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ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-16-908
Opinion Delivered: June 7, 2017
DONNELL ROBINSON APPEAL FROM THE CHICOT
APPELLANT COUNTY CIRCUIT COURT
[NO. 09CR-14-62]
V.
STATE OF ARKANSAS HONORABLE R. BYNUM
APPELLEE GIBSON, JUDGE
AFFIRMED
WAYMOND M. BROWN, Judge
Appellant Donnell Robinson was found guilty of first-degree murder by a Chicot
County jury. He was sentenced to forty years’ imprisonment. He argues on appeal that the
trial court erred and abused its discretion in: (1) its failure to make specific directed-verdict
motions on appellant’s behalf, thus not preserving the issues for appeal; (2) denying
appellant’s motions for directed verdict based on insufficiency of the evidence; and (3) its
finding that appellant had made an effective waiver of his right to counsel and could proceed
pro se. We affirm.
Appellant was charged in the July 17, 2014 murder of April Taylor. Taylor was
found dead on the floor in her home due to blunt force injuries to her head. 1 Appellant
1
Arkansas Department of Human Services (DHS) was bringing Taylor’s four children
for a scheduled visit, but Taylor did not answer the door. One of the older children looked
through a window and saw Taylor lying on the floor. DHS then contacted the local police
Cite as 2017 Ark. App. 377
and Taylor were in a relationship and had been living together until July 16, 2014, when
Taylor kicked appellant out of the house. While detectives were on the scene conducting
interviews with Taylor’s neighbors, they developed appellant as a person of interest.
Appellant subsequently appeared and was taken in for questioning. An arrest warrant was
issued for him on July 18, 2014, and he was charged by information on August 5, 2014, as
a habitual offender with Taylor’s death. Appellant had his first appearance before Judge
Don E. Glover on July 21, 2014. At that time, he was advised of the charges against him
and was told that he would be appointed an attorney to represent him. Appellant’s plea and
arraignment took place on September 8, 2014, before Judge Sam Pope. At that time,
appellant informed the court that he had hired his own lawyer, Greg Robinson, to represent
him. After several continuances, appellant’s omnibus hearing took place on March 30, 2015.
At that time, appellant informed that court that he had fired his attorney because the attorney
had not talked to appellant about the case and because the attorney was “no good” and was
an “ineffective assistance of counsel.” Appellant advised the court that he wished to
represent himself and that he had done so in a trial in 2009. 2 Upon questioning by the
so that entry could be made into the home. By the time medical personnel arrived, Taylor
was dead.
2
In that case, appellant (pro se) was found guilty of terroristic threatening and being
a felon in possession of a firearm by a Chicot County jury. He was sentenced to sixty years’
imprisonment. He appealed his convictions on five different grounds, including his
contention that the trial court erred in finding that he had effectively waived his right to
counsel. This court agreed that there had been no unequivocal, knowing, and intelligent
waiver by appellant of his right to counsel and reversed and remanded the case. Robinson v.
State, 2010 Ark. App. 430, 376 S.W.3d 484. After a new trial, appellant was found guilty
but received ten years’ imprisonment.
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court, appellant stated: 3
You asked me a while ago why did I want to represent myself. That is the only way
I can get my paperwork, [be]cause with an appointed attorney, he is not going to get
me the paperwork that I asked for and that I am due.
If I ask [the attorney] to send me this, send me that, this is what you are supposed to
send me because this is my guaranteed rights of the United States Constitution and
Arkansas Constitution, just like I will say here now, the oath of office, you all
solemnly swear to affirm and support the Constitution of the United States and the
Constitution of the State of Arkansas. You all are just rebelling against the United
States Constitution because you all are not following the rules, not even Arkansas
rules of criminal procedure. All I am asking for is justice right here, to follow the
rules.
The court responded by telling appellant that it sounded like appellant was “just spouting
off a bunch of generalities” and that he did not “know anything about the particulars.” The
court found that appellant was not capable of knowingly and intelligently representing
himself. The court discharged Robinson and appointed Steven Porch to represent appellant.
At the May 4, 2015 hearing, Porch informed the court that appellant “has stated
unequivocally and emphatically that he wants to exercise his. . . right to represent himself.”
According to Porch, appellant refused to talk to Porch or give him any information
necessary for Porch to effectively represent appellant. The following colloquy took place:
APPELLANT: I decided that ever since my attorney messed me around. I decided
that because I want my United States Constitution of America rights
that is guaranteed to me. That is what I want. And I am not getting
it from you judge.
While you are talking to me, I am going to let my attorney read this
here. If he can sign this contract that he is going to take and fight for
my United States Constitution of America rights, the amendment
fourth, fifth, sixth, eighth, ninth and 14th, I might would use him.
3
All quotes and colloquies are as abstracted by appellant.
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The only thing the contract says that he is going to defend my United
States Constitution of America rights. You can read it yourself, judge.
If he ain’t going to sign it, that is the reason I am not going to use
him because I know he is not for me.
THE COURT: There are some dangers associated with representing yourself. When
you represent yourself, you are really trying, wearing two hats. One
of the hats you are wearing is that you are a defendant in a case.
There are all allegations against you that you have committed a crime
and the jury has to decide whether or not the State has met its burden
of proof to prove those allegations beyond a reasonable doubt.
The other hat you are wearing is as a defense lawyer. And sometimes
it is hard to do both in my experience and observation. Not being
thoroughly trained in the law, it would be really easy for you to
waive some rights that you have in representing yourself and making
an improper record here in this courtroom.
I am trying to talk to you to determine whether or not I ought to let
you represent yourself. It is my obligation to warn you of the dangers
of doing that and that is what I am doing. Do you have any questions
about what I have said?
APPELLANT: No sir. All I know is that you are not going by the United States
Constitution statutes or the rules of Arkansas Constitution. And you
all did sign an oath which is Arkansas Constitution 19, section 20,
saying that you will promise to uphold and support the United States
Constitution and Arkansas Constitution. And you are not supporting
them, judge. That is perjury.
THE COURT: I don’t need any lectures from you. I know the oath I took. I was
there when I took it. You were not. But you are stupid. You are a
fool.
APPELLANT: I, Donnell Robinson, in front of this court, all of the spectators, am
getting down on my knees in front of everyone here begging you, as
if you are a God to grant me my guaranteed rights of due process of
law by the Arkansas Constitution, section 8, but not limited to, to
grant me equal protection of law by the 14th amendment of United
States Constitution of America, but not limited to, also to grant me
my rights as a United States citizen and grant me my rights by
Arkansas rules of criminal procedure.
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And if I cannot receive these rights, I will have my family to post on
the Internet to the social media, putting all of your actions on with
your name first explaining your violation, bias and prejudice toward
me to show proof that you judge, are not honored of trust and not
qualified to sit on a bench as a judge, a judge that jumps on a person
at a public place breaking and violating the laws that he is supposed
to protect.
THE COURT: You are a fool. I will say it the last time. You do not know what you
are doing.
APPELLANT: Well, the judge called me a fool. You heard it right here. I am a
fool. But I will have your job. I’m going to sue you, judge. You
called me a fool. You know the Bible says do not call nobody no fool
and you just called me a fool three or four times.
THE COURT: You are. You keep acting the way you do, this thing is going to be
checked around from judge to judge and you are going to be in the
penitentiary forever. I am worried about you, because you- -you are
so- -you do not know what you are doing. That’s right, you are so
foolish.
APPELLANT: I am so foolish, right? Remember? I am a fool. That is what you
just said, judge.
THE COURT: I do not know that anybody is capable of handling Mr. Robinson’s
case. He has acted in such a way that I cannot do it fairly. I am
recusing. I am not going to mess with him anymore. Judge Glover
has already recused, I think. That concludes my business for today.
Appellant appeared before Judge Glover on July 6, 2015, for a hearing. When asked
if he had a lawyer, the following took place:
APPELLANT: No sir, I am representing myself.
THE COURT: Okay. Do you understand you have the right to be represented by
counsel?
APPELLANT: Yes, sir.
THE COURT: And you have the right to represent yourself as well. Have you ever
had a lawyer to represent you?
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APPELLANT: I had one but I fired him, because he was not doing his job. I would
not have a problem with a lawyer if he was fighting for my United
States Constitution of America rights and my Arkansas Constitution
of America rights of due process of law; both of them, and of the
ninth amendment too.
I am invoking, which it means calling upon my constitutional rights,
right now. Because you did sign the Arkansas Constitution, article
19, section 20, oath of office, of public offices, when you got your
job. You did say, I do solemnly swear to affirm that I will support
the Constitution of the United States and the Constitution of the
state of Arkansas. And without doing that, this case is that that would
be perjury, because if you do not support the Constitution of the
United States and Arkansas Constitution. And if you are found guilty
of perjury, you can get two years in the penitentiary [be]cause you
violated my fifth amendment of United States Constitution of
America, of due process of law.
And also, you have violated my Arkansas Constitution, article 2,
declaration of rights, section 8, due process of law, but not limited to
all my rights. The fourth amendment, the fifth [a]mendment, the
sixth amendment, the eight amendment, the ninth amendment and
the 14th amendment of the United States Constitution of America,
you all have violated, infringed and abridged, meaning to cut short,
to belittle. So I am invoking, calling upon, my rights as of today.
THE COURT: Well, just slow down a bit now. First of all, I am not on trial this
morning, but you are. And I understand you are at omnibus hearing.
APPELLANT: I want my constitutional right issues. My fundamental rights of due
process. You all are violating them.
THE COURT: Well, exercise your rights in whatever way you need to. Now, what
I normally do in cases- -you have the right to represent yourself.
Normally, in cases like this, I will [ap]point a standby lawyer who
will be accessible to you for any legal assistance or help, or footwork,
that you might request of him or her. And I am going to institute
that process if it is not in existence already.
The public defender’s office will serve as a standby lawyer to research
and will assist you in any way you want him to assist you. He will
not be compelled until you serve or take advantage of your
constitutional right to represent yourself.
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Now, there is going to be a jury trial. There’s going to be rules of
criminal procedure, whether you represent yourself or whether
somebody else assist you, whoever handles the case will be required
to follow. And being a lawyer is very similar to being a physician.
Most of us, we will all have medical issues. We go and get the
assistance of a doctor if we want to. That is the option we have.
Some of us may work on our ailments ourselves. But you ultimately
have your right to work on these issues yourself. I just want you to
know that I am going to appoint a standby lawyer for your benefit.
I am going to give you time to go through all of your motions. The
public defender will be available. You can talk to him if you want
to; it is not required. Then I am going to call you up later. I am
going to continue this momentarily.
I am going to call up Mr. Robinson. Mr. Robinson, I have read
your previous case, and I am going to consider your pleadings as a
motion for me to recuse. And I am going to do that. I am going to
recuse and assign it to another judge to hear this matter. So you will
get another court date from another judge. Have a good trip back.
Appellant appeared before Judge R. Bynum Gibson on August 17, 2015, for hearing.
At the hearing, Porch informed the court that appellant refused to meet with him and sent
a statement to him that stated, “I, Donnell Robinson, do not and will not accept attorney
Steve Porch as my attorney. I will represent myself as pro se. The sixth amendment of the
U.S. Constitution gives me the right to represent myself.” Appellant signed the letter. The
court questioned appellant after noting that certain questions had already been asked and
answered on the record before the two previous judges. The following took place:
THE COURT: Would you require any attorney, not just Mr. Porch or Mr. Mazzanti,
but any attorney that represented you to sign what Mr. Porch
declined to sign?
APPELLANT: If they let my motions go, not what he is got to say, but my motion-
-yes sir, I would want the attorney to argue my motions. That is
correct. I ain’t going to say that would apply to any attorney. But,
like I said, if they cannot fight for my United States constitutional
rights or my Arkansas rights, I cannot accept that attorney. But you
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can give him to me and I accept him and then he is going to fight for
me, I am going to- -
THE COURT: I will take that as a “yes.” Very well. Now, the only other questions
I wish to ask you are these regarding you representing yourself. You
have done it once in a case before Judge Glover. You were convicted
and received 60 years. Did you conduct the voir dire in that case of
the jury?
APPELLANT: Well, no, sir. I did not have too much to say, I will say it like that.
THE COURT: Well, you know what voir diring the jury is?
APPELLANT: No, sir, but I can look it up because- -
THE COURT: And I am sure you will. I am just asking you because it is part of the
trial for you [to] select the jury. All right, with respect to rules of
evidence, particularly those that govern the admissibility of
competent evidence, of relevant evidence, and govern the non-
admissibility of hearsay unless it is subject to some exceptions, are
you at all familiar with those rules of evidence?
APPELLANT: I really did not understand too much of what you said, but I know
about the hearsay and- -
THE COURT: Are you familiar with rules of evidence governing the admissibility
or inadmissibility of evidence because it is either incompetent, it is
hearsay, or not relevant? Are you familiar with those rules?
APPELLANT: I am familiar with them, but before we go to them rules, I would like-
THE COURT: But let me do this and then I will hear from you. Okay. I take that
as a no. Those rules, let me explain to you are important, especially,
in a case such as this because after reviewing a portion of the file, I
see that the State’s case is based upon circumstantial evidence. In
other words, there is no direct evidence. There’s nobody who is
going to testify that they saw you harm the victim. There is not
going to be any confession that comes in. You have not made any
incriminating statements, so the State is going to rely upon
circumstantial evidence. And in those cases, particularly, it is
important to be acquainted with the rules of evidence that you can
make proper objections because even hearsay, if it comes in not
objected to, is competent evidence that can sustain a conviction.
And an attorney, if a trained attorney representing you, they may be
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able to prevent hearsay from coming in; and because you do not
know what it is when you see it, or hear it, you may not and it could
prejudice your case. That is the reason that, particularly in the
circumstantial evidence cases, representation by a competent counsel
is important. And I want you to understand that before you waive
your right to counsel. Do you understand what I have just told you?
And you still wish to waive your right to counsel?
APPELLANT: Yes, sir.
THE COURT: Okay. Now, with respect to jury instructions, in a case such as this
first degree murder case, at the conclusion of the proof, the State is
responsible for offering jury instructions. The defense may offer jury
instructions also. That is things I tell the jury that should guide them
in their deliberations, the law. It is the responsibility of the
defendant, if you believe that there is an instruction that would help
your case or be favorable to you, something I should tell the jury. It
is your responsibility to prepare that instruction, submit it to the
court; just as if you had an attorney, the attorney would be. And the
State is not obliged to furnish instructions that may favor you on
lesser-included offenses or anything like that. So knowing that, does
that affect your decision in any way to- -
APPELLANT: No, sir.
THE COURT: And I do not know anything about the case you had in front of Judge
Glover. I see the first trial you got sixty years where you represented
yourself. I see the second trial where you did not represent yourself,
apparently somebody represented you, you got ten. Big difference
between ten and sixty. Do you think it was because you had a
lawyer?
APPELLANT: No, sir, because the lawyer did not do his job. He did not mention
nothing about due process of law at all. He did do fifty years better
than I did for myself. And at the same time, that was double jeopardy,
which I can sue for that, but he was not fighting for me at all. Yes
sir. I do know the difference sometimes in the outcome if you have
a lawyer and do not have a lawyer.
I would like to say, if you do not mind, I was wanting to know if
you are going to honor your oath of office of the Constitution-
THE COURT: I have always honored my oath of office, at least I think so, and I am
not going to listen to anybody’s sermon on that.
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APPELLANT: I am going to ask you another- -
THE COURT: You are not going to ask me anything else. I am giving you the trial
dates. It will be a jury trial. I will set it for pretrial. You are having
the omnibus hearing right now. I am conducting a type of pretrial
here. If you want to say anything else, you will have to say it to the
wall outside the courtroom because I will have you removed in a
flash- -if you want to remain in here, you will have to be quiet right
now while I talk to my case coordinator. Do not say anything or I
will have you removed- and I do not want to have to do that- but it
will not bother me.
Appellant’s first pre-trial hearing took place on October 8, 2015. At that hearing,
the following took place:
APPELLANT: I want to make it clear to this court right now that I, Donnell
Robinson, want an attorney appointed to me, which is my
guaranteed right by the sixth amendment of the United States
Constitution; and amendment 14 of the United States Constitution
gives me equal protection of the law in which Dr. Martin Luther
King and Ms. Rosa Parks fought for, also Mr. Dred Scott.
THE COURT: I agree. You are entitled to an attorney if you want one. Do you
want one?
APPELLANT: Yes, sir. And I also want- -since Judge Pope called me a fool in court
- - which fool do mean stupid, and stupid do mean lack of normal
intelligence- -I feel like I am entitled to a psych evaluation because
of- -he did call me fool numerous times in court and foolish- -and
foolish do mean unwise, lack of wisdom or judgment. So in that
case, I should be by law- a psych evaluation, but I also want an
attorney appointed to me by the sixth amendment of the United
States Constitution.
THE COURT: All right, I will [ap]point you [an] attorney, but- -all right. Now, let
us take this one at a time. You want an attorney appointed and you
want a psych evaluation. Have you had a psych evaluation in the past
by the state hospital?
APPELLANT: I do not recall doing it, but Judge Pope called me a fool and so I–
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THE COURT: Let us do this, let me take the attorney business . . . first. All right,
Mr. Porch is here. He is the chief public defender. He is the one
who filed the motion to suppress. I will appoint him at this time;
and he can have a seat beside you.
APPELLANT: Well, is he willing to fight for my United States constitutional rights-
-if he is not going to fight for that, I am not going to accept him.
Automatic. I want my rights, my guaranteed rights of the United
States. And by you not doing that, you are obstruction of justice, and
being corrupt, judge, because you are not going by the oath of office
which is in Arkansas Constitution, article 19, section 20- -which you
did promise to uphold and support the United States Constitution and
the Arkansas Constitution- -and by not doing that, judge, that is
perjury on your behalf.
THE COURT: Now, Mr. Porch is hereby appointed. If you would take a chair by
the defendant.
APPELLANT: I need to ask you: are you violating my United States Constitution of
America rights and my Arkansas Constitution of America rights that
are all guaranteed to me? I want that personally from you, please, sir.
Are you violating, infringing, abridging my United States
Constitution of America in Arkansas Constitution of America
guaranteed rights?
MR. PORCH: Your Honor, as you have appointed me counsel on that, I strongly
disagree with what was just said. I prefer to be the mouthpiece.
APPELLANT: Section 4 gives me freedom of speech- -you will not fight for my
guaranteed rights, so how is he going to be a mouthpiece for me? It
is just like a dog on a chain where they tell you to do, you jump and
do. I want somebody to defend my rights, not somebody to sit here
and tell me- -piss on my back and tell me it is raining- -no, sir, I will
not accept- Yes, I will have a seat, but I am still going to talk- -this
man wants me to sit there like a slave- -do not forget, Judge Pope
called me a fool, so hey, I guess I am a fool- -stupid.
THE COURT: So, therefore, he has decided to disrupt at this point- -the closer we
get to trial- -and he has caused two judges to leave the case. This
one is not going to leave the case or be baited into it because it has
got to be resolved. At this point, at least, the defendant has made a
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motion for mental eval- -which the court under the circumstances is
going to grant. 4
. . . .
The trial date is postponed and we will have a pretrial after the report
comes back. He will be brought back for pretrial. And Mr. Porch
has not made a motion to that effect, but the Court will again relieve
Mr. Porch. I will ask you to remain as standby and be present at
any future hearings. As soon as I appointed Mr. Porch, he was
berated by the defendant here in open court. And you cannot have
dual representation, number one; number two, it was clear that Mr.
Robinson would not cooperate at all and make Mr. Porch’s job
impossible.
When Mr. Robinson comes back, I am going to request that the
Department of Corrections (sic) furnish security and provide a stun
belt under his shirt so that if there are disruptions, the defendant can
be controlled. I am telling Mr. Robinson now, you have a right to
be present during the proceedings, but that right is not unlimited;
and if you cannot control yourself, sit down when the Court tells
you to, not speak when the Court tells you to, attack counsel, attack
the Court - - if you cannot conduct yourself as an attorney would,
or is required to in the courtroom, I am not required to have you
present at trial. I want you to be present, but only if you can
conduct yourself civilly and within the rules of conduct. This court
stands in recess.
The next pre-trial hearing took place on February 22, 2016. At that time, appellant
stated that he did not wish to proceed pro se. The colloquy that proceeded is as follows:
APPELLANT: Excuse me, Your Honor, I did not decide to be pro se, not at all. I
am still wanting my sixth amendment right of an attorney. First, I
would like to say that I want an attorney to investigate my arrest
because I was not indicted like Aaron Lewis was in the Beverly Carter
case. And he had a seven-hour evidentiary hearing that Judge Herbert
Wright gave him. (Unintelligible) prosecution, my equal protection of
rights by the 14th amendment.
THE COURT: Well, at this point, I have overruled that motion because you do not
4
Appellant was found competent to stand trial.
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have--
APPELLANT: Yes, you do, but I would like to see this here, first, too: could I get
time of death, please?
So it is the State’s position that somewhere between midnight on the
17th or 11 o’clock on the 16th, and 10 o’clock the next day on the
17th, that Defendant killed Ms. Taylor; is that correct?
THE STATE: That is correct.
. . . .
APPELLANT: With all due respect, I do not need no standby attorney. I need an
attorney to fight for me- -I need one to fight for me.
THE COURT: This is what I am going to do, I am going to have you removed from
the courtroom at this time.
. . . .
THE COURT: All right, I think the main thing is to make sure the subpoenas are
issued and that he wishes to subpoena. I will go over with him things
about voir dire but it is pointless at this point because he is not going
to listen to anything without interrupting. And so he has chosen to
proceed pro se, in this Court’s opinion; and I am not going to force
anybody from the public defender’s office to collaborate with him, and
take the abuse, or sign any contracts, or take any abuse. And so that is
that and this is not his first rodeo. He has been on trial in this
courtroom before-he was pro se-so he very well knows what he is
doing. You can hear him outside the courtroom now. So that is that.
A pre-trial in-chambers conference took place on March 8, 2016, before a jury was
to be picked for appellant’s trial. At that time, the following pertinent colloquy took place:
THE COURT: All right, Mr. Robinson, come on in, have a seat. We are on the
record. This is a first-degree murder case. We are going to pick a
jury, this afternoon.
Mr. Robinson appears here for trial in his prison attire. Let the
record reflect that at the last pretrial I directed the public defender
to make clothes available to him at the local jail. The public
defender did that; and the sheriff called me a minute ago and said
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that Mr. Robinson declined the clothes and wanted to be tried in
prison attire, his prison whites.
APPELLANT: That is right, sir. But I also want an attorney because he is not
protecting my guaranteed rights of the United States Constitution, or
the Arkansas Constitution, or the...I am telling you that he is supposed
to protect my rights. That is what the Bar Association says. The
American Bar Association says he has got two obligations: to uphold
the law and to protect his client’s rights[.] He has not put in any
motion; he is not put in nothing at all. I have been doing all the
work. And so I am asking you right now, appoint an attorney to
protect my rights. That is my sixth amendment right of the United
States Constitution. I want an attorney to protect me and to defend
my rights, not to...I do not need no standby attorney, not at all. I
finished 11th grade- -I can read, I can comprehend- -but I need
somebody to defend my rights.
THE COURT: I am glad you said all of that because I want the record, for appellate
purposes and for my purposes, to reflect that when you pointed
referring to “he” you are referring to Steve Porch, who I have
appointed to represent you before - -
And, number two, you had a paid attorney, a very good one, Greg
Robinson from Pine Bluff. And while this case was pending- -before
he recused before Judge Pope in April- -you fired your hired
attorney because you said he would not defend your constitutional
rights. When I did assign Mr. Porch to represent you during a
pretrial, when you said you wanted a lawyer, you immediately stood
up, handed him a document that you wanted him to sign, and I said
no, he is not signing any document. And for that reason, and because
of that opinion in the previous case involving Judge Glover, and
wanting to appear in prison whites, I know that you are trying to
create error- -or what we call “invited error”- -in this court. And I
am not even required to allow you to remain in the courtroom if
you cannot conduct yourself with civility.
Now, what I am telling you is this: I am not granting you any
attorney besides Mr. Porch because to do so would further continue
this trial -you can argue with me so far- -and I am going to send you
back to the jail, and we will pick this jury without you. You can be
present in the courtroom and participate in the voir dire, but only if
you conduct yourself civilly. I am not required under the sixth
amendment to allow you to stay in the courtroom and be disruptive-
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APPELLANT: Well, I will represent myself. I will not let Steve Porch represent me
because he is not protecting my guaranteed rights of the United
States Constitution, Arkansas Constitution, Universal Declaration of
Human Rights, or of the Rules of Criminal Procedure. So I would
have no other choice but to represent myself, even though I do not
want to, but I will because Steve Porch–
THE COURT: Then you will conduct yourself civilly. You will not argue with the
Court in the presence of the jury or the jury panel. If you do then I
will, without warning at that point, remove you from the courtroom
and send you back to the jail; and the trial will go on without you
until such time as you can agree to abide by the rules. Now, that is
that.
APPELLANT: I have a question.
THE COURT: No, no more questions. We are here to pick a jury. And when the
jury panel is sworn, the court will ask certain questions that reflect
on their qualifications to serve in this case, then I will turn to the
prosecutors, and they can ask some questions concerning this case,
their qualifications. I will also allow you, if you wish, to ask any
questions concerning whether or not any of them are close with law
enforcement, or have any tendency to lean one way or another and
base their decision on something other than the evidence. If you do
anything besides ask a proper question in that respect, I will disallow
it and tell you to have a seat, the same way I would the prosecutor.
And, again, I certainly want you to be able to remain in the
courtroom, Mr. Robinson, but I will not hesitate to remove you-
this is the one warning you are given-if you do not act civilly.
APPELLANT: As long as he is not representing me, I am fine with that.
THE COURT: All right. He is not.
The jury was empaneled and the trial proceeded as scheduled. At the conclusion of
the State’s case, the court stated the following:
Now, to protect the record, I am going to go to- -the defendant does not know to
do it. I am going to make a ruling that- -treated as though he has questions of the
sufficiency of the evidence for a prima facia case; and I am going to find that this is
not the case that I would direct a verdict in against the State. The trial court is not
supposed to, normally, make motions, ask questions, but so that there is no
fundamental error, I am going to treat this as a ruling on a motion for directed verdict.
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And I find that there is sufficient circumstantial evidence for this to go to the jury if
there was no further proof put on.
The court renewed the motion at the conclusion of all of the evidence, by stating:
Now, what the Court is going to do at this point is to make the motion for the
defendant. [It] is a motion to dismiss for insufficiency of the evidence. You will
renew the previous motion for a verdict and [the court will] deny the same in order
to protect the record in case there is an appellate (inaudible).
The jury found appellant guilty of first-degree murder and sentenced him to forty years in
the Arkansas Department of Correction. The sentencing order was entered on March 16,
2016. Appellant filed a timely notice of appeal on April 8, 2016. This appeal followed.
As his first point on appeal, appellant argues that the trial court erred in failing to
make specific directed-verdict motions on appellant’s behalf, thus preventing the
preservation of the issues on appeal. 5 Generally, a defendant does not have a constitutional
right to receive personal instruction from the trial judge on courtroom procedure. 6 Nor
does the Constitution require judges to take over chores for pro se defendants that would
normally be attended to by trained counsel as a matter of course. 7 Rule 33.1(a) of the
Arkansas Rules of Criminal Procedure provides that a directed-verdict motion “shall state
the specific grounds therefor.” This court interprets Rule 33.1 strictly, 8 and failure to
5
We attempted to certify this issue to the supreme court as an issue of first impression,
an issue of substantial public interest, and a significant issue needing clarification or
development of the law; however, it denied certification.
6
McKaskel v Wiggins, 465 U.S. 168 (1984).
7
Id.
8
Grady v. State, 350 Ark. 160, 85 S.W.3d 531 (2002).
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comply with subsection (a) “will constitute a waiver of any question pertaining to the
sufficiency of the evidence to support the verdict or judgment.” 9 In this case, the court did
not make a specific directed-verdict motion on appellant’s behalf. Therefore, we hold that
appellant’s sufficiency challenge is not preserved. However, there is no requirement for the
court to take over functions for a pro se defendant. Appellant has failed to offer any
convincing argument or legal citation for his claim that the court was obligated to make
specific directed-verdict motions to preserve his sufficiency challenge.
As his second point on appeal, appellant contends that if this court finds that
appellant’s sufficiency challenge is preserved, the court erred by not directing the verdict in
appellant’s favor. We have already found that appellant’s challenge to the sufficiency of the
evidence is not preserved because there were no specific grounds argued as required by the
rules.
Finally, appellant contends that the trial court erred in its finding that appellant had
made an effective waiver of his right to counsel and could proceed pro se. The Sixth
Amendment of the United States Constitution, made obligatory on the States by the Due
Process Clause of the Fourteenth Amendment, guarantees an accused the right to have the
assistance of counsel for his defense. 10 Article 2, section 10, of the Arkansas Constitution
provides that an accused in a criminal prosecution has the right to be heard by himself and
his counsel. 11 No sentence involving loss of liberty can be imposed where there has been a
9
Ark. R. Crim. P. 33.1(c).
10
Gideon v. Wainwright, 372 U.S. 335, 342–44 (1963).
11
Barnes v. State, 258 Ark. 565, 568, 528 S.W.2d 370, 373 (1975).
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denial of counsel. 12 On the other hand, a criminal defendant has a right to represent himself
at trial where his waiver of the right to counsel is knowingly and intelligently made. 13
A defendant may proceed pro se in a criminal case when (1) the request to waive the
right to counsel is unequivocal and timely asserted, (2) there has been a knowing and
intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct
that would prevent the fair and orderly exposition of the issues. 14 Our standard of review
is whether the trial court’s finding that the waiver of rights was knowingly and intelligently
made was clearly against the preponderance of the evidence. 15 Appellant argues that the
court erred in finding that he effectively waived his right to counsel. He also contends that
the court erred by denying his subsequent “repeated unequivocal requests for counsel.”
Determining whether an intelligent waiver of the right to counsel has been made
depends in each case on the particular facts and circumstances, including the background,
the experience, and the conduct of the accused. 16 Every reasonable presumption must be
indulged against the waiver of fundamental constitutional rights. 17 A specific warning of
the dangers and disadvantages of self-representation, or a record showing that the defendant
12
White v. State, 277 Ark. 429, 432, 642 S.W.2d 304, 306 (1982).
13
Faretta v. California, 422 U.S. 806 (1975).
14
Bledsoe v. State, 337 Ark. 403, 406, 989 S.W.2d 510, 512 (1999).
15
Pierce v. State, 362 Ark. 491, 497, 209 S.W.3d 364, 367 (2005).
16
Bledsoe, supra.
17
Id.
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possessed such required knowledge from other sources, is required to establish the validity
of a waiver. 18 The burden is upon the State to show that an accused voluntarily and
intelligently waived his fundamental right to the assistance of counsel. 19 The “constitutional
minimum” for determining whether a waiver was knowing and intelligent is that the
accused be made sufficiently aware of his right to have counsel present and of the possible
consequences of a decision to forgo the aid of counsel. 20
Here, the record is replete with colloquies between the court and appellant as it
pertained to him wanting to proceed pro se. Appellant was warned of the general dangers
associated with proceeding pro se, and he also knew first-hand of such danger; he was
informed of the specific disadvantages in proceeding pro se under the circumstances of his
case due to the State’s circumstantial case against him; and he was questioned about his
understanding of the legal process. However, appellant insisted that he be allowed to
represent himself. Once the court granted appellant’s wish and appointed Porch as his stand-
by attorney, appellant changed his mind and insisted that he be appointed an attorney.
When questioned by the court as to why he did not want Porch as his attorney, he stated
because Porch would not sign his “contract.” When asked whether he would require any
attorney representing him to sign the “contract,” his response suggested that he would. The
court then informed appellant that the only attorney it would grant him was Porch.
Appellant stated that he did not want Porch as his attorney and that he would represent
18
Id.
19
Hatfield v. State, 346 Ark. 319, 57 S.W.3d 696 (2001).
20
Id.
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himself. Porch was available throughout the trial if appellant chose to use him; however,
appellant did not take advantage of Porch’s presence. We hold that appellant made an
effective waiver of his right to counsel.
We note that, even in the absence of a voluntary and intelligent waiver of the right
to counsel, the right to counsel may be forfeited by a defendant who engages in conduct
that prevents a fair and orderly exposition of the issues. 21 The right to counsel of one’s
choice is not absolute and may not be used to frustrate the inherent power of the court to
command an orderly, efficient, and effective administration of justice. 22 Once competent
counsel is obtained, the request for a change in counsel must be considered in the context
of the public’s interest in the prompt dispensation of justice. 23 The constitutional right to
counsel is a shield, not a sword, and a defendant may not manipulate this right for the
purpose of delaying trial or playing “cat-and-mouse” with the court. 24 Appellant had access
to competent counsel, and he was obviously attempting to prevent the scheduled trial and
thwart the court system. Under these circumstances, the court was correct in refusing to
appoint appellant an attorney other than Porch.
Affirmed.
HARRISON and VAUGHT, JJ., agree.
Potts Law Office, by: Gary W. Potts, for appellant.
Leslie Rutledge, Att’y Gen., by: Rebecca Kane, Ass’t Att’y Gen., for appellee.
21
Beyer v. State, 331 Ark. 197, 962 S.W.2d 751 (1998).
22
Burns v. State, 300 Ark. 469, 780 S.W.2d 23 (1989).
23
Id.
24
Wilson v. State, 88 Ark. App. 158, 196 S.W.3d 511 (2004).
20