Darnell Washington v. State of Arkansas

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Date:
2021-06-16 10: Cite as 2020 Ark. App. 268
33:02
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ARKANSAS COURT OF APPEALS
PhantomPDF DIVISION IV
Version: 9.7.5
No. CR-19-953

Opinion Delivered: April 29, 2020
DARNELL WASHINGTON
APPELLANT
APPEAL FROM THE JEFFERSON
COUNTY CIRCUIT COURT
V. [NO. 35-17-453]

STATE OF ARKANSAS HONORABLE ALEX GUYNN,
APPELLEE JUDGE
AFFIRMED

RAYMOND R. ABRAMSON, Judge

On June 10, 2019, a Jefferson County Circuit Court jury found appellant Darnell

Washington guilty of possession of firearms by certain persons. Washington, who previously

had been convicted of four or more felonies, represented himself at trial. The circuit court

sentenced Washington to twenty-five years’ incarceration. On appeal, Washington concedes

that his waiver of his right to counsel was unequivocal and that his conduct did not prevent

the fair and orderly exposition of the issues but alleges that his waiver of counsel was not

made knowingly and intelligently. Washington also argues that the presence of standby

counsel did not cure the absence of a valid waiver because that counsel did not participate

in the trial in any substantial way. For the following reasons, we affirm.

On July 23, 2017, officers of the Pine Bluff Police Department arrested Washington

for possessing a handgun and marijuana. On October 2, 2017, the circuit court appointed
the Jefferson County Public Defender’s Office to represent Washington. On December 18,

2018, Washington informed the circuit court that he wanted to represent himself. He

subsequently filed an affidavit asserting his request.

On January 9, 2019, Washington reiterated his desire to represent himself, and while

the circuit court acknowledged his request, it did not relieve the public defender. Instead,

after allowing Washington to consider his decision, the circuit court made inquiries to

establish Washington’s ability to represent himself. Specifically, the circuit court inquired

about Washington’s education, experience with the criminal-trial process, and knowledge

concerning making objections at trial. According to Washington, he had completed “some

college,” pleaded guilty in his previous cases, and was supposed to object when he did not

agree or “something [didn’t] sound right.” The circuit court then continued the

appointment of the public defender to act as standby counsel and directed Washington to

complete a waiver-of-counsel form.

On June 7, 2019, Washington filed two different waiver-of-counsel forms for the

circuit court’s review and a second affidavit reasserting his desire to waive his right to

counsel. Among other things, the first form (1) advised Washington of his right to an

appointed attorney; (2) inquired about Washington’s knowledge of the crimes charged and

the maximum penalty that could be imposed; (3) advised Washington that he must abide

by the rules of evidence, which control the questioning of witnesses and the admissibility of

evidence at trial; and (4) advised him that “if [he did] not properly present a defense,

subpoena witnesses, or otherwise represent [him]self in a competent manner that [he would]

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not be able to obtain a reversal of a conviction on the grounds that [he] received inadequate

representation.”

The second form again apprised Washington of his right to an appointed attorney

and also advised him that (1) he could subpoena and call witnesses to testify on his behalf;

(2) “the introduction of evidence in court is governed by rules with which a defendant may

not be familiar, but with which he must nevertheless comply”; and (3) a defendant’s lack of

knowledge concerning the law may be damaging to his defense and to any future appeals of

his case. Although Washington filed the forms and affidavits as evidence of his informed

decision to waive his right to counsel, both the circuit court and standby counsel strongly

discouraged Washington from representing himself. However, the circuit court allowed

Washington to proceed pro se.

It is undisputed that a defendant has a constitutional right to self-representation. See

Faretta v. California, 422 U.S. 806 (1975). This necessarily requires the waiver of the right

to be represented by counsel, which is a personal right that may be waived at the pretrial

stage or at trial. E.g., Jarrett v. State, 371 Ark. 100, 104, 263 S.W.3d 538, 542 (2007). A

criminal defendant may invoke his right to defend himself pro se if “(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., 263 S.W.3d at 541.

Every reasonable presumption must be indulged against the waiver of fundamental

constitutional rights, and it is the State’s burden to show that a defendant voluntarily and

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intelligently waived his fundamental right to the assistance of counsel. Walton v. State, 2012

Ark. 336, at 8, 423 S.W.3d 56, 61.

On appeal, we will reverse a circuit court’s finding that a defendant knowingly and

intelligently waived the right to counsel only if the finding is clearly against the

preponderance of the evidence. Pierce v. State, 362 Ark. 491, 497, 209 S.W.3d 364, 367

(2005). The record before us demonstrates that Washington knowingly and intelligently

waived his right to counsel, thereby rendering standby counsel’s participation in the trial

unnecessary. The Sixth Amendment to the United States Constitution guarantees an

accused the right to have counsel assist in his defense. E.g., Dunn v. State, 2019 Ark. App.

398, at 26, 585 S.W.3d 681, 696. Nonetheless, a criminal defendant has the right to self-

representation at trial, provided that the waiver of counsel is knowingly and intelligently

made. E.g., id.

The constitutional minimum for determining whether an accused knowingly and

intelligently waived the right to have counsel present is that the accused be made sufficiently

aware of the right to the aid of counsel and of the possible consequences of a decision to

forgo that right. E.g., id. at 27–28, 585 S.W.3d at 696–97. Determining whether a defendant

has made an intelligent waiver of the right to counsel depends on the particular facts and

circumstances of the case, including the background, experience, and conduct of the

accused. E.g., id. at 27, 585 S.W.3d at 696. “A specific warning of the dangers and

disadvantages of self-representation, or a record showing that the defendant possessed such required

knowledge from other sources, is required to establish the validity of a waiver.” E.g., id. at 27,

585 S.W.3d at 696 (emphasis added). This ensures that when a defendant waives the right

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to counsel, “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.

In this case, the preponderance of the evidence supports the circuit court’s finding

that Washington knowingly and intelligently waived his right to counsel. After Washington

informed the circuit court that he wanted to represent himself, the court informed him that

he would be held to the same standards as “every other attorney.” The court then told

Washington that “I wouldn’t recommend representing myself, but you have the right to do

that” and instructed him to complete a waiver-of-counsel form. The court also told

Washington that “I don’t think you understand the depth of the experience you need to try

a case and what you need to know.” While Washington still insisted on representing himself,

the court instructed him to obtain a waiver-of-counsel form from the public defender and

continued the appointment of the public defender as standby counsel.

The signed waiver-of-counsel forms Washington presented to the circuit court show

that he was well aware of the pitfalls of proceeding pro se. Washington’s waivers indicate

that he was aware (1) of his right to counsel; (2) that the circuit court could impose a

sentence of forty years’ incarceration; (3) that he must comply with the rules of evidence,

which control the questioning of witnesses and the admission of evidence; (4) of his right

to cross-examine the State’s witnesses, subject to the court’s ruling on any objections lodged

by the State; (5) of his right to subpoena witnesses on his own behalf; and (6) that his lack

of knowledge concerning the law may be damaging to his defense and to any future appeals

of his case, if convicted.

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Washington’s arguments on appeal are unpersuasive. Washington points to no

authority requiring the circuit court to personally apprise him of the dangers and

disadvantages of self-representation. Indeed, the law permits a waiver of the right to counsel

predicated solely on “a record showing that the defendant possessed [the] required

knowledge from other sources.” See Dunn, 2019 Ark. App. 398, at 27, 585 S.W.3d at 696.

Here, those other sources include Washington’s waiver-of-counsel forms that informed him

of “his right to have counsel present and of the possible consequences of a decision to forgo

the aid of counsel.” Id. at 27–28, 585 S.W.3d at 696–97.

Washington’s assertion that his lack of legal knowledge and poor performance at trial

somehow invalidates his knowing and intelligent waiver also finds no support in the law. It

is well settled that “a defendant’s technical legal knowledge . . . is not relevant to an

assessment of his knowing exercise of the right to defend himself” and that “the right of

self-representation carries with it the responsibility for one’s own mistakes.” Pierce v. State,

362 Ark. 491, 497–98, 209 S.W.3d 364, 368 (2005) (citing, in part, Faretta, 422 U.S. at 835,

836). In this case, the circuit court’s admonitions, Washington’s waiver-of-counsel forms

and affidavits, and the advice of standby counsel all show that Washington knew what he

was doing and made the choice to waive his right to counsel with his “eyes open.” See

Sirkaneo v. State, 2019 Ark. 308, at 7, 586 S.W.3d 606, 609–10.

Because Washington knowingly and intelligently waived his right to counsel, the

degree to which standby counsel participated in trial does not matter for appellate purposes.

The degree to which standby counsel assisted the accused at trial becomes an issue for our

court only when the waiver of counsel is determined to be invalid. See, e.g., Dunn, 2019

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Ark. App. 398, at 29, 585 S.W.3d at 697. Such is not the case here. We have already found

that Washington made a knowing and intelligent waiver of his right to counsel. Accordingly,

we affirm.

Affirmed.

KLAPPENBACH and MURPHY, JJ., agree.

James Law Firm, by: William Owen James III and William O. “Bill” James, Jr., for

appellant.

Leslie Rutledge, Att’y Gen., by: Jason Michael Johnson, Ass’t Att’y Gen., for appellee.

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