Opinion
No. 76-151
Decided July 7, 1977. Rehearing denied July 28, 1977. Certiorari granted September 19, 1977.
Convicted by a jury of second degree murder of his wife, defendant appealed.
Affirmed
1. CRIMINAL LAW — Defendant — Constitutional Right — Defendant — Proceed Without Counsel — Voluntary and Intelligent Election — Requirement — Informed — Dangers and Disadvantages. A defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so; however, 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 the dangers and disadvantages of self-representation, so the record will establish that "he knows what he is doing and his choice is made with eyes open."
2. Defendant — Chose — Represent Himself — Numerous Court Advisements — — Operative — Warning — Dangers and Disadvantages — Applicable Test — Complied With. Where, after defendant in murder trial notified the court that he wanted to represent himself, the court suggested that he have appointed counsel assist at trial, but that offer was declined; where thereafter the court gave defendant a full outline of all of the procedures defendant would be expected to follow, including the impanelling of the jury, the opening and closing statement, and the examination and cross-examination of witnesses; where the court informed the defendant on how to present his case, including testifying on his own behalf, and requesting jury instructions; and where, at a subsequent hearing prior to trial, the court asked defendant if he still persisted in representing himself and after the defendant did so persist, the court proceeded to advise defendant of his discovery rights; held, this detailed and extended discussion given by the trial court of the multi-faceted and burdensome obligations facing an attorney in a murder trial operated as a forceful warning to defendant of the dangers and disadvantages lying in his path if he appeared pro se; hence, the test for allowing a defendant to represent himself was met.
3. Repeated Advisements — Right to an Attorney — Defendant — Repeatedly Declines Representation — Constitutional Safeguards — Satisfied. Where a trial court repeatedly advises a criminal defendant of his right to an attorney, and the defendant repeatedly and specifically declines to exercise that right, the constitutional safeguards relative to that constitutional privilege have been satisfied.
4. Some Evidence — Defendant's Malice — Towards Murder Victim — Questionable Relevance — Cumulative — Admission — Harmless Error. Although, in murder prosecution, certain of the evidence offered by the prosecution to show malice on the part of the defendant directed at his wife, the deceased, was of questionable relevance, nevertheless, the challenged testimony was clearly cumulative to other evidence of malice which was properly before the jury, and thus its admission was at most harmless error.
5. Evidence — Previously Suppressed — Temporary Admission — Error — Not Contribute — Conviction — Harmless. Although, in murder prosecution, the admission, albeit temporary, of a certain key case that had previously been suppressed was error, nevertheless that error did not contribute to defendant's conviction and thus, beyond a reasonable doubt, it was harmless.
6. Speedy Trial — Denial of Constitutional Right — Relevant Factors — Listed — Claim of Defendant — Rejected. In evaluating a defendant's claim that he has been deprived of his constitutional right to a speedy trial, there are four relevant factors: Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant; thus where, after earlier appeal relative to murder prosecution, trial of the defendant on murder charge was held within six months after the issuance of the Supreme Court mandate which returned jurisdiction to the trial court, where the various continuances in the case primarily were related to the issues surrounding defendant's self-representation, and where the defendant did not object to the trial setting either before or during the trial, there was no violation of defendant's constitutional right to a speedy trial.
7. Speedy Trial — Violation of Criminal Rule — Not Asserted — Before Trial — Not Considered — On Appeal. Since there was no objection or motion made before trial, no consideration will be given to the merits of defendant's arguments that his right to a speedy trial as defined by the criminal rules of procedure were violated.
Appeal from the District Court of Pueblo County, Honorable Jack F. Seavy, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Robert C. Lehnert, Assistant Attorney General, for plaintiff-appellee.
Miller Gray, P.C., William R. Gray, for defendant-appellant.
Defendant was convicted by a jury of second degree murder, and appeals. We affirm.
In June 1972, defendant was indicted and charged with second degree murder of his wife, Joeise. A not guilty plea was entered and various preliminary hearings, including a suppression hearing, were held. Thereafter the indictment was dismissed on the People's motion and an information was filed charging defendant with first degree murder, on which defendant was bound over after a preliminary hearing. Subsequently defendant moved for dismissal for denial of a speedy trial. The motion was granted, but, on appeal, the dismissal was reversed by the Supreme Court, and the cause remanded with directions to proceed to trial with all due speed. People v. Reliford, 186 Colo. 6, 525 P.2d 467 (1974). During all of these proceedings defendant was represented either by the public defender or private counsel.
Following the remand it was determined that defendant did not qualify, under the indigency guidelines, for representation by the public defender because he was earning at least $1500 a month. At defendant's request, time was granted for him to hire an attorney. After two appearances at which defendant stated that he had not hired counsel, the court assigned the public defender to serve in an advisory role and set trial to begin December 3. On November 4 the public defender asked for an evidentiary hearing to determine the role he was to have at trial. On November 29 the public defender was appointed to represent the defendant, who was ordered to pay $50 per week into court for his representation; trial was reset to begin February 18, 1975. On December 4, 1974, the defendant filed a motion which requested that the public defender withdraw from his case and stated that he wished to proceed pro se. Two hearings were held in February regarding defendant's self-representation and procedures for trial. Defendant persisted in his desire to appear pro se and did so at trial which occurred February 18-21, 1975. The jury found the defendant guilty of second degree murder, for which he was later given a prison sentence of 10-15 years. Defendant retained private counsel after trial and perfected this appeal.
I. Self-Representation
Defendant raises the issue of whether his decision to waive counsel and proceed pro se was knowingly and intelligently made, arguing that the trial court did not adequately warn him of the dangers of self-representation nor did it inquire into his ability and reasons for proceeding pro se.
As stated in Martinez v. People, 172 Colo. 82, 470 P.2d 26 (1970):
"We are here confronted with two constitutional rights. One is that an indigent defendant in a criminal case has a federal constitutional right to have counsel represent him at his trial. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the United States Supreme Court expressly held that the Sixth Amendment was made obligatory on the states by way of the Fourteenth Amendment. But there is also a constitutional right of a defendant to defend himself. Article II, section 16 of the constitution of Colorado provides that the accused 'shall have the right to appear and defend in person and by counsel.' While the United States Constitution does not specifically provide that an accused may proceed pro se, the federal courts have recognized such a right. The United States Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, has held that a defendant will be permitted to proceed without counsel only if he has an intelligent understanding of the consequences of so doing."
[1] In a recent U.S. Supreme Court case, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which held that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so, the court discussed the standard for accepting a defendant's choice of self-representation:
"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 the 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.' "
Here, after the defendant notified the court that he wanted to represent himself, the court suggested that the have appointed counsel assist at trial. This offer was declined. Thereafter the court gave defendant a full outline of all the procedures defendant would be expected to follow, including the impanelling of the jury, the opening and closing statement, and the examination and cross-examination of witnesses; further, the court informed defendant on how to make objections and how to present his case, including testifying on his own behalf, and requesting jury instructions.
Again, at a subsequent hearing prior to trial the court asked defendant if he still persisted in representing himself. The defendant did so persist, the court then advised defendant of his discovery rights.
[2] This detailed and extended discussion given by the trial court of the multi-faceted and burdensome obligations facing an attorney in a murder trial operated as a forceful warning to defendant of the "dangers and disadvantages" lying in his path if he appeared pro se. Hence, the test established by Faretta was met.
[3] Furthermore, the trial court, on each relevant occasion prior to trial, verified that defendant wished to continue in his decision to represent himself. And, as stated in U.S. v. Ramsdell, 458 F.2d 161 (10th Cir. 1972):
"When a trial court repeatedly advises a defendant of his right to an attorney, — — — and the defendant repeatedly and specifically declines to exercise this right, the constitutional safeguards have been satisfied. Lowe v. United States, 418 F.2d 100 (7th Cr. 1969), cert. denied, 397 U.S. 1048, 90 S.Ct. 1378, 25 L.Ed.2d 660 (1970)."
The wisdom of defendant's election to proceed pro se in a first degree murder trial was not the question before the trial court; it was proper to accept defendant's choice of self-representation, where, as here, defendant intelligently and understandingly waived his right to counsel.
Defendant lists seven areas which he now contends were too complex for his lay talent. In none of those areas do we find any prejudicial error or oversight at trial. In each of the areas, either no issue arose or the issue was properly and adequately handled by the defendant or the court. Nor was Reliford's performance at trial so incompetent that the court had a duty to intervene and appoint counsel. Cf. Martinez v. People, supra. II. Prior Injuries
Defendant contends it was error to admit evidence of prior injuries to decedent without linking the injuries to the defendant. The prosecution properly attempted to demonstrate ill-feeling, personal violence, and threats between the Relifords to show malice or motive of defendant toward his wife. Romero v. People, 170 Colo. 234, 460 P.2d 784 (1969). The court allowed this line of testimony but gave a limiting instruction to the jury as required by Stull v. People, 140 Colo. 278, 344 P.2d 455 (1959).
There was testimony from various sources which established that because of marital difficulties, the deceased and the defendant separated in May 1972, and that they had argued about the custody of their minor daughter on the night of the murder. Joeise's mother testified that Prentice had threatened Joeise. Also a police officer testified that four days before the murder, when he served defendant with a restraining order to stay away from Joeise and their house, the defendant threatened Joeise's life. Further, two friends of the deceased testified to an incident which occurred at a bar a month before the murder. Although the women heard nothing said between the deceased and the defendant, while inside the bar, they did see the defendant in a state of anger strike the deceased and later, outside the bar, saw him attempt to drag her out of a car when she tried to leave.
[4] Relative to this line of testimony the prosecution called two doctors, a hospital administrator, and the mother of the deceased to testify to injuries sustained by the deceased. Defendant is correct that, except for the thumb injury suffered in the bar incident, the link between the injuries and the defendant was tenuous. However, since the challenged testimony was clearly cumulative to the other evidence of malice which was properly before the jury, its admission was at most harmless error. See Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972); Crim. P. 52(a).
III. Use of Suppressed Evidence
Defendant further contends that reversible error occurred when the trial court temporarily admitted some keys which had previously been suppressed prior to the dismissal of the indictment. We do not agree.
The prosecution tendered, and the court admitted, a key case at trial which previously had been suppressed by the court in January 1973, under the original grand jury indictment. The keys were identified as having been found in Joeise's purse in a bedroom of the Reliford's house. Later, with the jury out of the courtroom, the judge informed the district attorney that the keys had been suppressed. The district attorney was unfamiliar with the earlier suppression hearing, but argued that nonetheless this was a different action. The court ordered that the suppressed items not be mentioned again.
[5] The admission, albeit temporary, of the key case was error, since those items suppressed cannot be used at trial. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Hernandez v. People, 153 Colo. 316, 385 P.2d 996 (1963); Crim. P. 41(e). However, the error did not contribute to defendant's conviction and thus, beyond a reasonable doubt, was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Early v. People, 178 Colo. 167, 496 P.2d 1021 (1972); Crim. P. 52(a).
IV. Speedy Trial
Defendant also asserts he was denied his right to a speedy trial. This contention is without merit.
The defendant has raised his constitutional right to speedy trial as a separate issue. Potter v. District Court, 186 Colo. 1, 525 P.2d 429 (1974); People v. Slenderwrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975). However, our review of the events and continuances leading up to the trial convinces us that defendant's constitutional right was not violated.
[6] Four factors relevant to an evaluation of defendant's claim that he has been deprived of his constitutional right are set out in Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182:
"Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant."
Here, the trial was held within six months after the issuance of the Supreme Court mandate which returned jurisdiction to the trial court. Norris v. Kelsey, 60 Colo. 297, 152 P. 1167 (1915). See C.A.R. 41. The continuances primarily were related to the issues surrounding defendant's representation, and the defendant did not object to the trial setting, either before or during trial. Under these circumstances, we find no violation of defendant's constitutional right to a speedy trial. See Barker v. Wingo, supra.
[7] And, since there was no objection or motion made before the trial, we do not reach the merits of defendant's argument that his rights are defined by Crim. P. 48(b) were violated. People v. O'Donnell, 184 Colo. 104, 518 P.2d 945 (1974); Crim. P. 54(b); § 18-1-405(5), C.R.S. 1973. See Harrington v. District Court, 192 Colo. 351, 559 P.2d 225 (1977).
Defendant's asserted errors in the jury instructions are without merit. The instructions taken as a whole adequately inform the jury of the law. Therefore there is no reversible error. People v. Manier, 184 Colo. 44, 518 P.2d 811.
Judgment affirmed.
JUDGE VAN CISE concurs.
JUDGE PIERCE dissents.