dissenting.
I.
The Court of Appeals opinion, found at 104 Idaho 119, 705 P.2d 1674, thoroughly and competently addressed the issue which was presented to it. In doing so, it both properly and correctly applied precedential decision law of the Supreme Court of the United States, the Supreme Court of Idaho, the Supreme Court of Arizona, the Supreme Court of Nevada, the Ninth Circuit Court of Appeals, and two Washington courts of appeal. It also applied Idaho statutory provisions, and made mention of the Idaho Trial Judges’ Manual. The Court of Appeals did not concern itself at all with the criminal charge that Langley was tried on, other than to note that Langley represented himself on a charge of armed robbery.
The lesson to be learned today is simply stated: When a majority of this Court decides to overturn a question-of-law decision of the Court of Appeals in a criminal case, it is important that no later than in the second paragraph the reader be told that the then suspect Langley was identified “as the man who held them at gunpoint, forced them to lie on the floor, handcuffed them, and threatened to ‘blow off’ their heads.”
Having made that introduction, it then becomes an easy matter indeed to ignore the law which the Court of Appeals applied — not to the question of the alleged crime nor the character of the defendant— to the presented issue which was whether the trial court had properly ascertained that Langley was knowingly and intelligently waiving his right to be represented by counsel, as required by Idaho statutory law and, more importantly, the Constitutions of the United States and the State of Idaho, and constitutional case law of both jurisdictions.
The majority, in setting the stage in its second paragraph, also includes therein the advice that “Langley was ‘no stranger’ to the criminal system.” And, as though important, mention is then made that he filed over 20 motions, and appeared in district court to argue orally at least ten times. All of which, if that does not suffice to point him out as an undesirable litigant, was augmented by his obstinacy in requesting and being granted a trial continuance. The clincher would come at trial itself, when he refused to perform as counsel pro se, and allowed as how he would rather be in Philadelphia, or, more accurately, “back in jail” — as the majority notes.
All of the foregoing had nothing to do with the question of law which was presented on the appeal, which the majority states on page 897, 719 P.2d p. 1157 “Langley ... argues that his conviction should be overturned since he was not adequately informed of the dangers of self-representation.” That majority then turns to the dialogue which took place between the district judge and Langley at arraignment in district court, quoting exactly what is found at the opening of the Court of Appeals’ opinion. At the bottom of page 898, 719 P.2d at p. 1158, the majority turns to Faretta, but only after pausing long enough to reflect upon reflections of court minutes which are “unclear” — although what is clear to the majority (and any other reader) that Langley knew that he “had assumed full responsibility for his own defense.” Which is to add very little, if anything, to the question of what amounts to a valid waiver intelligently and knowingly made — which was the focus of the Court of Appeals’ inquiry and decision.
A quotation from Faretta is inserted into the majority opinion for window dressing, so it may seem. The particular quotation falls abysmally short of addressing the issue, and seems to serve only as a supposed predicate that the majority “will not allow Langley, whose record indicates a well-developed relationship with the criminal system, to manipulate the system.” One would think, however, that if anything, that history, p. 899, 719 P.2d p. 1159 n. 5, establishes that Langley’s track record at running the gauntlet of the criminal system was nothing to write home about. Whether most, if not all, of those convic*902tions were uncounselled guilty pleas is a totally unknown fact. But, having entered the arena of surmise, the majority continues to beat the same conjectural drum:
Based even upon the record before us, we are unable to find that the district court’s attempts to warn Langley of the dangers of self representation were inadequate. It must be kept in mind that Langley was not a first time offender, confronting the criminal justice system for the first time. Rather, Langley was a seasoned veteran of courtroom battles. We are cited to no controlling authority which would require the district court, faced with the circumstances of this case, to do more than it did.
P. 899, 719 P.2d at p. 1159.
The majority opinion stands for this much, and no more: If an accused “elects” 1 to represent himself, and so conducts himself so as to give the appearance of a not-too-smart obstructionist, notwithstanding being told by a judge that the judge is not attempting his own representation in a civil case, and continues to insist upon self-representation, the Idaho Supreme Court will hold that the district judge has fully and properly ascertained that the accused has knowingly and intelligently waived his right to assistance of counsel at trial.
The least the majority could do in consigning the Court of Appeals opinion to the trash heap, and making a shambles of the law in the process, would be to affirm that court’s judgment on disposition of issues with which the majority does not take umbrage.
II.
Grossly unfair to Langley is the majority opinion’s characterizing him as a manipulator of the system, alluded to above. The complaint being made seems to be that Langley, who in district court insisted on self-representation, is to now be held es-topped from asserting in his brief that:
This Appellant was not capable of representing himself upon the charges here presented, and it was error to conclude otherwise and allow him to do so. The Sixth and Fourteenth Amendments guarantees that a criminal defendant in a State prosecution has a constitutional right to proceed without counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 [45 L.Ed.2d 562] (1975). This right is also conferred to Appellant by the Constitution of the State of Idaho, Article 1, section 13, which states in part: “(a criminal defendant has the right) to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel.”
However, when a defendant chooses to exercise his right to represent himself, pro se, he necessarily relinquishes many of the traditional benefits associated with the right to counsel. Cf. Von Moltke v. Gilles; [Gillies] 332 U.S. 708, 68 S.Ct. 316 [92 L.Ed. 309] (1948); State v. McCabe, 101 Idaho 727 [620 P.2d 300] (1980). But when any waiver of this right is made, the court must determine that such decision is knowingly and intelligently made. State v. Ruth, 102 Idaho 638 [637 P.2d 415] (1981); State v. LePage, 102 Idaho 387 [630 P.2d 674] (1981). As stated in Von Moltke, supra:
“The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an apprehension of the nature *903of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.
This case graphically illustrates that a mere routine inquiry — the asking of several standard questions followed by the signing of a standard written waiver of counsel — may leave a judge entirely unaware of the facts essential to an informed decision that an accused has executed a valid waiver of his right to counsel. (Footnote omitted). Id. 332 U.S. pgs. 723-724, 68 S.Ct. pg. 323.” (Emphasis added).
See also: State v. Verna, [9 Or.App. 620] 498 P.2d 793 (1972); State v. Chavis, [31 Wash.App. 784] 644 P.2d 1202 (1982).
Here, although Appellant has diligently sought the record of his waiver hearing, the record has not been reduced. See: Rpts. Trans, pg. 126 (Notice of Appeal); Motion to Augment the Record, January 30, 1984; Motion to Augment Record March 13, 1984. This Court has held that “Upon appeal, appellant carries the burden of presenting such a record as to enable our review of the asserted errors. In the absence thereof we will not presume error.” State v. Sima, 98 Idaho 643 [570 P.2d 1333] (1977). Under the circumstances presented here, Appellant submits that this per se rule may not be applied to him. Therefore, out of necessity, and in the absence of the record herein, Appellant asserts that no waiver hearing was ever held in this case.
This case presents a classic example of why the California and other state courts have required an examination into a defendant’s intellectual capacity, including a psychiatric evaluation where appropriate, before a trial judge makes the determination to allow a defendant to continue pro se, cf. People v. Salas, 77 Cal.App.3d 600, 143 Cal.Rptr. 755 (1978); People v. Lopez, 71 Cal.App.3d 568, 138 Cal.Rptr. 36 (1977). Each and every time Appellant appeared before the Court, he, preposterously presented arguments, not about the criminal case confronting him, but rather, the warrants upon which he was arrested in Utah and brought into Idaho. See: Footnote 1, supra.
The absence of a personal inquiry on the record will not of itself, necessarily require reversal; the record as a whole must demonstrate that the defendant knowingly and intelligently refused to accept counsel. United States v. Bird, 621 F.2d 989 (9th Cir.1980); United States v. Gillings, 568 F.2d 1307 (9th Cir.1978). But see: United States v. Dujanovic, 486 F.2d 182 (9th Cir.1973) (stating that a court should not grant a defendant’s request to proceed pro se without addressing the accused personally and determining on the record that the demand to waive counsel and proceed pro se is competently and intelligently made with understanding of the nature of the charge and the penalties involved). The record as a whole in this case discloses everything but an intelligent waiver. The repeated assertion of the warrant issue; the walking out and non-participation in his criminal trial; and, the incomprehension of the inevitable result of such actions, all unequivocally lead to the conclusion that Appellant was incapable of representing himself at every stage of his criminal trial.
Since the question ultimately is the subjective understanding of the Appellant rather than the quality or content of the explanation provided, the trial court should have questioned Appellant in a manner designed to reveal his understanding, rather than allowing Appellant to proceed in a quandry of “defective warrants” throughout his criminal proceedings with nay so much as simple questions requiring merely “yes” or “no” responses. See: United States ex rel. Miner v. Erickson, 428 F.2d 623 (8th Cir.1970). Under the circumstanc*904es here, the trial judge should have made a penetrating and comprehensive examination in order to properly assess that the waiver was made knowingly and intelligently. United States ex rel. Martinez v. Thomas, 526 F.2d 750 (2d Cir.1975). Although a lack of legal technical knowledge generally will not serve as a basis for denying assertion of the right to self-representation, Faretta, supra at 422 U.S. 836, 95 S.Ct. 2541, waivers of counsel have been held invalid where they were not intelligently or understanding^ made due to factors indicating inability to comprehend the matters before the court. Badger v. Cardwell, 587 F.2d 968 (9th Cir.1978) (defendant merely told pro se representation would not be in his best interest); United States ex rel. Martinez v. Thomas, supra, (educational and social background); People v. Barajas, [81 Cal.App.3d 999] 147 Cal.Rptr. 195 (1978) (defendant merely told he would be treated as if he had counsel); State v. Doss, [116 Ariz. 156] 568 P.2d 1054 (Ariz.1977) (defendant under extreme stress); People v. Salas, supra, (defendant asserted assigned attorney was of no help and not needed); People v. Lopez, supra, (defendant not advised on record of dangers and disadvantages of self-representation); State v. Bauer, [310 Minn. 103] 245 N.W.2d 848 (Minn.1976) (defendant had paranoic distrust of everyone connected with judicial system); State v. Tilley, 548 S.W.2d 199 (Mo.App.1977) (court made no examination into defendant’s awareness of elements of offense charged, possible defenses and mitigating circumstances); Commonwealth v. Tyler, [468 Pa. 193] 360 A.2d 617 (Pa.1976) (no penetrating and comprehensive examination of all circumstances was conducted); See also: 77 A.L.R.2d 1233, § 3 (1961) and the cases cited therein.
The Court in Faretta said a defendant should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he know what he is doing and his choice is made with eyes open.” Id. at 422 U.S. 835, 95 S.Ct. 2541. Even though each case is different, the trial courts should attempt to determine the subjective reasons for the defendant’s refusal to accept counsel. A defendant may believe he will be denied any opportunity to speak for himself; that no appointed lawyer would zealously represent him at a State fee (See: State v. McCabe, supra); that a distrust of the judicial system necessitates a pro se appearance for a fair trial; he may even feel that appearance pro se may afford a later basis for reversal on appeal; that based upon television portrayals a criminal trial is a simple matter; that the jury would be sympathetic to a lay person who acts as David against the Goliath of the State; because of a blind faith in his innocence and the infallibility of the judicial system, or simply a desire to save money. In attempting to determine the reasons for a defendant’s refusal of the assistance of counsel the trial judge is in a better position to discuss the defendant’s fears and apprehensions while attempting to mitigate them.
It is submitted that this Court must not disregard the long term interest of the accused in having his or her guilt or innocence fairly determined. The accused should be allowed to weigh the advantages of counsel. The trial judge must maintain a position as an independent in the Sixth Amendment balance between a defendant who unequivocally asserts a desire to act on his own behalf and society’s interest in ensuring the constitutional right to counsel is not denied under the guise of á valid waiver. Only when a defendant is competent in all respects should he be allowed to proceed pro se at the risk of conducting “his own defense ultimately to his own detriment.” Faretta, supra, at 422 U.S. 834, 95 S.Ct. 2541. Conversely, where the Court, after thorough examination, determines the defendant is not competent to proceed under a waiver, the court has an affirmative duty to appoint counsel. Id.
The further fact that the trial court in this case appointed standby counsel for Appellant may not successfully be argued as mitigating the gross constitutional error committed in this case. He was in trial on another case the date of Appellant’s trial. *905As Judge Kane so aptly summarized in the case of United States v. 1982 Audi, 577 F.Supp. 1004 (D.C.Colo.1983), the trial court’s actions herein demonstrate “such insouciance (that) suggests that we are fast approaching our own gotterdammerung.”
Appellant’s Brief, pp. 13-20.
Langley obviously was not the author of the foregoing passage. Although it was signed by him, it is written in the third person by another inmate at the Idaho State Correctional Institution whose identity is well known to all of us — not only on this Court, but in the Idaho United States District Court as well, where he is reputed to have also served well his clients. The brief is of excellent quality, and oral argument presented in support of it undoubtedly would have aided this Court considerably. The case obviously is deemed to be of considerable importance, or else three members of this Court would not have granted one of our few orders allowing review of a final decision of the Court of Appeals.
Pursuing that bewilderment, I am surprised, and startled, to find that the Court entered an order precluding both parties from oral argument, supposedly under the provisions of I.C. § 19-2803, a 1977 enactment of which I concede having had no previous knowledge, and which declares that a “defendant” does not have any right to appear at oral argument on appeal unless so ordered by the Supreme Court. The statute does not purport to address the right or plight of a “pro se defendant” or a “pro se defendant’s” legal adviser and brief writer. Not knowing yet what to make of this strange affair, at the least I find it passingly strange that such order was entered without my being afforded any vote.
As is usually so, there is more at stake here than just the fate of William Langley. As the brief written for him well points out, the district court did not at any time conduct a waiver hearing, and it did not conduct a competency hearing. Just one year ago, when this Court affirmed a summary dismissal of a convicted defendant’s pro se petition for post-conviction relief— the district court had entirely failed to inform him of his right to counsel as specifically required by statutory law, I.C. § 19-853 — my dissenting opinion also discussed constitutional aspects of that failure as discussed in the Faretta opinions, drawing the conclusion that both the Faretta majority and minority recognized that courts have a duty to protect a defendant’s Sixth Amendment rights:
Those who take the time to carefully read both the majority and minority opinions will discover that the two opinions differ only in their view of whether the state has the authority to force a defendant to accept the • assistance of trained legal counsel. The majority would allow appointment of counsel against a defendant’s wishes only after a hearing wherein it is determined that the defendant is not competent to conduct his own defense. The minority’s view differs only in its conclusion that a defendant should at all times have a court-appointed attorney in order to insure a fair system of criminal justice under the mandate of the Sixth Amendment.
Phillips v. State, 108 Idaho 405, 410, 700 P.2d 27, 32.
The Phillips situation was no different than here:
Moreover, the district court made no attempt to ascertain Phillips’ competency to understand the nature of the proceeding he was undertaking and the dangers involved. Unlike Faretta, supra, where' the trial court insisted on a hearing to determine competency, the record before us is clearly void of any attempt to provide a competency hearing for Phillips. Phillips, supra, at 411, 700 P.2d at 33.
In footnote 2, p. 31 of Phillips, I pointed out that:
At least on the average of two or three times a month this Court routinely, against my vote, grants motions of defense counsel to withdraw as counsel for appealing defendants. These motions are generally presented before assignments are made to the Court of Appeals. Hence, that court is probably more *906plagued than this Court with appeal briefs and arguments which are not of the quality to be of much aid in seeking a fair and just resolution. This Court’s failure to require that a competency hearing be conducted by a district court assuredly works the mischief of which Chief Justice Burger wrote in Faretta, infra:
“There is nothing desirable or useful in permitting every accused person, even the most uneducated and inexperienced, to insist upon conducting his own defense to criminal charges. Moreover, there is no constitutional basis for the Court’s holding, and it can only add to the problems of an already malfunctioning criminal justice system.”
Although, as perceived by the Faretta Court, there is a constitutional basis in Idaho, art 1, § 13, the problems alluded to by the Chief Justice will be greatly ameliorated by requiring the competency hearing which the Faretta Court declared to be mandated by Adams v. United States ex rel. McCann, [317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942)] infra. Moreover, some members of this Court might welcome the forewarning that pro se appellants in post-conviction cases would appear to have a constitutional right to present their own oral argument.
Phillips, supra, at 410 n. 2, 700 P.2d at 31-32 n. 2.
Since then, over my objection, the Court has allowed probably 30 criminal appellants to discharge their attorneys, or conversely, allowed their attorneys to withdraw, usually to end up going pro se. My objection, of course, has been that such waiver of the right to counsel is impermissible without first assigning a district court to ascertain competency of a defendant to represent himself. To no avail.
. In the language of the district judge.