dire and gave his opening statement. After opening statements, Williams
requested that his standby counsel be appointed as lead counsel. The
district court denied Williams's request because standby counsel requested
that the court grant a one-day recess and the district court did not want to
delay the proceedings. Williams conducted the remainder of the trial and
was subsequently convicted of both counts. This appeal followed, in which
Williams asks this court to review whether the district court erred in
failing to conduct a proper Faretta canvass before allowing Williams to
represent himself.
The Faretta canvass was insufficient
Williams contends that he was denied his constitutional right
to counsel because the district court's Faretta canvass was inadequate.
Specifically, Williams states that he was unaware of the potential
sentence and did not know that he would lack a potential claim of
ineffective assistance of counsel in future habeas corpus proceedings.
Further, Williams contends that the district court acknowledged that he
was incompetent to represent himself but still allowed him to do so. In
contrast, the State contends that the canvass was sufficient, based on the
questions asked by the district court and by reference to the record as a
whole.
"We give deference to the district court's decision to allow the
defendant to waive his right to counsel." Hooks v. State, 124 Nev. 48, 55,
176 P.3d 1081, 1085 (2008). However, "harmless-error analysis does not
apply to an invalid waiver of the right to counsel," and if we determine
that the canvass was insufficient, "we must reverse [the defendant's]
judgment of conviction and remand for a new trial." Id. at 57-58, 176 P.3d
at 1086-87.
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In Faretta v. California, the United States Supreme Court
mandated that a defendant opting to represent himself or herself must
"knowingly and intelligently forgo those relinquished benefits." 422 U.S.
806, 835 (1975) (internal quotations omitted) (referring to the "traditional
benefits associated with the right to counsel"). But it is not necessary that
the defendant have the skill or experience of an attorney; he or she must
simply "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." Id. (quoting Adams v.
United States ex rel. McCann, 317 U.S. 269, 279 (1942)).
Hooks relies on Faretta as a basis for its analysis. 124 Nev. at
53-54, 176 P.3d at 1084. In Hooks, the district court stated that a
defendant's waiver must be knowing, intelligent, and voluntary. Id. at 54,
176 P.3d at 1084. The district court went on to state that a defendant's
waiver must be reviewed under each case's particular facts and
circumstances, "including the defendant's background, experience, and
conduct." Id. In order to ensure that the defendant's waiver was
appropriate, the court reaffirmed its prior decision in Wayne v. State, 100
Nev. 582, 691 P.2d 414 (1984), which 'urged [trial courts] to canvass
defendants." Hooks, 124 Nev. at 54, 176 P.3d at 1084 (alteration in
original) (quoting Wayne, 100 Nev. at 585, 691 P.2d at 416). It also urged
district courts to make specific "findings as to whether the defendant's
waiver of the right to counsel is knowing, intelligent, and voluntary." Id.
at 55-56, 176 P.3d at 1085.
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Hooks also relies on SCR 253, which provides additional
guidance to district courts when conducting a Faretta canvass. Id. at 54,
176 P.3d at 1084-85. SCR 253(1) is clear in its requirements that
the [district] court should make a specific,
penetrating and comprehensive inquiry of the
defendant to determine whether the defendant
understands the consequences of his or her
decision to proceed without counsel. The district
court's observation of the defendant should reveal
that the defendant appears to understand the
nature of the proceedings, and is voluntarily
exercising his or her informed free will. The
district court's inquiry should reveal whether the
defendant should consult with appointed counsel
to discuss the consequences of self representation
before deciding to proceed in proper person.
In fact, SCR 253(4) requires that a district court make specific
findings on the record as to whether: "(a) The defendant is competent to
waive his or her constitutional right to be represented by an attorney; and
(b) The defendant is waiving the right to counsel freely, voluntarily and
knowingly, and has a full appreciation and understanding of the waiver
and its consequences." To guide the district courts, SCR 253 includes
certain "dangers, disadvantages and consequences of self representation,"
of which the district courts should inform the defendant, SCR 253(2), and
a list of areas that district courts are advised to cover when canvassing the
defendant. SCR 253(3).
Finally, Hooks provides that a "mechanical performance of a
Faretta canvass," or a canvass "addressing specific matters 'that go
beyond the general requirements of Faretta," is not required as long as it
is clear from the record that the defendant was aware of the risks of
representing himself. 124 Nev. at 55, 176 P.3d at 1085 (quoting Graves v.
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State, 112 Nev. 118, 125, 912 P.2d 234, 238 (1996)). The inquiry, however,
is "not whether he was able to competently and intelligently represent
himself." Graves, 112 Nev. at 124, 912 P.2d at 238 (internal quotations
omitted). Further, even a complete lack of a Faretta canvass does not
mandate reversal if it is clear from the record that the defendant was
aware of his rights and still wished to represent himself. Hooks, 124 Nev.
at 55, 176 P.3d at 1085 (citing Graves, 112 Nev. at 125, 912 P.2d at 238).
In this case, the district court's first question to Williams was
if he knew the range of punishment for the two crimes charged. Williams
gave the incorrect answer. The district court, rather than correcting him,
went on to ask Williams if he knew how to subpoena witnesses. The
conversation then devolved into an argument between the district court
and Williams regarding the public defender's office and the quality of
representation. Williams believed that he had no choice but to represent
himself because the public defender's office would not let him put on
certain witnesses and he felt that he was excluded from an unrelated trial.
During the less-than-ten-minute colloquy, the district court asked
Williams how many felony convictions he had, whether he knew what
witnesses would be relevant, how many years of school he had completed,
and whether he knew his duty if the district court sustained an objection.
The district court also warned Williams that he was facing a much longer
sentence than two to five years, that Williams would not be able to
withdraw his Faretta waiver, and that it was a bad decision for Williams
to choose to represent himself. Williams stated that he understood but felt
that he had no choice but to represent himself.
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OSSZYM
The most telling exchange between Williams and the district
court came at the end of the hearing:
[District court]: . . . [Y]ou don't know what
the sentence is, you don't know how to subpoena
witnesses, you don't know how to give notice.
Your motions may not be relevant and yet you
want to represent yourself. You didn't even
realize you're looking at the habitual criminal
statute. I asked you and you didn't have — you
don't have any clue, but you can deal with it
because you're the tough guy.
[Williams]: No, I'm just innocent.
[District court]: Big mistake on your part,
big mistake. You're going to represent yourself,
figure out how to file your motions.
The canvass was anything but "specific, penetrating [or]
comprehensive." SCR 253(1). Perhaps Williams knew and understood
that he had a right to appointed counsel, but he did not appreciate the
nature and severity of the crimes charged and the nature of the upcoming
proceedings. In reviewing the topics and questions that the district court
should ask a defendant, the district court did not: (1) clearly state that
Williams would be required to comply with all the same rules that lawyers
are required to comply with, (2) warn Williams that he would not have a
claim of ineffective assistance of counsel on appeal, (3) inform Williams
that he would not be given special library privileges, (4) warn Williams
that the prosecution would likely have an advantage because he did not
understand all of his rights or defenses, and (5) inform Williams that his
defense may be "diminished by [his] dual role as attorney and accused."
SCR 253(2). Further, of the topics that a district court may cover with a
defendant under SCR 253(3), the district court only asked Williams about
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the level of his education and his understanding of the possible penalties if
found guilty. Finally, the district court did not make specific findings on
the record as required by SCR 253(4). The circumstances under which the
canvass was conducted do not clearly show that Williams knowingly and
intelligently waived his right to counsel. Hooks, 124 Nev. at 54, 176 P.3d
at 1084.
Although we conclude that the canvass itself was insufficient,
we must also look to the record as a whole to determine if it shows that the
waiver was appropriately granted. Id. at 55, 176 P.3d at 1085. The State
contends that by looking to the record as a whole, it is evident that, even if
the canvass was improper, Williams still knowingly, intelligently, and
voluntarily waived his right to counsel. During the pendency of the
proceedings, Williams had two attorneys and dismissed both of them. If
Williams's second appointed counsel had remained throughout the trial,
any error with respect to the Faretta canvass would have been cured. But
because another Faretta canvass was not conducted after the withdrawal
of Williams's second attorney and the district court relied on the original
improper Faretta canvass, the district court's error remained.
Furthermore, because every reasonable presumption against
waiver should be made, United States v. Erskine, 355 F.3d 1161, 1167 (9th
Cir. 2004), and the "defendant's courtroom performance [cannot be used]
in deciding whether the defendant was competent to waive his right to
counsel," United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir. 1978), the
district court's canvass and the record as a whole do not show that
Williams's waiver was knowing, intelligent, and voluntary. Because
harmless-error analysis does not apply, reversal and a new trial are
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necessary. Hooks, 124 Nev. at 57-58, 176 P.3d at 1086-87. Accordingly,
for the foregoing reasons we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for a new trial and further
proceedings consistent with this order."
A 5
Douglm
Saitta
cc: Hon. Doug Smith, District Judge
Sandra L. Stewart
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
'Williams raises several other issues on appeal. In light of our
decision to reverse the judgment of conviction, we need not reach these
issues.
8