolina criminal defendant has the constitutional right to represent himself under both the federal and state constitutions.⁹ State v. Starnes, 388 S.C. 590, 698 S.E.2d 604 (2010). A capital defendant, like any other criminal defendant, may waive his right to counsel. State v. Starnes, supra; State v. Brewer, 328 S.C. 117, 492 S.E.2d 97 (1997). So long as the defendant makes his request prior to trial, the only proper inquiry is that mandated by Faretta. State v. Winkler, 388 S.C. 574, 698 S.E.2d 596 (2010).

Recognizing that it may be to the defendant’s detriment to be allowed to proceed pro se, his knowing, intelligent and voluntary decision “must be honored out of that respect for the individual which is the lifeblood of the law.” Faretta, 422 U.S. at 834, 95 S.Ct. 2525. Under Faretta, the trial judge has the responsibility to make sure that the defendant is informed of the dangers and disadvantages of self-representation, and that he makes a knowing and intelligent waiver of his right to counsel. State v. Reed, 332 S.C. 35, 41, 503 S.E.2d 747, 750 (1998).

In Edwards, the United States Supreme Court held that “the Constitution permits states to insist upon representation by counsel for those competent enough to stand trial under Dusky¹⁰ but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Edwards, 554 U.S. at 178, 128 S.Ct. 2379. Since the Court merely agreed that states could set a higher standard for self-representation at trial without offending the federal constitution, it declined to adopt a federal constitutional competency standard. Id.

We decline to impose a higher competency standard upon an individual who wishes to waive his right to an attorney and represent himself at trial than that required for the waiver of other fundamental constitutional rights afforded a criminal defendant, such as the right against compulsory self-incrimination; the right to trial by jury; and the right to confront one’s accusers. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A defendant who is competent to stand trial is also competent to waive these fundamental rights and plead guilty. Sims v. State, 313 S.C. 420, 438 S.E.2d 253 (1993). We do not find public policy supports a distinction between a defendant who wishes to plead guilty and the defendant who wishes to proceed to trial as the Sixth Amendment guarantees every criminal defendant the “right to proceed without counsel when he voluntarily and intelligently elects to do so.” Faretta, 422 U.S. at 807, 95 S.Ct. 2525.¹¹

The judge erred in applying the Edwards competency standard to appellant’s request to waive his right of counsel and proceed pro se. Accordingly, we are constrained to reverse. McKaskle, supra.

CONCLUSION

Since the Faretta error mandates reversal, we need not reach any of appellant’s other issues save that alleging he was entitled to dismissal of all charges under the IAD Act. On the face of this record, it appears appellant waived his speedy trial rights under this Act, and we therefore decline to reverse on this ground. See New York v. Hill, 528 U.S. 110, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000).

Appellant’s convictions and sentence are

REVERSED.

BEATTY and HEARN, JJ., concur. TOAL, C.J., dissenting in a separate opinion in which KITTREDGE, J., concurs.

1 . S.C.Code Ann. § 16-3-20(B)(b) (Supp.2011).

2 . S.C.Code Ann. § 16-3-20(B)(i) (Supp.2011).

3 . Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

4 . S.C.Code Ann. §§ 17-11-10 et seq. (2003).

5 . This is a reference to appellant’s conviction for throwing urine on an Edgefield jailer. This Court granted certiorari to review the Court of Appeals' affirmance of appellant’s conviction and reversed. State v. Barnes, 402 S.C. 135, 739 S.E.2d 629 (2013).

6 . Appellant acknowledged having been treated for post-traumatic stress disorder after being tased by jailors. He testified that while that incident had led to counseling, and that he had suffered "mental health while [he] was younger,” he was currently well.

7 . A trial judge has the inherent authority to order an independent examination of a criminal defendant where necessary. Cf. State v. Cooper, 342 S.C. 389, 536 S.E.2d 870 (2000) (trial judge has inherent authority to require expert examination of defendant and order state to pay in order to maintain integrity of judicial process).

8 . Note this is not the proper inquiry under Edwards, which does not involve the merits of the Faretta waiver but rather the defendant’s competency to represent himself at trial.

9 . U.S. Const. am. 6; S.C. Const. art. I, § 14.

10 . Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

11 . The dissent does not adopt the Edwards standard, which is predicated on the defendant's severe mental illness, but instead crafts a new test for capital cases only where the trial judge is to assess the defendant’s "mental and psychiatric history, demeanor, and the importance of the impending trial” and weigh those findings against the defendant’s request that he be allowed to waive his right to counsel. The dissent would allow the trial judge to deny a capital defendant's request to proceed pro se if the trial judge believes that allowing self-representation would make the proceeding less fair or the verdict not “especially reliable.” The dissent’s formulation of the analytical framework for deciding whether to allow a capital defendant to waive his right to counsel is not constitutionally sound, and reflects the rationale we rejected in State v. Brewer, 328 S.C. 117, 492 S.E.2d 97 (1997).