Defendant Smith was convicted of criminal sale of a controlled substance. During his trial, Defendant voiced dissatisfaction with his appointed defense counsel, and repeatedly asked for the appointment of new counsel. Defendant also maintained that he could not represent himself pro se. The court denied Defendant's requests for new counsel. Defense counsel subsequently asked to be discharged after Defendant allegedly threatened him during a recess. The court, after a brief exchange with Defendant, gave him a choice either to apologize to defense counsel and have him continue representing him, or to proceed pro se. Based on Defendant's response, the court relieved defense counsel from his assignment. Defendant himself than continued to cross-examine the police officer on the stand, with the former defense counsel "serving as a legal advisor."
Whether the trial court made a sufficiently "searching inquiry" in order to ascertain whether defendant understood the risks of foregoing the right to counsel.
No. The trial court failed to discover whether defendant understood the consequences of foregoing counsel, and failed to give defendant the requisite information on proceeding pro se.
A waiver of the right to counsel required the court to conduct a "searching inquiry" into the defendant's intent and ability to proceed pro se. See People v. Slaughter, 78 N.Y.2d 485 (N.Y. 1991); People v. Sawyer, 57 N.Y.2d 12 (1982). This inquiry was required to alert the defendant to possible dangers and disadvantages of proceeding pro se. Furthermore, the court was required to engage in a dialogue with the defendant which would both test the defendant's understanding of risks associated with self-representation, and provide a reasonable basis for appellate review. See Sawyer, 57 N.Y.2d at 21. After such dialogue, the court was required to be "reasonably certain" that the defendant appreciated the consequences of waiving the fundamental right to counsel. See Slaughter, 78 N.Y.2d at 491. If the court failed to attain reasonable certainty that the defendant understood the consequences of the waiver, such waiver was not satisfactorily completed. The Supreme Court has articulated that a state court may not compel a defendant to be represented by counsel; however "in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits." Faretta v California, 422 U.S. 806 (1975). As the Faretta court indicated, "[a]lthough a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to 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 eyes open.' " Id.
The Smith trial court did not engage in an extended inquiry as to Defendant's choice to proceed without assigned counsel, nor did it advise defendant of the risks of proceeding pro se. In order to discharge Defendant's counsel, the trial court was required to initiate an inquiry to ensure Defendant's implied waiver was unequivocal, voluntary and intelligent. See People v. Slaughter 78 N.Y.2d 485 (N.Y. 1991). In People v. McIntyre, 36 N.Y.2d 10 (N.Y. 1974), the Court of Appeals held that a court must make an inquiry into a defendant's decision to waive counsel, since such waiver is only effective where the decision was intelligent and competent. The trial court's actions, advising Defendant that representation by counsel was in his best interest and giving him a choice between retaining counsel or proceeding pro se, failed to satisfy the requirements of searching inquiry. After Smith, an effective waiver of the right to counsel requires the court to engage in a searching inquiry into defendant's choice, even where such waiver is implied or the defendant expresses his inability to represent himself. Smith emphasized that the court must also convey to the defendant the disadvantages of proceeding pro se.
Finally, after Smith, it appears that the conduct of Defendant at trial is certain to fall short of the egregious behavior required to allow a trial court to conclude that a defendant has forfeited his right to counsel. See Smith ("It is not necessary to, in this case, address forfeiture concepts, urged by the dissenting opinion at the Appellate Division. While egregious conduct by defendants can lead to a deemed forfeiture of the fundamental right to counsel, that analysis is not pertinent to this case.").
The Smith court fails to provide an explicit description of the threshold age, level of education, type of occupation, or degree of previous exposure to legal procedures necessary to conclude that a defendant knowingly and intelligently decided to proceed pro se. While the court states that these factors contribute to the judge's "searching inquiry," we are left with a very subjective scheme that makes the preservation of convictions in pro se cases unclear. See People v. Vivenzio, 465 N.Y.S.2d 350 (N.Y. 1983) (holding that a twenty year old, unskilled, unemployed, high school educated individual who was receiving public assistance and had no prior courtroom experience was able to knowledgeably opt to proceed pro se); People v. Johnson, 551 N.Y.S.2d 591 (N.Y. 1990) (holding that a thirty-two year old, with one year of college education, who previously represented himself, had knowingly decided to act pro se).
Additionally, the court's decision in Smith fails to illuminate the forfeiture issue raised by the dissenting opinion in the Appellate Division opinion. In People v. McIntyre, 341 N.Y.S.2d 943 (N.Y. 1974), the court concluded that forfeiture occurs when one loses the right to act pro se by "engaging in disruptive or obstreperous conduct...calculated to undermine, upset, or unreasonably delay the progress of the trial." However, by dismissing the argument as inapplicable to the case at hand, the court gives little indication what conduct would rise to the level deemed "egregious" enough to constitute forfeiture.
The Supreme Court has directly considered the requirements for valid waiver of a criminal defendant's Sixth Amendment right to counsel. In Faretta v. California, 422 U.S. 806, 835 (1975), the majority stated that courts must allow a defendant to proceed pro se where his decision to do so is knowing and intelligent. In Von Moltke v. Gillies, 332 U.S. 708, 723 (1948), the Supreme Court indicated that a trial court must not allow a defendant to proceed pro se until the court verifies that the waiver of the right to counsel is intelligent and competent.
Lower courts vary in the amount of inquiry required for a valid waiver of the right to counsel. See People v. Dennany, 519 N.W.2d 128 (Mich. 1994). At the more thorough end of the spectrum is Justice Black's statement in Von Moltke. "To be valid," Justice Black wrote, "such waiver must be made with an apprehension of the nature of 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." Von Moltke, 332 U.S. at 724. New Jersey, for example, requires the court to make certain, by direct inquiry on the record, that the defendant is made aware of the same issues suggested in Von Moltke. See State v. Kordower 229 N.J. Super. 566 (1989). The United States Court of Appeals for the Sixth Circuit requires trial judges to use a standardized inquiry contained in 1 Bench Book for United States District Judges (3d ed.), §1.02-2 to §1.02-5. See United States v. McDowell, 814 F.2d 245 (6th Cir.), cert. denied 484 U.S. 980 (1987).
Several lower courts have resisted the formulaic flavor of Von Moltke, but nevertheless tend to apply most of its substance. The United States Court of Appeals for the District of Columbia stated in Hsu v. US that "The courts have perceived [Justice Black's list in Von Moltke] as a catalog of concerns for trial court consideration, not as a prescribed litany of questions and answers leading to mandatory reversal in the event that one or more is omitted." Hsu v. U. S., 392 A.2d 972, 983 (D.C. 1978). Nevertheless, the D.C. court said the inquiry must be "virtually complete" absent "a compelling case of circumstantial evidence that the pro se defendant knew what he or she was doing." Id.
The United States Court of Appeals for the Ninth Circuit has stated that "[w]hile no particular form of interrogation is necessary, the court must assure itself that the defendant understands the charges and the manner in which an attorney can be of assistance." United States v. Gillings, 568 F.2d 1307, 1308-1309 (9th Cir. 1978).
The United States Court of Appeals for the Third Circuit does not require a detailed listing of advice, but does require a "searching inquiry" to satisfy the trial judge that the defendant's waiver was understanding and voluntary. See United States v. Welty, 674 F.2d 185, 189 (3rd Cir. 1982).