Lewis Aaron Cook v The State Of Oklahoma

M-2001-174

Filed: Mar. 26, 2002

Not for publication

Prevailing Party: Lewis Aaron Cook

Summary

Lewis Aaron Cook appealed his conviction for unlawful possession of drug paraphernalia. Conviction and sentence were reversed, and a new trial was ordered. Judges Lumpkin and Lile voted to affirm, while Judges Johnson, Chapel, and Strubhar dissented.

Decision

IT IS THEREFORE THE ORDER OF THIS COURT that Appellant's Judgment and Sentence in Tulsa County District Court Case No. CM-2000-3012 is REVERSED AND REMANDED FOR NEW TRIAL. The Clerk of this Court is directed to forward a copy of this Order to the Honorable Todd Singer and the Honorable Millie Otey, as well as to the Honorable Allen Klein, the judge who presided over Appellant's trial. IT IS SO ORDERED.

Issues

• Was there an error in changing the method used to select the jury during jury selection?
• Did the trial court deny Appellant's Sixth Amendment rights by not allowing him to represent himself pro se?
• Did the trial court deny Appellant's Sixth Amendment rights by forcing him to choose between his right to bond or hiring private counsel and not allowing him to discharge his privately retained counsel?
• Did the trial court deny Appellant his rights by failing to rule on his application to proceed pro se on appeal?
• Was the trial evidence insufficient to prove beyond a reasonable doubt that Appellant possessed drug paraphernalia?
• Did the trial court err in failing to instruct the jury on the limited purpose of impeachment evidence by prior convictions?

Findings

• the court erred in changing the method used to select the jury in the middle of jury selection
• the court erred by denying Appellant's Sixth Amendment rights by not allowing him to represent himself pro se
• the court erred by forcing Appellant to choose between his constitutional right to bond or hiring private counsel and not allowing him to discharge his privately retained counsel
• the court erred by failing to rule on Appellant's application to proceed pro se on appeal
• the evidence was sufficient to prove beyond a reasonable doubt that Mr. Cook possessed drug paraphernalia
• the court erred in failing to instruct the jury on the limited purpose of impeachment evidence by prior convictions

M-2001-174

Mar. 26, 2002

Lewis Aaron Cook

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

Following a jury trial in the District Court of Tulsa County, Case No. CM-2000-3012, before the Honorable Allen Klein, Special Judge, Appellant was found guilty of Unlawful Possession of Paraphernalia (crack pipe). Pursuant to the jury’s recommendation, Judge Klein sentenced Appellant to one year in jail and a $1,000.00 fine, the maximum punishment allowed for this offense. From his Judgment and Sentence, Appellant has perfected this appeal.

The appeal was regularly assigned to the Court’s Accelerated Docket under Section XI of the Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001). Oral argument was held on February 28, 2002, and the Court duly considered Appellant’s six propositions of error raised upon appeal:

**Proposition I**
The trial court erred in changing the method used to select the jury in the middle of jury selection by allowing the State to waive a peremptory challenge and choosing the panel himself.

**Proposition II**
The trial court denied Appellant’s Sixth Amendment rights by not allowing Appellant to represent himself pro se.

**Proposition III**
The trial court denied Appellant’s Sixth Amendment rights by forcing him to choose between his constitutional right to bond or hiring private counsel and not allowing him to discharge his privately retained counsel.

**Proposition IV**
The trial court denied Appellant his Oklahoma constitutional rights, statutory rights and right to due process by failing to rule on Mr. Cook’s application to proceed pro se on appeal.

**Proposition V**
The trial evidence was insufficient to prove beyond a reasonable doubt that Mr. Cook possessed drug paraphernalia.

**Proposition VI**
The trial court erred in failing to instruct the jury on the limited purpose of impeachment evidence by prior convictions.

After hearing oral argument and after a thorough consideration of Appellant’s propositions of error and the entire record before us on appeal, by a vote of three (3) to two (2) (P.J. Lumpkin and J. Lile voting to affirm), the Court reverses Appellant’s conviction and remands for a new trial. The Court bases its decision upon Appellant’s Propositions II and III, which urge that Appellant was denied his right to self-representation. It is a settled rule that an individual has a fundamental right to self-representation at all stages of a criminal proceeding.^1 Denial to the right to self-representation requires automatic reversal.^2 The right is either respected or denied; its deprivation cannot be harmless.^3

In Appellant’s matter, formal prosecution began with the State’s filing of the Information on August 18, 2000. The record indicates that from the time arraignment was held upon this Information, Appellant continuously requested to represent himself. The first transcribed proceeding was a September 13, 2000, hearing before the Honorable Todd Singer, Special Judge. The hearing was on a motion by the State to strengthen Appellant’s bond. Appellant requested to proceed pro se. After hearing from the State as to why bond should be increased, Judge Singer briefly explained some of the criteria relevant to fixing a bail amount and then asked Appellant to respond. In attempting to reply, Appellant began to testify as to matters that Judge Singer deemed irrelevant. After twice attempting to get Appellant back on track, Judge Singer declared: No. Once again, if you’re going to be your own counsel, and that’s why I think you probably need a lawyer and I’m probably going to refuse to let you go forward now. Because I’m convinced by the virtue of the way you’ve argued this case, that you would do yourself harm in front of a jury. I’m convinced of that. (9-13-00 Tr. 13.) Judge Singer concluded, I’m denying your request to have a- to represent yourself. Finding Appellant did not qualify for court-appointed counsel, Judge Singer directed Appellant to hire an attorney. As ordered, Appellant retained counsel but continued to express his desire to represent himself.

In a hearing upon a motion to suppress before the Honorable Millie Otey, Special Judge, her Honor denied Appellant’s request to represent himself. Judge Otey’s decision was based primarily upon the circumstance that Judge Singer had ordered Appellant to retain counsel and that retained counsel was present and ready to represent Appellant. At trial, Judge Klein would deny Appellant’s right to represent himself based upon the prior rulings of Judges Singer and Otey.

For a defendant to waive his right to counsel and proceed pro se, it is necessary that the defendant be competent,^4 as well as fully informed about the ramifications of waiving his right to counsel.^5 Possession of legal prowess is not a requirement for a valid waiver.^6 Although leave granted a defendant to represent himself may be revoked when self-representation results in disorderly or disruptive conduct, refusal to grant leave from the start cannot be based upon just the possibility such conduct will occur.^7 In Appellant’s matter, Judge Singer made no finding that Appellant was intentionally being disruptive or disorderly, nor did he specifically find Appellant was unable to conform to relevant rules of law and procedure. Instead, Judge Singer denied Appellant of the right to represent himself upon a fear that Appellant would do himself harm. The foregoing reveals that such is not a valid ground for denying a defendant leave to proceed pro se.

When a trial court is confronted with a pro se defendant who is engaging in disruptive behavior, the judge should warn the defendant that his behavior might result in a waiver of the right to represent himself.^8 The record before us does not reveal the trial court gave any such warning to Appellant. In *People v. Ward*, 567 N.E.2d 642 (Ill. App. Ct. 1991), the court set forth a suggested list of ten areas about which a defendant should be informed if he is wanting to proceed pro se.^9 We would commend use of this list to trial judges who have before them a defendant who desires to represent himself in a criminal prosecution.

In Proposition V, Appellant argues the evidence was insufficient to establish that it was Appellant who possessed the crack pipe. The Court finds Appellant’s cited authorities to be distinguishable from the circumstances presented at trial.^10 In Appellant’s matter, testimony revealed the crack pipe was plainly visible in a motel room registered solely to Appellant. Additionally, Appellant testified that he knew one individual had been smoking crack inside his room. Appellant also stated that he knew the woman with him inside the motel room was a crack smoker. When this evidence is viewed in the light most favorable to the State, it is sufficient to support the jury’s verdict.^11 Accordingly, Appellant’s Proposition V is without merit. However, as previously indicated, the Court finds reversal is warranted under Appellant’s Propositions II and III, and that Appellant’s matter should be remanded for a new trial.

Because none of Appellant’s remaining three propositions of error, if proven, would entitle Appellant to any greater relief, it is unnecessary to address such propositions in this appeal.

IT IS THEREFORE THE ORDER OF THIS COURT that Appellant’s Judgment and Sentence in Tulsa County District Court Case No. CM-2000-3012 is REVERSED AND REMANDED FOR NEW TRIAL. The Clerk of this Court is directed to forward a copy of this Order to the Honorable Todd Singer and the Honorable Millie Otey, as well as to the Honorable Allen Klein, the judge who presided over Appellant’s trial.

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 26th day of March, 2002.

GARY L. LUMPKIN, Presiding Judge

DISSENTS CHARLES A. JOHNSON, Vice Presiding Judge CHARLES S. CHAPEL, Judge RETA M. STRUBHAR, Judge

DISSENTS

ATTEST: STEVE LILE, Clerk

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Footnotes:

1. McClellan v. State, 1988 OK CR 118, 1 13, 757 P.2d 397, 399.
2. Coleman v. State, 1980 OK CR 75, 1 4, 617 P.2d 243, 247 (concurring opinion of Cornish, P.J.).
3. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 951 n.8, 79 L.Ed. 2d 122 (1984).
4. Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 2687, 125 L.Ed. 2d 321 (1993).
5. Coleman at "I 8, 617 P.2d at 246 (citation omitted).
6. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975).
7. Coleman at 1 5, 617 P.2d at 245.
8. People v. Ward, 567 N.E.2d 642, 649 (III. App. Ct. 1991).
9. Coleman at I 5, 617 P.2d at 245 (quoting United States v. Dougherty, 473 F.2d 1113, 1126 (D.C. Cir. 1972)).
10. 2 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure §§ 11.5(a), (b), (c), at 42-45 (1984).
11. Miller v. State, 1978 OK CR 54, 579 P.2d 200.
12. Hishaw v. State, 1977 OK CR 276, 568 P.2d 643.
13. Spuehler v. State, 1985 OK CR 132, 7, 709 P.2d 202, 203-04.

Oklahoma Statutes citations:

• Okla. Stat. tit. 21 § 701.8 (2011) - Unlawful Possession of Paraphernalia
• Okla. Stat. tit. 22 § 1082 (2011) - Right to Self-Representation
• Okla. Stat. tit. 22 § 47 (2011) - Withdrawal of Counsel
• Okla. Stat. tit. 22 § 134 (2011) - Due Process Rights

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• McClellan v. State, 1988 OK CR 118, 1 13, 757 P.2d 397, 399.
• Coleman v. State, 1980 OK CR 75, 1 4, 617 P.2d 243, 247.
• McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 951 n.8, 79 L.Ed. 2d 122 (1984).
• Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 2687, 125 L.Ed. 2d 321 (1993).
• Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed. 2d 562 (1975).
• People v. Ward, 567 N.E.2d 642, 649 (Ill. App. Ct. 1991).
• Miller v. State, 1978 OK CR 54, 579 P.2d 200.
• Hishaw v. State, 1977 OK CR 276, 568 P.2d 643.
• Spuehler v. State, 1985 OK CR 132, 7, 709 P.2d 202, 203-04.