State v. Small

IN THE SUPREME COURT OF TENNESSEE
FILED
AT KNOXVILLE
April 12, 1999

Cecil Crowson, Jr.
STATE OF TENNESSEE ) FOR PUBLICATION
Appellate Court Clerk
)
Plaintiff-Appellee ) FILED: APRIL 12, 1999
)
v. ) KNOX COUNTY
)
GERALD PATRICK SMALL ) HON. MARY BETH LEIBOWITZ,
) JUDGE
Defendant-Appellant )
) NO. 03-S-01-9804-CR-00038

For Appellant: For Appellee:

KENNETH F. IRVINE, JR. JOHN KNOX WALKUP
Knoxville, TN Attorney General and Reporter

MICHAEL E. MOORE
Solicitor General

ELIZABETH T. RYAN
Assistant Attorney General
Nashville, TN

RANDALL E. NICHOLS
District Attorney General

WILLIAM J. BLEVINS
Assistant District Attorney General
Knoxville, TN

OPINION

AFFIRMED BIRCH, J.
 We granted permission to appeal in this case in order to

determine whether an accused who has intelligently and voluntarily

waived the right to counsel and chosen to proceed pro se is

constitutionally entitled to the assistance of advisory counsel.1

We conclude that there is no such constitutional entitlement and

that the appointment of such advisory counsel is a matter entirely

within the discretion of the trial court. Here, the trial court

declined to appoint advisory counsel. For the reasons below

stated, we find the trial court’s decision to be amply supported by

the record and affirm the judgment of the Court of Criminal

Appeals.

Gerald Patrick Small was indicted in 1993 on five counts

of theft of property of a value over $10,000,2 one count of theft

of property of a value over $1,000, one count of attempted theft,

and one count of securities fraud. A public defender was appointed

to represent him. In March 1995, however, the defendant filed a

“Motion to Change Counsel,” in which he requested permission to

1
The parties use the term “elbow counsel.” We interpret “elbow
counsel” to mean an attorney who functions in a purely advisory
role, without actively participating in the trial. A pro se
defendant who is permitted such counsel may consult counsel for
guidance and advice, but otherwise handles the defense of the case
on his or her own. Because we find the term “advisory counsel” to
more accurately describe the role such an attorney plays, we will
use that term in place of “elbow counsel.” Another term commonly
used in other jurisdictions is “standby counsel.” We perceive
“standby counsel” to mean counsel who is not actively participating
in the trial but is available to step in and take over as counsel
if called upon to do so by either the defendant or the trial court.
We recognize that in the past, appellate courts have used the terms
“elbow counsel,” “advisory counsel,” and “standby counsel”
interchangeably. We now take the opportunity to clarify these
terms for Tennessee.
2
One of these counts was abandoned. The State requested an
order of nolle prosequi prior to trial in one count.

2
represent himself, albeit with the aid of appointed counsel as

advisory counsel. After considering the motion, the trial court

concluded that it could either allow the defendant to proceed pro

se or permit representation by appointed counsel who would handle

all aspects of the trial, but that it could not allow both.

Accordingly, the court relieved the public defender and permitted

the defendant to conduct his own defense.

A synopsis of the convicting evidence reveals that the

defendant solicited persons to invest into a company known as

Patrick Industries, Inc. The defendant represented to prospective

investors that Patrick Industries was a manufacturer and

distributor of toothpaste and other personal hygiene products. In

the newspaper advertisement soliciting investors, the defendant

represented that the return on the investments could be as

favorable as twenty to one. Two persons each invested $25,000.

Three persons invested amounts of $5,000, $6,000, and $12,500,

respectively. In return for their monies, each person received

shares of stock in Patrick Industries.3

The bank records for Patrick Industries revealed that

over fifty percent of the solicited funds were either spent on

personal expenses for the defendant and his family or withdrawn

from the company account by checks made out to “cash.” Other funds

were apparently spent on construction of an operations plant and

3
Investors also received a copy of an invoice reflecting their
ownership interest in a certain number of cases of toothpaste. The
investors never planned to take actual possession of the
toothpaste; instead, they were led to believe they would receive
the profits from the sale of the toothpaste.

3
other business expenses. Patrick Industries, however, never

brought any product to market. The State presented additional

evidence that the defendant had been investigated in the past for

similar schemes. The jury convicted the defendant of five counts

of theft and one count of fraud. The trial court imposed a Range

I effective sentence of ten years.

The defendant appealed his convictions and sentences,

arguing that the trial court had improperly denied him the

assistance of advisory counsel. The Court of Criminal Appeals

affirmed the defendant’s convictions and sentences, concluding that

there was no constitutional right to such counsel and that the

trial court did not abuse its discretion by failing to appoint

advisory counsel.

Whether a pro se accused is entitled to advisory counsel

is a question of law, which we review de novo. See State v. Davis,

940 S.W.2d 558, 561 (Tenn. 1997).

Both the United States and Tennessee Constitutions

guarantee the right of an accused to self-representation or to

representation by counsel. U.S. Const. amend. VI; Tenn. Const.

art. I, § 9; Faretta v. California, 422 U.S. 806, 807, 95 S. Ct.

2525, 2527, 45 L. Ed. 2d 562, 566 (1975); State v. Northington, 667

S.W.2d 57, 60 (Tenn. 1984). The right to represent oneself,

however, should be granted only after a determination by the trial

court that the defendant is both knowingly and intelligently

waiving the valuable right to assistance of counsel. Tenn. R.

4
Crim. P. 44(a); Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S. Ct.

1019, 1023, 82 L. Ed. 1461, 1466-67 (1938); State v. Burkhart,

541 S.W.2d 365, 368 (Tenn. 1976). In fact, in cases where an

intelligent, knowing waiver was not adequately shown in the record,

the defendants' convictions have been reversed. See State v.

Coleman, 519 S.W.2d 581 (Tenn. 1975).

The right to self-representation and the right to counsel

have been construed to be alternative ones; “[t]hat is, one has a

right either to be represented by counsel or to represent himself,

to conduct his own defense.” State v. Melson, 638 S.W.2d 342, 359

(Tenn. 1982). “[W]aiver of one right constitutes a correlative

assertion of the other. . . . [A] criminal defendant cannot

logically waive or assert both rights.” Burkhart, 541 S.W.2d at

368 (quoting United States v. Conder, 423 F.2d 904, 908 (6th Cir.

1970)). One who knowingly and intelligently waives the right to

counsel cannot later allege the deprivation of effective assistance

of counsel. See State v. Goodwin, 909 S.W.2d 35, 41-42, 45 (Tenn.

Crim. App. 1995).

This Court has previously addressed this issue in the

context of “hybrid representation,” that is, where both the

defendant and counsel were permitted to participate in the defense.

In Burkhart, we stated that such hybrid representation should be

permitted “sparingly and with caution and only after a judicial

determination that the defendant (1) is not seeking to disrupt

orderly trial procedure and (2) that the defendant has the

intelligence, ability and general competence to participate in his

5
own defense.” Burkhart, 541 S.W.2d at 371. In discussing hybrid

representation, we mentioned, in passing, the same variation on the

issue of representation which is presented here: that is,

permitting a defendant to conduct his or her own defense with an

attorney present in an advisory capacity.4 Id.

Subsequently, in Melson, we restated that “[t]he right of

a defendant to participate in his own defense is an alternative

one. . . . It is entirely a matter of grace for a defendant to

represent himself and have counsel, and such privilege should be

granted by the trial court only in exceptional circumstances.”

Melson, 638 S.W.2d at 359.

Other jurisdictions which have addressed the concept of

advisory counsel almost universally agree that there is no federal

or state constitutional right to such counsel once a defendant has

knowingly and intelligently waived the right to counsel. Rather,

the decision whether to appoint advisory counsel is within the

discretion of the trial court.5

4
The term used in the case was “elbow counsel.”
5
See United States v. Kneeland, 148 F.3d 6, 13 (1st Cir. 1998);
United States v. Einfeldt, 138 F.3d 373, 378 (8th Cir. 1998), cert.
denied, 119 S. Ct. 126 (1998); United States v. Mikolajczyk, 137
F.3d 237, 246 (5th Cir. 1998); United States v. Singleton, 107 F.3d
1091, 1100-03 (4th Cir. 1997), cert. denied, 118 S. Ct. 84 (1997);
United States v. Mosely, 810 F.2d 93, 97-98 (6th Cir. 1987); People
v. Crandell, 760 P.2d 423, 436 (Cal. 1988); Reliford v. People, 579
P.2d 1145, 1148 (Colo. 1978); State v. Oliphant, 702 A.2d 1206,
1212 (Conn. App. Ct. 1997); Eady v. State, 695 So. 2d 752, 755-56
(Fla. Dist. Ct. App. 1997); Reviere v. State, 498 S.E.2d 332, 335
(Ga. Ct. App. 1998); People v. Redd, 670 N.E.2d 583, 601 (Ill.
1996); Parren v. State, 523 A.2d 597, 599 (Md. 1987), cited with
approval in Harris v. State, 687 A.2d 970, 973-74 (Md. 1997);
People v. Dennany, 519 N.W.2d 128, 141 (Mich. 1994); State v.
Wilson, 564 N.W.2d 241, 253 (Neb. 1997); Harris v. State, 942 P.2d

6
 We noted in State v. Franklin, 714 S.W.2d 252 (Tenn.

1986) (also a hybrid representation case), that

[o]ne of the most fundamental
responsibilities of a trial court in
a criminal case is to assure that a
fair trial is conducted.
Generally, the trial court, which
has presided over the proceedings,
is in the best position to make
determinations regarding how to
achieve this primary purpose, and
absent some abuse of the trial
court's discretion in marshalling
the trial, an appellate court should
not redetermine in retrospect and on
a cold record how the case could
have been better tried.

Id. at 258 (citation omitted).

The overall objective of every criminal trial is that the

defendant receive a fair trial. The trial court, whose

responsibility it is to ensure the orderly and fair progression of

the proceedings, is in an excellent position to determine the legal

assistance necessary to ensure a defendant’s right to a fair trial.

151, 155 (Nev. 1997); People v. Mirenda, 442 N.E.2d 49, 51 (N.Y.
1982); State v. Cummings, 546 N.W.2d 406, 419 (Wis. 1996); see also
Wake v. Barker, 514 S.W.2d 692, 696-97 (Ky. 1974)(holding that
trial courts possess the power to appoint standby counsel); N.C.
Gen. Stat. § 15A-1243 (1997)(“When a defendant has elected to
proceed without the assistance of counsel, the trial judge in his
discretion may appoint standby counsel to assist the defendant when
called upon and to bring to the judge's attention matters favorable
to the defendant upon which the judge should rule upon his own
motion.”). But see Commonwealth v. Africa, 353 A.2d 855, 864 (Pa.
1976)(“Whenever a defendant seeks to represent himself, and
particularly when he may be disruptive, standby counsel should be
appointed.”); State v. Sanders, 237 S.E.2d 53, 54 (S.C.
1977)(holding that a defendant has a right to counsel even if he
chooses to represent himself), cited with approval in State v.
Brewer, 492 S.E.2d 97, 99 (S.C. 1997). See generally John S.
Herbrand, Annotation, Accused’s Right to Represent Himself in State
Criminal Proceeding - Modern State Cases, 98 A.L.R.3d 13, § 24
(1980 & Supp. 1998).

7
This determination will depend, in part, upon the nature and

gravity of the charge, the factual and legal complexity of the

proceedings, and the intelligence and legal acumen of the

defendant. See People v. Gibson, 556 N.E.2d 226, 233 (Ill. 1990).

Thus, we hold that the decision whether to appoint advisory counsel

to assist a pro se defendant rests entirely within the trial

court’s discretion. The trial court’s decision on this issue will

not be overturned in the absence of a clear abuse of that

discretion.

In the case before us, the record amply demonstrates that

the defendant was clearly advised of the pitfalls of self-

representation. Even though he was informed prior to trial that he

would not be furnished advisory counsel, he persisted in his

request that he be allowed to represent himself.

Using the criteria established in United States v.

McDowell, 814 F.2d 245 (6th Cir. 1987), the trial court determined

that the defendant was aware of the nature of the charges against

him and the possible sentence he was facing. He appeared to be

intelligent and articulate. He informed the court of his

familiarity with the rules of evidence and criminal procedure.

Ultimately, he satisfied the trial court that his waiver of his

right to counsel was a knowing and intelligent one.

The trial court indicated that it would have preferred to

appoint advisory counsel to assist the defendant throughout the

course of the trial. But believing that it lacked the authority,

8
it declined to appoint such counsel. Our analysis, however, leads

us to conclude that the trial court does, indeed, have such

authority. Even though the trial court did not believe it had such

authority, the trial court’s decision to deny advisory counsel in

this case is amply supported by the record.

In conclusion, we hold that there is no constitutional

right to the appointment of advisory counsel where a defendant has

knowingly and intelligently waived the right to counsel. Under the

appropriate circumstances, however, the trial court has the

discretion to appoint advisory counsel. The trial court’s decision

in this regard will not be overturned absent an abuse of that

discretion. Accordingly, the judgment of the Court of Criminal

Appeals is affirmed. Costs are taxed against the defendant.

______________________________
ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.
Drowota, Holder, Barker, JJ.

9