Summary
In State v. McCafferty, 587 S.W.2d 611 (Mo.App. 1979), the court of appeals held that in the absence of any request by defendant to represent himself the trial court did not err in failing to inform him of his right to do so and that the right to self-representation is one which the defendant "must clearly and unequivocally assert before trial."
Summary of this case from State v. FreemanOpinion
No. 39548.
August 21, 1979.
APPEAL FROM THE CITY OF ST. LOUIS CIRCUIT COURT, FLOYD McBRIDE, J.
Robert C. Babione, Public Defender, James M. Smith and Mary Elizabeth Dockery, Asst. Public Defenders, St. Louis, for appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
A jury found defendant guilty of second degree burglary and the court sentenced him to eight years' imprisonment as a prior felon.
On appeal defendant acknowledged the sufficiency of the evidence, which we need not relate. His contention is that the trial court erred in failing, sua sponte, to inform him of his right to represent himself at trial. Neither at trial, nor in his motion for new trial, did defendant raise this point.
Just prior to trial defendant "refused" to go to trial with appointed counsel and requested appointment of new counsel. Following an evidentiary hearing, the court denied defense counsel's motion to withdraw and the case proceeded to trial.
We conclude that in the absence of any request by defendant to represent himself the trial court did not err in failing to inform him of his right to do so.
Defendant relies on the cases of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and Martin v. Wyrick, 568 F.2d 583 (8th Cir. 1978). Neither is in point. Each concerned a defendant who — contrary to our case — before trial specifically requested and was denied the right to represent himself. State v. Burgin, 539 S.W.2d 652, l.c. 653 (Mo.App. 1976) and State v. Haddix, 566 S.W.2d 266[11, 12] (Mo.App. 1978), although not precisely in point, lend support to the state's present contention that a defendant's right of self-representation must be affirmatively asserted in the trial court. In United States v. Bennett, 539 F.2d 45 (10th Cir. 1976) the court held that the right to self representation is one which the defendant "must clearly and unequivocally assert before trial, as the accused did in Faretta, supra." And, in the recent case of Felts v. Oklahoma, 588 P.2d 572 (Okl.Cr. 1978), which is squarely in point, the court ruled: "The implication of these cases ( Faretta and Bennett, supra) is strong that if a defendant wishes to proceed pro se it is incumbent upon him to initiate a request therefore and not a duty for the court to advise him of this right."
We hold the trial court did not err in failing sua sponte to inform the defendant of his right to represent himself at trial.
Judgment affirmed.
REINHARD, P. J., and GUNN and CRIST, JJ., concur.