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M-2017-511

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William Robert Burk v The State Of Oklahoma

M-2017-511

Filed: Nov. 14, 2019

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

William Robert Burk appealed his conviction for Obstruction of a Public Officer. His conviction and sentence were upheld as he received thirty days in jail and a $500 fine. Judge Lumpkin dissented. Burk was stopped by police for driving with an improper license tag. He refused to give his driver's license or identify himself, even handing the officer a document claiming he was a "free citizen." After a struggle, he locked himself in his car until the officers threatened to break the window to get him out. He was arrested for obstruction. Burk claimed he should have had a lawyer represent him and argued that the court had not properly warned him of the risks of representing himself. However, the court found that he had knowingly waived his right to counsel through his actions and had been sufficiently warned. The evidence showed he intentionally delayed the police, which supported his conviction. The court decided to affirm his conviction, but Judge Lumpkin disagreed, feeling that Burk's mental state and the lack of proper warnings about self-representation had not been adequately addressed.

Decision

The Judgment and Sentence of the District Court of Payne County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Issues

  • Was there an error in the trial court's finding that Appellant knowingly and intelligently decided to represent himself?
  • Did the evidence support Appellant's conviction for obstruction of a public officer?

Findings

  • the trial court did not err in finding that Appellant knowingly and intelligently decided to represent himself
  • the evidence was sufficient to support Appellant’s conviction for obstruction of a public officer
  • the Judgment and Sentence of the District Court of Payne County is AFFIRMED

M-2017-511

Nov. 14, 2019

William Robert Burk

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

KUEHN, VICE PRESIDING JUDGE: William Robert Burk was tried by jury and convicted of Obstruction of Public Officer in the District Court of Payne County, Case No. CM-2015-1641. In accordance with the jury’s recommendation the Honorable Katherine Thomas, Special Judge, sentenced Burk to thirty (30) days in the Payne County Jail and a fine of $500.00.

On December 13, 2015, Stillwater Police Officer Casteel and Sergeant Gripe stopped Appellant for driving with an improper license tag. The officers were uniformed and in a clearly marked police vehicle. The paper affixed to Appellant’s SUV, which was not a license tag issued by any state, tribe, or country, read in part U.S. 1 Citizen Identity: Not for Hire A Free Citizen Traveler. Appellant refused Casteel’s request for a driver’s license or proof of insurance, and would not identify himself. Instead, he handed Casteel a document titled in part U.S. Citizen Identity, which stated, among other things, that the bearer would remain silent. After this, Appellant retreated inside his locked car. Casteel explained that Appellant was not free to leave until Casteel verified his identification and valid driver’s license. The two officers attempted without success to persuade Appellant out of his vehicle; he complied when they threatened to break a window to unlock the door. Appellant was arrested for obstruction, and his vehicle was towed. The entire stop was recorded.

In Proposition I, Appellant claims the trial court erred in finding that Appellant knowingly and intelligently decided to represent himself. We find that Appellant impliedly waived his right to counsel through his conduct. A defendant has a constitutional right to waive his right to counsel and elect to represent himself. Lamar v. State, 2018 OK CR 8, I 29, 419 P.3d 283, 292; Faretta U. California, 422 U.S. 806, 818-21 (1975). A defendant must be warned on the record about the dangers of self-representation. Lamar, I 29, 419 P.3d at 292. We have consistently refused to impose a particular list of factors on trial courts, but evaluate an adequate warning based on the circumstances of the case. Mathis v. State, 2012 OK CR 1, I 15, 271 P.3d 67, 74.1 We indulge every reasonable presumption against waiver. Norton U. State, 2002 OK CR 10, 7, 43 P.3d 404, 407. However, a defendant who understands his right of self-representation and has a clear intent to exercise it must be allowed to proceed. Mitchell v. State, 2016 OK CR 21, I 4, 387 P. 3d 934, 937. A waiver of the right to counsel may be determined from, among other things, a defendant’s conduct. Mathis, 2012 OK CR 1, I 7 n.13, 271 P.3d at 72, n.13; Braun v. State, 1995 OK CR 42, IT 12, 909 P.2d 783, 788; Ex Parte Meadows, 106 P.2d 139, 146 (Okl.Cr. 1940). See also Colbert v. State, 1986 OK CR 15, 714 P.2d 209 (failure to retain counsel done for purposes of delay may constitute implied waiver by conduct); Stevenson v. State, 1985 OK CR 74, 11-12, 702 P.2d 371, 375 (failure to retain counsel without showing of cause, after having been advised to do so within a reasonable time, may constitute implied waiver by conduct).

Appellant claims he was not warned of the range of punishment or told that by proceeding pro se he would waive any claim of ineffective assistance of counsel on appeal. The record shows that Appellant was aware of both the charge and range of punishment. Taking into account the entire circumstances of the case, the failure to explicitly warn him of the waiver of a claim on appeal did not render Appellant’s decision to proceed pro se involuntary.

Mere failure to seek or hire counsel is not enough to presume waiver; the record must show, through conversations between a defendant and the trial court, that the failure to appear with counsel is a voluntary choice. Norton, 2002 OK CR 10, I 8, 43 P.3d at 407. The record must show that a defendant was advised of his right to counsel, was warned of the consequences of his inaction or failure to appear with counsel after the warning, including that he would be required to proceed, and understood this advice and warnings. Id., I 15, 43 P.3d at 409.

Other jurisdictions have more explicitly described the doctrine of implied waiver of counsel by conduct. The Maine Supreme Judicial Court found it occurs where a defendant intentionally engages in conduct that he has been warned will result in a loss of the right. State v. Nisbet, 2016 ME 36, I 27, 134 A.3d 840, 851. In Nisbet, the defendant was explicitly warned that, if he persisted in conduct that would cause counsel to withdraw, the court would neither appoint new counsel nor continue the case; when the defendant did so, and counsel withdrew, his behavior amounted to implied waiver by conduct. Id. at II 31-32, 134 A.3d at 852. The Nisbet Court noted that a properly warned non-indigent defendant’s ‘stubborn failure’ to hire counsel can amount to a waiver of the right to representation. Id., I 28, 134 A.3d at 851-52.

The Tenth Circuit has recognized implied waiver by conduct may occur where a defendant both fails to hire counsel and refuses to accept appointed counsel. United States v. Allen, 895 F.2d 1577, 1578 (10th Cir. 1990). However, that determination requires record evidence that the defendant was warned about the dangers of self-representation, so that any subsequent waiver by conduct could be found to be knowing, intelligent, and voluntary. Id. at 1579. See also United States v. Bauer, 956 F.2d 693, 695 (7th Cir. 1992) (defendant who can afford to retain counsel but refuses to do so waives the right to counsel by conduct); United States v. Goldberg, 67 F.3d 1092, 1100 (3d Cir. 1995) (properly warned defendant who continues dilatory tactics may be found to engage in implied waiver by conduct); State v. Jones, 772 N.W.2d 496, 505 (Minn. 2009) (same).

The record here does not conclusively show that Appellant failed to retain counsel specifically in an effort to delay his trial; eventually, Appellant himself asked that his case be set for trial. However, the district court ordered him on at least six occasions to have legal counsel at his next hearing. Over the course of a year, Appellant instead appeared alone. The record is replete with his explanations for his lack of success in retaining counsel. Appellant chose to characterize this failure as a denial of his right to representation. However, as the trial court noted, the court could not require any attorney to take Appellant’s case on a paid basis. Appellant repeatedly rejected the opportunity for appointed counsel after failing to find an attorney to take his case. He consistently refused to apply for indigent representation, saying he could afford an attorney; nor would he apply for court-appointed counsel although he was ordered to do so.

Appellant first announced he would represent himself on April 29, 2016, claiming he was forced to do so. On August 8, 2016, Appellant again refused to apply for court-appointed counsel, saying he did not believe they would represent him. Appellant noted he had previously represented himself in a Texas proceeding, and said he looked forward to presenting his case to a jury. At that hearing, the trial court inquired into Appellant’s education and competency, confirmed that he understood the charge against him, and advised him of the dangers and disadvantages of representing himself.

Again on the day of trial, the court asked whether Appellant would apply for a court-appointed attorney. When Appellant refused, the trial court described some challenges to self-representation and gave Appellant procedural guidance before the trial began. The record shows Appellant was more than adequately warned of the dangers of self-representation, including the dangers attendant to his continued failure to retain counsel. Lamar, 2018 OK CR 8, I 29, 419 P.3d at 292; Mitchell, 2016 OK CR 21, I 11, 387 P.3d at 939. Appellant could afford to hire counsel, and the record is replete with evidence that he attempted to do so. However, he complained that no lawyer in the State of Oklahoma would represent him, and elected to refuse court-appointed counsel. Furthermore, the record clearly shows Appellant understood the ramifications he faced if his obstructionist tactics continued. He was aware that he would have to represent himself if he continued to claim that no lawyer would represent him and continued to refuse court-appointed counsel. He agreed to do so.

Appellant impliedly waived his right to counsel, and the trial court did not err by proceeding to trial with Appellant representing himself. This proposition is denied.

In his second proposition, Appellant claims the evidence was insufficient to support his conviction for obstruction. The State had to prove that Appellant willfully delayed or obstructed a public officer in the discharge of his duties. 21 O.S.Supp.2015, § 540. Appellant admitted that he repeatedly refused to provide a driver’s license when asked, and that he locked himself in his SUV and refused to engage with officers or obey their requests or commands, including refusing to identify himself or substantively answer any questions. The record clearly shows that Appellant was aware he was dealing with police officers. Appellant argues that (a) he could not have willfully refused to produce a driver’s license because he did not carry one, and (b) he did not delay the officers’ investigation by words or other actions. These arguments have no merit. Obstruction may be shown by words or actions which frustrate or impede an investigation. Trent U. State, 1989 OK CR 36, I 5, 777 P.2d 401, 402-03. Appellant willfully engaged in conduct, including both words and actions, which delayed and obstructed the officers. Taking the evidence in the light most favorable to the State, any rational trier of fact could find beyond a reasonable doubt that Appellant obstructed a police officer in the discharge of his duties. Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559. This proposition is denied.

DECISION
The Judgment and Sentence of the District Court of Payne County is AFFIRMED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2019), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

Footnotes:

  1. 21 O.S.Supp.2015, § 540.
  2. Lamar v. State, 2018 OK CR 8, I 29, 419 P.3d 283, 292.
  3. Faretta v. California, 422 U.S. 806, 818-21 (1975).
  4. Mathis v. State, 2012 OK CR 1, I 15, 271 P.3d 67, 74.
  5. Norton v. State, 2002 OK CR 10, 7, 43 P.3d 404, 407.
  6. Mitchell v. State, 2016 OK CR 21, I 4, 387 P. 3d 934, 937.
  7. Mathis, 2012 OK CR 1, I 7 n.13, 271 P.3d at 72, n.13.
  8. Braun v. State, 1995 OK CR 42, IT 12, 909 P.2d 783, 788.
  9. Ex Parte Meadows, 106 P.2d 139, 146 (Okl.Cr. 1940).
  10. Colbert v. State, 1986 OK CR 15, 714 P.2d 209.
  11. Stevenson v. State, 1985 OK CR 74, 11-12, 702 P.2d 371, 375.
  12. Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559.
  13. State v. Nisbet, 2016 ME 36, I 27, 134 A.3d 840, 851.
  14. United States v. Allen, 895 F.2d 1577, 1578 (10th Cir. 1990).
  15. United States v. Bauer, 956 F.2d 693, 695 (7th Cir. 1992).
  16. United States v. Goldberg, 67 F.3d 1092, 1100 (3d Cir. 1995).
  17. State v. Jones, 772 N.W.2d 496, 505 (Minn. 2009).
  18. Holden v. Hardy, 169 U.S. 366, 389, 18 S. Ct. 383, 387, 42 L. Ed. 780 (1896).
  19. Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
  20. United States v. White, 529 F.2d 1390, 1393 (8th Cir. 1976).
  21. Commonwealth v. Lucarelli, 971 A.2d 1173, 1179, 601 Pa. 185, 194 (2009).

Oklahoma Statutes citations:

  • Okla. Stat. tit. 21 § 540 (2015) - Obstruction of Public Officer
  • Okla. Stat. tit. 21 § 701.8 (2011) - Sentencing for Criminal Offenses

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:

  • Lamar v. State, 2018 OK CR 8, I 29, 419 P.3d 283, 292
  • Faretta v. California, 422 U.S. 806, 818-21 (1975)
  • Mathis v. State, 2012 OK CR 1, I 15, 271 P.3d 67, 74
  • Norton v. State, 2002 OK CR 10, 7, 43 P.3d 404, 407
  • Mitchell v. State, 2016 OK CR 21, I 4, 387 P.3d 934, 937
  • Braun v. State, 1995 OK CR 42, IT 12, 909 P.2d 783, 788
  • Ex Parte Meadows, 106 P.2d 139, 146 (Okl.Cr. 1940)
  • Colbert v. State, 1986 OK CR 15, 714 P.2d 209
  • Stevenson v. State, 1985 OK CR 74, 11-12, 702 P.2d 371, 375
  • Trent v. State, 1989 OK CR 36, I 5, 777 P.2d 401, 402-03
  • Easlick v. State, 2004 OK CR 21, I 15, 90 P.3d 556, 559
  • State v. Nisbet, 2016 ME 36, I 27, 134 A.3d 840, 851
  • United States v. Allen, 895 F.2d 1577, 1578 (10th Cir. 1990)
  • United States v. Bauer, 956 F.2d 693, 695 (7th Cir. 1992)
  • United States v. Goldberg, 67 F.3d 1092, 1100 (3d Cir. 1995)
  • State v. Jones, 772 N.W.2d 496, 505 (Minn. 2009)
  • Holden v. Hardy, 169 U.S. 366, 389, 18 S. Ct. 383, 387, 42 L. Ed. 780 (1896)
  • Lewis v. Davis, 2019 WL 330460, at *8 (S.D.Tex Jan. 25, 2019)

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