ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Karen Freeman-Wilson
Public Defender of Indiana Attorney General of Indiana
Gregory L. Lewis Adam M. Dulik
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
In The
INDIANA SUPREME COURT
BARRY S. POYNTER, JR., )
Defendant-Appellant, ) Supreme Court No.
) 57S03-0010-CR-595
)
v. ) Court of Appeals No.
) 57A03-9911-CR-423
STATE OF INDIANA, )
Plaintiff-Appellee. )
________________________________________________
APPEAL FROM THE NOBLE SUPERIOR COURT
The Honorable Michael J. Kramer, Judge
Cause No. 57E01-9901-CM-007
________________________________________________
On Petition to Transfer
June 21, 2001
DICKSON, Justice
Following a bench trial at which the defendant was not represented by
counsel, he was convicted of battery on a police officer[1] and resisting
arrest.[2] He appealed his convictions claiming a violation of his right
to assistance of counsel as guaranteed by the Sixth and Fourteenth
Amendments to the United States Constitution and Article 1 Section 13 of
the Indiana Constitution. The Court of Appeals reversed. Poynter v.
State, 733 N.E.2d 500 (Ind. Ct. App. 2000). We granted the State's
petition for transfer which alleged that this decision is inconsistent with
other decisions of this Court and the Court of Appeals.
The defendant claims that when he was tried "without the benefit of
counsel, the record must reflect that the right to counsel was knowingly,
intelligently, and voluntarily waived and that [he] was fully advised
regarding the dangers and disadvantages of self-representation." Br. of
Defendant-Appellant at 5. The defendant states that he did not assert his
right to self-representation nor does the record reflect that he explicitly
waived his constitutional right to be represented by counsel. The
defendant maintains that the court had a duty to advise him of the
advantages of representation by counsel and the dangers of self-
representation. The lack of advisement, the defendant argues, negates any
finding of a voluntary, knowing, and intelligent waiver of his right to the
assistance of counsel. Because he was tried without counsel and because he
did not validly waive his right to counsel, the defendant asks for a new
trial.
The State concedes that "[w]hen a criminal defendant waives his right
to counsel and proceeds pro se, the record must reflect that the
defendant's waiver was knowing, intelligent, and voluntary." Br. of the
Appellee at 3. However, the State maintains that the defendant made such a
waiver through his conduct of repeatedly telling the court that he would
hire an attorney, that he had saved money to hire an attorney, but then
appearing on the day of trial without an attorney. The State contends that
the trial court had no duty to advise the defendant of the disadvantages of
appearing without counsel, because defendants who tell the court they are
hiring counsel do not need such warnings. Similarly, the State concludes
that on the day of trial, any warning would have been superfluous because
at that point it was too late to obtain counsel. Finally, the State
asserts that the trial court "admonished the defendant that he would have
to be prepared to proceed pro se if not represented by . . . his trial
date." Br. of the Appellee at 6.
At the defendant's initial hearing on January 5, 1999, the defendant
entered a plea of not guilty and his surety bond was posted. He was given
and signed a standard advisement of rights form that included the "right to
be represented by and to consult with a lawyer" and "the right to have the
court appoint an attorney to represent you at no cost if found to be
indigent." Record at 19. After informing the defendant of the charges
against him and the possible penalties should he be found guilty, the judge
asked the defendant if he had read and understood the rights on the form
and whether he was going to be hiring an attorney to represent him. The
defendant answered "Yes, Sir" to each of these questions. Record at 50.
The court scheduled a pretrial conference for February 22, 1999, and
advised the defendant "you're required to be back here at that time with
your attorney." Record at 50-51. On that date, however, the conference
was continued to April 19, 1999, by agreement of the parties "so that
defendant can obtain an attorney." Record at 4, 20. At the April pretrial
conference, the defendant appeared without an attorney. The hearing
consisted of the following colloquy:
The Court: This is in 9901-CM-007 and also 9709-CM-851. State of
Indiana versus Barry S. Poynter. Mr. Poynter, what's your address?
Mr. Poynter: I live with friends right now. I really ain't got a
place of my own.
The Court: Where's your – Do you have a place where you get mail?
Mr. Poynter: It ah, . . . . It's apartments.
The Court: In Kendallville or?
Mr. Poynter: In Kendallville, yeah (affirmative).
The Court: Is there an apartment number?
Mr. Poynter: I think it's just . . . .
The Court: That's where you're also staying with friends right now?
Mr. Poynter: Yes, Sir.
The Court: Are you going to be hiring an attorney to represent you in
these cases?
Mr. Poynter: Well I was, but I've been working like seven (7) days a
week, last week twelve (12) hours a day, and I've been really tired,
and I ain't been getting up on time and walking down there and talk to
them. I got some money saved up though for a lawyer, but I ain't got,
went down there and talked to one.
The Court: Well, I will set these cases for bench trial and fact-
finding hearing on June 21st at 10:45. If you decide that you want to
get up to go down and hire an attorney –
Mr. Poynter: I got to sometime.
The Court: (continuing) You can do that. Otherwise you need to be
here June 21st at 10:45, prepared for a trial in these cases. And a
trial on the probation violation.
Mr. Poynter: Okay.
The Court: So with or without an attorney you need to be prepared for
a trial on this date.
Mr. Poynter: I'll be here.
The Court: Okay.
Mr. Poynter: Thank you, Sir, for your time.
The Court: You're welcome.
Record at 52–53.
On the date set for his bench trial, June 21, 1999, the defendant
appeared in person, and the trial proceeded on the two class A misdemeanor
charges. Neither the trial judge nor the parties commented regarding the
absence of an attorney for the defendant. The State waived opening
statement and presented the testimony of two Kendallville police officers.
The defendant asked only one question of one of the witnesses. The
defendant's case consisted of his own seven sentence narrative testimony.
He presented no other witnesses. Following the State's closing argument,
the defendant responded with the following closing argument: "All I got to
say is that what they say is not true. I'm just one person just like the
rest of you." Record at 71. The trial court found the defendant guilty
and, after a brief sentencing hearing,[3] imposed consecutive sentences of
180 days each upon the convictions for battery of a police officer and
resisting arrest.
The rights embodied in the Sixth Amendment[4] protect the fundamental
right to a fair trial. Strickland v. Washington, 466 U.S. 668, 684, 104
S.Ct. 2052, 2063, 80 L.Ed.2d 674, 691 (1984). "Of all the rights that an
accused person has, the right to be represented by counsel is by far the
most pervasive for it affects his ability to assert any other rights he may
have." United States v. Cronic, 466 U.S. 648, 654, 104 S.Ct. 2039, 2044,
80 L.Ed.2d 657, 664 (1984). In recognition that the "average defendant
does not have the professional legal skills to protect himself" at trial,
it is required that a defendant's choice to appear without professional
counsel be made intelligently. Johnson v. Zerbst, 304 U.S. 458, 462-64, 58
S. Ct. 1019, 1022-23, 82 L.Ed. 1461, 1465-66 (1938).
When a defendant asserts the right to self-representation, the court
should tell the defendant of the "dangers and disadvantages of self-
representation." Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525,
2541, 45 L.Ed.2d 562, 581-82 (1975). There are no prescribed "talking
points" the court is required to include in its advisement to the
defendant; it need only come to a considered determination that the
defendant is making a voluntary, knowing, and intelligent waiver. Leonard
v. State, 579 N.E.2d 1294, 1296 (Ind. 1991). This determination must be
made with the awareness that the law indulges every reasonable presumption
against a waiver of this fundamental right. Zerbst, 304 U.S. at 464, 58
S.Ct. at 1023, 82 L.Ed. 1466.
Several courts have held, however, that a verbal waiver of the right
to counsel may not be necessary "so long as the . . . court has given a
defendant sufficient opportunity to retain the assistance of … counsel,
defendant's actions which have the effect of depriving himself of . . .
counsel will establish a knowing and intentional choice." United States v.
Hoskins, 243 F.3d 407, 410 (7th Cir. 2001)(finding defendant's conduct to
be sufficient to imply waiver, and that trial court's inquiry was
sufficient and provided explicit warning of consequences of continued
conduct); see also United States v. Irorere, 228 F.3d 816, 828 (7th Cir.
2000)(holding that defendant waived right to counsel by his conduct where
court appointed four separate lawyers all of whom either requested to
withdraw or were fired by the defendant); United States v. Kneeland, 148
F.3d 6, 11 (1st Cir. 1998)(finding valid waiver when defendant discharged
third appointed counsel after explicit warning that fourth counsel would
not be appointed); United States v. Bauer, 956 F.2d 693, 695 (7th Cir.
1992)(finding valid waiver when defendant failed to retain counsel after
court determined that defendant had financial ability to do so); United
States v. Weninger, 624 F.2d 163, 167 (10th Cir. 1980)(inferring waiver
from defendant's “stubborn refusal” to retain counsel despite repeated
urging by judge). In each of these waiver-by-conduct cases, however, the
courts recognized that, just like an express verbal waiver, an implied
waiver is not valid absent a finding under the totality of the
circumstances that the waiver is knowing and intelligent; and this finding
invariably included evidence of an admonition to the defendant on the
dangers and disadvantages of self-representation. See Hoskins, 243 F.3d at
411; Irorere, 228 F.3d at 828; Kneeland, 148 F.3d at 11; Bauer, 956 F.2d at
695; Weninger, 624 F.2d at 167.
This Court addressed the issue of a defendant's conduct as waiving
the right to counsel in Houston v. State, 553 N.E.2d 117 (Ind. 1990), and
Fitzgerald v. State, 254 Ind. 39, 257 N.E.2d 305 (Ind. 1970). Although
reaching an opposite result, Houston did not expressly overrule or even
discuss Fitzgerald. Our holdings in these two cases have been variously
interpreted by the Court of Appeals in Geiger v. State, 688 N.E.2d 1298,
1302 (Ind. Ct. App. 1997)(finding no valid waiver); Brickert v. State, 673
N.E.2d 493, 496 (Ind. Ct. App. 1996)(finding valid waiver), trans. denied;
Frederick v. State, 658 N.E.2d 941, 944 (Ind. Ct. App. 1995)(finding valid
waiver); Hagy v. State, 639 N.E.2d 693, 695 (Ind. Ct. App. 1994)(finding no
valid waiver); and Seniours v. State, 634 N.E.2d 803 (Ind. Ct. App.
1994)(finding no valid waiver).
The facts in Fitzgerald and Houston do not easily support their
differing outcomes. In both cases we found that the defendant's conduct
appeared to constitute determined effort to manipulate and obstruct the
trial process. See Fitzgerald, 254 Ind. at 47, 257 N.E.2d at 311; Houston,
553 N.E.2d at 118. The Fitzgerald court held that even though the trial
judge had "made every effort to treat appellant justly and to insure that
he was aware of his rights and obligations with regard to his upcoming
trial," it was error for the court to try the defendant without an attorney
without a clear waiver. Fitzgerald, 254 Ind. at 47-48, 257 N.E.2d at 311.
The Houston court determined that the trial court "clearly presented to
appellant his choices of proceeding with or without counsel and appellant
chose the latter," and thus his waiver was knowing and intelligent.
Houston, 553 N.E.2d at 118. In neither case was an admonition given. The
outcomes of these cases leave us with inconsistent precedent, and we take
this opportunity to clarify.
The United States Supreme Court stated that whether there has been an
intelligent waiver of the right to counsel depends on the "particular facts
and circumstances surrounding that case, including the background,
experience, and conduct of the accused." Zerbst, 304 U.S. at 464, 58 S.Ct.
at 1023, 82 L.Ed. at 1466. The Court went on to find that it is the
responsibility of the trial judge to determine whether there is an
intelligent and competent waiver and that it would be "fitting and
appropriate for that determination to appear on the record." Id. at 465,
58 S.Ct. at 1023, 82 L.Ed. at 1467. The Court elaborated on the
determination of valid waiver stating that if a defendant chooses to forego
the assistance of counsel and to represent himself, "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 eyes open." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d at
581-82 (internal quotes omitted). While the circumstances of Zerbst and
Faretta were different, the result was the same–the loss of the
"traditional benefits associated with the right to counsel." Faretta, 422
U.S. at 835, 95 S.Ct. at 2541, 45 L.Ed.2d 581. When these traditional
benefits are lost–by whatever reason–the loss is not constitutionally
acceptable absent a knowing and intelligent waiver. While the Supreme
Court has not elaborated with more specific considerations when determining
a knowing and intelligent waiver, the federal Circuit Courts of Appeals
have.[5] The Seventh Circuit Court of Appeals considers four factors:
"(1) the extent of the court's inquiry into the defendant's decision, (2)
other evidence in the record that establishes whether the defendant
understood the dangers and disadvantages of self-representation, (3) the
background and experience of the defendant, and (4) the context of the
defendant's decision to proceed pro se."[6] Hoskins, 243 F.3d at 410.
When applying these factors the court notes
The district court is in the best position to assess whether a
defendant has knowingly and intelligently waived counsel, and we will
most likely uphold the trial judge's decision to honor or deny the
defendant's request to represent himself where the judge has made the
proper inquiries and conveyed the proper information, and reaches a
reasoned conclusion about the defendant's understanding of his rights
and voluntariness of his decision.
Id. (internal quotes omitted). The appellate court will review the record
to evaluate the inquiry and court's reasoning in reaching its conclusion.
Id. We find this approach helpful in analyzing waiver of the Sixth
Amendment right to counsel under the facts and circumstances of waiver by
conduct cases.
Considering these factors within the circumstances of the present
case we find that the trial court, while it did determine that the
defendant was advised of his trial rights[7] and did tell the defendant of
the procedural outcome if he failed to secure counsel, did not at any time
advise the defendant on the dangers and disadvantages of self-
representation. This lack of any advisement weighs heavily against finding
a knowing and intelligent waiver. We can find nothing in the record that
either directly or inferentially supports the notion that the defendant may
have independently understood the dangers and disadvantages of self-
representation. The defendant had prior misdemeanors, but it is not known
whether these prior offenses resulted in trials or pleas or what sentences
were received. The defendant's background and experience—twenty-five years
old, ninth grade education, employed—tilts us neither towards finding or
not finding waiver. Finally, while there is evidence that the defendant
chose to work and sleep rather than take the time to hire an attorney, his
conduct did not result in gross delays or clearly appear to intend
manipulation of the process. The facts and circumstances of this
particular case do not warrant finding a knowing and intelligent waiver.
Trial courts need not necessarily appoint counsel for every defendant
who fails to implement an intention to employ counsel, nor need they
unreasonably indulge a defendant who repeatedly fails to cooperate with
appointed counsel, but the importance of the right to counsel cautions that
trial courts should at a minimum reasonably inform such defendants of the
dangers and disadvantages of proceeding without counsel. The appellate
court is to consider whether the defendant voluntarily, either verbally or
by conduct, chose self-representation, and whether in so choosing the
defendant made a knowing and intelligent waiver of the Sixth Amendment
right to counsel.
In the present case, the record does not provide us with the trial
court's conclusions regarding the voluntariness of defendant's decision or
understanding. The facts and circumstances presented do not establish that
the defendant voluntarily, knowingly, and intelligently waived his right to
counsel. The judgment is reversed and this cause is remanded for new
trial.
SHEPARD, C.J., and SULLIVAN, BOEHM, and RUCKER, JJ., concur.
-----------------------
[1] Ind.Code § 35-42-2-1(a)(1)(B).
[2] Ind.Code § 35-44-3-3.
[3] Simultaneously with the sentencing hearing, the trial court
conducted an initial hearing upon a separate charge of criminal mischief as
a class B misdemeanor. During the discussion of this separate charge, the
court asked the defendant if he would be hiring an attorney. When the
defendant answered "No, Sir," the court offered to appoint counsel, the
defendant accepted, and the court stated that it would appoint a public
defender. Record at 72-73.
[4] The defendant asserts that his rights were violated under
Articles 1 and 13 of the Indiana Constitution, but offers no argument
differentiating the right from that guaranteed by the Sixth Amendment, and
we therefore analyze only his federal claim.
[5] See, e.g., United States v. Akins, 243 F.3d 1199, 1202-03 (9th
Cir. 2001)(considering whether defendant was made aware of nature of
charges, possible penalties, dangers and disadvantages of self-
representation or in absence of specific inquiry examining particular facts
and circumstances such as background, experience, and conduct of
defendant); United States v. Proctor, 166 F.3d 396, 401-06 (1st Cir.
1999)(considering whether defendant, by delay or other conduct inconsistent
with continuation of representation, waives right); United States v.
Calabro, 467 F.2d 973, 985 (2nd Cir. 1972)(considering whether defendant
understood choice, advantages of having someone trained in the law, and had
capacity to make intelligent choice).
[6] Under this fourth factor, the court considers whether the
defendant's decision appears tactical or strategic in nature or seems
manipulative and intending delay, inferring knowledge of the system and
understanding of the risks and complexities of trial from more deliberative
conduct. See United States v. Sandles, 23 F.3d 1121, 1129 (7th Cir.
1994)(collecting cases).
[7] Because the Sixth Amendment right to counsel extends beyond the
Fifth Amendment right to counsel contemplated in Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Miranda advisement of
rights may not be enough to constitute a knowing and valid waiver in
settings outside of custodial interrogation. See Patterson v. Illinois,
487 U.S. 285, 288-89 108 S.Ct. 2389, 2398, 101 L.Ed.2d 261, 275-77
(1988)("We require a more searching or formal inquiry before permitting an
accused to waive his right to counsel at trial than we require for a Sixth
Amendment waiver during post-indictment questioning . . . .").