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ARKANSAS COURT OF APPEALS
DIVISION III
No. CR-15-620
OPINION DELIVERED NOVEMBER 2, 2016
ANTONIO WHITLOW APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
SEVENTH DIVISION
[NO. 60CR-12-3469]
V.
HONORABLE BARRY ALAN SIMS,
JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
ROBERT J. GLADWIN, Chief Judge
Appellant Antonio Whitlow appeals his convictions from the Pulaski County Circuit
Court on two counts of murder in the first degree and kidnapping. He argues that the trial
court incorrectly refused to allow him to represent himself pro se. Specifically, Whitlow
claims that the trial court’s reliance on his educational level and prior legal knowledge were
invalid bases for its refusal to allow him to appear pro se. We affirm.
I. Facts
Whitlow appeals his convictions for two counts of murder in the first degree (one
count in the presence of a child) and kidnapping. He was sentenced to sixty years for each
count of murder in the first degree, plus five years for kidnapping, and he received an
additional ten years for committing one count of murder in the first degree in the presence
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of a child. All sentences are to run consecutive to one another for a total of 135 years to be
served in the Arkansas Department of Correction.
On the eve of trial during an omnibus hearing, Whitlow addressed the trial court
and indicated that he no longer wanted his court-appointed attorney of record, Ronald L.
Davis, to represent him. Whitlow indicated that he intended to hire new counsel, Teresa
Bloodman, but stated that she would not assume his representation until counsel of record
withdrew. The trial court declined to relieve counsel without other counsel being present
to enter an appearance and indicated, “Okay, let’s have this hearing.”
Whitlow then expressed that if he was left with the choice between having counsel
of record continue to represent him or of representing himself, he preferred to represent
himself. Specifically, Whitlow asked the trial court, “Okay. So why come I can’t represent
my own self tomorrow?” After a short recess, the trial court placed Whitlow under oath,
and in direct response to the trial court’s asking Whitlow if he wanted to represent himself
the following day at trial, Whitlow responded, “If I can’t have [Teresa] Bloodman, yeah.”
After exhaustive questioning by the trial court, much of which involved irrelevant inquiries
about Whitlow’s legal abilities, the trial court refused to allow Whitlow to proceed pro se.
II. Standard of Review and Applicable Law
Our standard of review is whether the circuit court’s finding that a waiver of rights
was knowingly and intelligently made was clearly against the preponderance of the evidence.
Williams v. State, 2009 Ark. App. 684, 372 S.W.3d 358. Justice Stewart opined in Faretta v.
California, 422 U.S. 806 (1975), that a defendant in a state criminal trial has a constitutional
right to proceed without counsel when he voluntarily and intelligently elects to do so. Stated
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another way, the inquiry is whether a State may constitutionally hale a person into its
criminal courts and force a lawyer upon him, even when he wants to conduct his own
defense. See id.
The Sixth Amendment to the United States Constitution, made obligatory upon the
states by the Due Process Clause of the Fourteenth Amendment, guarantees an accused the
right to have assistance of counsel for his defense. Williams, supra. Article 2, section 10, of
the Arkansas Constitution specifically provides that an accused in a criminal prosecution has
the right to be heard by himself and his counsel. Id. It is also well established that an accused
has a constitutional right to represent himself and make a voluntary, knowing, and intelligent
waiver of his constitutional right to assistance of counsel in his defense. Id.
The constitutional right to counsel is a personal right and may be waived at the
pretrial stage or at trial. Walton v. State, 2012 Ark. 336, 423 S.W.3d 56. An accused is
entitled to represent himself provided that he knowingly and intelligently forgoes his right
to counsel and is able and willing to abide by the rules of procedure and courtroom protocol.
Jarrett v. State, 371 Ark. 100, 263 S.W.3d 538 (2007). Our supreme court has said that a
defendant in a criminal case may invoke his right to defend himself pro se provided that (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. Id.
III. Discussion
The following exchange, in relevant part, occurred between the trial court and
Whitlow:
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TRIAL COURT: Okay. Do you believe that you’re competent to represent yourself?
....
WHITLOW: Yes.
TRIAL COURT: What kind of education have you received?
WHITLOW: I received past the twelfth grade education.
TRIAL COURT: Can you read and write?
WHITLOW: Yes.
....
TRIAL COURT: Have you been through criminal trials before? Do you know how
to do a trial? Have you sat through a trial? Have you been a defendant in a trial?
WHITLOW: Yes.
....
WHITLOW: [B]een involved in a trial where I was a defendant. I have seen other
trials.
TRIAL COURT: When and where was that?
WHITLOW: Right off the top of my brain off the top of my mind it’s been several
as far as family members and friends that had different charges. So I’m pretty much
familiar.
TRIAL COURT: Pretty much familiar?
WHITLOW: Yes.
TRIAL COURT: Do you know how to—how to do a trial?
WHITLOW: Okay. Well, it’s a lot of things that you do in a trial, but yes.
....
TRIAL COURT: What do you mean by when you say—what do you mean by that
when you say you’ve had past twelfth grade?
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WHITLOW: No, I said I have twelfth grade.
TRIAL COURT: Did you graduate from high school?
WHITLOW: No, I got my GED.
TRIAL COURT: Okay. Okay. At this point I’m not convinced that you can competently
represent yourself or make a competent decision regarding representation. I’m not
allowing a waiver because of your lack of competence and your earlier disruptive
behavior. Also, I feel that you know nothing about a trial that is relevant. You don’t
know anything about—you have not demonstrated that you know anything about
criminal procedure. And I believe that if you represented yourself tomorrow would just
be a long drawn out guilty plea.
WHITLOW: What question did I not answer correctly?
TRIAL COURT: I’ve made my ruling. You’re not going to—
WHITLOW: Okay. Teresa Blood[man], she’s going to be here tomorrow. I’ll not ask—
TRIAL COURT: —start tomorrow. If she shows—let me just say if she shows up
tomorrow, Mr. Davis can leave and she can try the case. That’s fine with me.
WHITLOW: He’s going to leave anyway because he’s not representing me.
TRIAL COURT: No, he is.
WHITLOW: He is not representing me.
TRIAL COURT: He’s on the case.
WHITLOW: I can decide if I want to represent—he’s not going to represent me.
TRIAL COURT: Mr. Davis is the attorney of record in this case.
WHITLOW: He is not representing me. So what we’re doing right now is he’s giving
me my motion of discovery. So either I can—because I—I’m just now getting it today.
And with that I’m [going to] speak with Ms. Bloodman and handle it from there.
TRIAL COURT: Okay. Have a seat over there and we’re going to have this hearing on
this motion to suppress.
....
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TRIAL COURT: I am ruling that he does not have competence in legal civil—excuse
me, criminal procedure. You know him better than I. Has he had an Act III already? I
do not have the whole docket sheet in front of me.
Whitlow claims that his request to waive the right to counsel was unequivocal. He
indicated to the trial court initially that he wanted to hire attorney Teresa Bloodman, but,
because she was not present at the hearing and had not filed an entry of appearance, the trial
court did not enter her as the new attorney of record. When pressed on the issue of whether
he wanted to represent himself, Whitlow clearly indicated he wanted to represent himself
rather than have current counsel of record represent him.
We acknowledge the merit in Whitlow’s argument that the trial court incorrectly
based the majority of its inquiry on his knowledge of the legal system and his level of
education. The trial court, just as in Barnes v. State, 258 Ark. 565, 528 S.W.2d 370 (1975),
pointed out his lack of knowledge of procedures and rules and the hazards attendant upon
his choice. Just as in Barnes, Whitlow submits that his request was not refused because it was
not knowingly and intelligently made; rather, it was refused in an effort to protect him from
his ignorance of the rules of evidence and the procedures in presenting evidence.
As to whether Whitlow had engaged in conduct that would prevent the fair and
orderly exposition of the issues, he urges that the record is void of any indication that he
disrupted of the trial-court proceedings. He acknowledges that there was an instance in
which the trial court was questioning him, and Whitlow interrupted in an attempt to
continue to address the trial court. The trial court abruptly indicated—apparently to court
personnel—“take him back there, you all, take him back there to that little cell and keep
him there if he’s going to be disruptive.” Whitlow maintains that there is no indication that
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he was actually removed from the courtroom, and he questions whether the trial court was
merely instructing court personnel what to do if he became disruptive. He submits that the
record is void of any admonishments given to him regarding any disruptive behavior
attributable to him.
We affirm the trial court’s ruling on Whitlow’s only claim of supposed error—that
he was denied the right to represent himself—because he never unequivocally requested to
represent himself. Rather, he consistently stated that he wanted someone other than his
current court-appointed attorney, Ronald L. Davis, to represent him at trial.
In Faretta, supra, the United States Supreme Court held that the accused generally
has a right to defend himself under the Sixth Amendment, because it is the accused who
will suffer the consequences if the defense fails. Id. This right is not, however, without some
outer limit, and Faretta made clear that, although a defendant need not have the skill and
experience of a lawyer in order to competently and intelligently choose self-representation,
he “should 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 open
eyes.” Id. at 835.
Where, as here, Whitlow sought to have another attorney represent him, a request
to proceed pro se was not unequivocal, and the analysis in Faretta and its progeny does not
apply. See Morgan v. State, 359 Ark. 168, 195 S.W.3d 889 (2004) (holding that a defendant’s
right to counsel is not absolute, and he may not use his right to counsel to frustrate the
inherent power of the court to command the orderly, efficient, and effective administration
of justice). We have held that “[t]he right to counsel may not be manipulated or subverted
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to obstruct the orderly procedures of the court, or to interfere with the fair, efficient, and
effective administration of justice, particularly when a change of counsel is sought on the
eve of trial, primarily for the purpose of delay, and without making any effort to obtain
substitute counsel.” Liggins v. State, 2015 Ark. App. 321, at 6, 463 S.W.3d 331, 335–36.
Mr. Davis first appeared as Whitlow’s attorney at a hearing on June 4, 2014. On
August 28, 2014, the trial court scheduled a jury trial to begin on March 31, 2015. At a
hearing held March 4, 2015, Whitlow told the trial court that he was “filling out a
grievance” against Mr. Davis with the Arkansas Supreme Court.
The record indicates that Mr. Davis explained to Whitlow that if he had a problem
with him, Whitlow needed to get another lawyer. Whitlow then said he was “in the process
of hiring another attorney.” The trial court told Whitlow to let it know if he hired someone
else.
At the hearing on March 30, 2015, the day before Whitlow’s jury trial began, he
informed the trial court that he wanted Mr. Davis to withdraw because “no other attorney
will listen to my case because they say it’s against the rules because I have one.” He also said
he had filed a complaint against the trial court with the Judicial Discipline and Disability
Commission for holding the hearing that day even though Whitlow was trying to change
attorneys. The trial court asked Whitlow if he wanted to fire Mr. Davis and get a new
attorney before the trial was to begin the next day. Whitlow replied that he could not get
one “before tomorrow.” The trial court informed Whitlow that the trial would begin the
next day. During the discussion, this exchange occurred:
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TRIAL COURT: So you want to try—you want to defend yourself tomorrow?
WHITLOW: No, I’m hiring another attorney.
TRIAL COURT: You’re going to have them by tomorrow?
WHITLOW: Well, no other—first, we would have to get rid of this procedure. Then
another attorney will listen to my case.
Whitlow claimed that he had never “received my motion of discovery.” The trial
court told him that his lawyer had taken care of discovery. Whitlow asked how the trial
could be held “when I do have a right to choose the attorney that I want to choose.” The
trial court told him he was “wrong” about that, reminding Whitlow that the trial had been
set since August 28, 2014. The trial court explained that he could hire anyone he wanted as
long as it occurred by the next day.
After a break in the hearing, Mr. Davis informed the trial court that Whitlow had
told him that he wanted to represent himself and that he may have another lawyer in court
for trial the next day. The trial court asked Mr. Davis about the status of discovery. Mr.
Davis stated that he had received the complete discovery file and had gone through it with
Whitlow. The trial court then put Whitlow under oath, and the following exchange
occurred:
TRIAL COURT: You have indicated that [you] wish to proceed without a lawyer. Is
that true?
WHITLOW: No. I had said that I will have one tomorrow. He’s saying that.
The trial court reiterated to Whitlow that the trial date had been set since the
previous August and that he had “plenty of opportunities” to have Mr. Davis withdraw.
The trial court then asked Whitlow if he understood that he was facing a possible sentence
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of life imprisonment without parole. Whitlow replied, “I’m not going to represent myself
tomorrow.”
We hold that Whitlow did not pass the initial threshold of unequivocally stating that
he wanted to represent himself, telling the trial court instead that Ms. Bloodman would be
his new attorney. When asked why Ms. Bloodman had not informed the trial court that she
was going to represent him, Whitlow explained that she told him it was “against the rules”
for her to talk to him while he was represented by other counsel.
Mr. Davis told the trial court that when he talked to Whitlow after the earlier
hearing, Whitlow told him that he did not want Mr. Davis to represent him. Mr. Davis
confirmed that he and Whitlow had met to prepare for trial as recently as two days earlier.
When the trial court told Whitlow that they would go to trial the next day with Mr. Davis
representing him, Whitlow responded, “[n]o,” and insisted that he had been talking with
Ms. Bloodman.
The trial court recounted the history of the case and noted that there had been
neither a motion by Mr. Davis to withdraw nor a motion to continue the trial date filed in
the case. This colloquy then occurred:
TRIAL COURT: Do you wish to represent yourself tomorrow?
WHITLOW: If I can’t get [Ms.] Bloodman, yeah.
TRIAL COURT: I’m asking you for a yes or no answer. Do you wish to represent
yourself tomorrow?
WHITLOW: I wish to get [Ms.] Bloodman, but she will come. But if I have to choose
between Ron Davis or myself, I choose myself. But I’m telling you, I can get in
contact with her.
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We recognize that the trial court conducted an exhaustive inquiry before ruling that
Whitlow could not competently represent himself because he did not know trial procedure
and previously had been disruptive. Whitlow then announced that Ms. Bloodman would
be there the next morning. The trial court told Whitlow that if Ms. Bloodman appeared,
she could try the case, and Mr. Davis could leave. Whitlow insisted that Mr. Davis would
not represent him, but the trial court told him that Mr. Davis would remain on the case.
Whitlow replied that he would speak with Ms. Bloodman and “handle it from there.”
It is undisputed that Ms. Bloodman did not appear for trial the next day and that Mr.
Davis represented Whitlow throughout the trial and on appeal. Whitlow never commented
further about wanting Ms. Bloodman to represent him, and he never asked that Mr. Davis
be relieved or that he be allowed to represent himself. Instead of making an unequivocal
request to represent himself, Whitlow said he wanted another attorney, specifically, Ms.
Bloodman, to represent him at trial. His statements about representing himself were couched
more in terms of preferring to do so rather than having Mr. Davis represent him. Up until
the end of the discussion at the hearing the day before trial, Whitlow continued to assert
that he wanted Ms. Bloodman to represent him.
In Jarrett, 371 Ark. at 104–05, 263 S.W.3d at 542, our supreme court held that “a
request to proceed pro se is not an unequivocal request if it is an attempt on the part of the
defendant to have another attorney appointed.” Jarrett had expressed his “extreme
displeasure” with his attorney, but his displeasure “did not amount to an unequivocal request
to take responsibility, be held accountable, and proceed pro se.” Id. at 105, 263 S.W.3d at
542. The same analysis applies here; accordingly, we affirm.
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Affirmed.
ABRAMSON and WHITEAKER, JJ., agree.
Ronald L. Davis, Jr. Law Firm, PLLC, by: Ronald L. Davis, Jr., for appellant.
Leslie Rutledge, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.
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