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24699 - State v. Brewer

Davis Adv. Sh. No. 29
S.E. 2d

THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

Johnny Brewer, Appellant.

ON WRIT OF CERTIORARI

Appeal From Lexington County

Rodney A. Peeples, Judge

Opinion No. 24699

Submitted September 29, 1997 - Filed October 13, 1997

REVERSED

John D. Delgado, of Columbia, for appellant.

Attorney General Charles Molony Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Donald J. Zelenka, all of

Columbia; and Solicitor Donald V. Myers, of

Lexington, for respondent.

PER CURIAM: Following the denial of appellant's motion to

proceed pro se in this capital case, we issued a writ of certiorari to review

the decision of the circuit court. We reverse.

p35


STATE v. JOHNNY BREWER

It is well-established that an accused may waive the right to

counsel and proceed pro se. Faretta v. California, 422 U.S. 806, 95 S.Ct.

25251 45 L.Ed.2d 562 (1975); State v. Dixon, 269 S.C. 107, 236 S.E.2d 419

(1977). Although a defendant's decision to proceed pro se may be to the

defendant's own detriment, it "must be honored out of that respect for the

individual which is the lifeblood of the law." Faretta v. California, 422

U.S. at 834, 95 S.Ct. at 2541, 45 L.Ed.2d at 581.

The right to proceed pro se must be clearly asserted by the

defendant prior to trial. State v. Sims, 304 S.C. 409, 405 S.E.2d 377

(1991); United States v. Lorick, 753 F.2d 1295 (4th Cir. 1985). The trial

judge has the responsibility to ensure that the accused is informed of the

dangers and disadvantages of self-representation, and makes a knowing

and intelligent waiver of the right to counsel. Faretta v. California supra;

State v. Dixon, supra. The ultimate test of whether a defendant has made

a knowing and intelligent waiver of the right to counsel is not the trial

judge's advice, but the defendant's understanding. Graves v. State, 309

S.C. 307, 422 S.E.2d 125 (1992). A determination by the trial judge that

the accused lacks the expertise or technical legal knowledge to proceed pro

se does not justify a denial of the right to self-representation; the only

relevant inquiry is whether the accused made a knowing and intelligent

waiver of the right to counsel. Faretta v. California, supra; United States

v. Bennett, 539 F.2d 45 (10th Cir. 1976).

In ruling on appellant's motion to proceed pro se, the trial

judge stated, "If this was [sic] not a death penalty case, perhaps my ruling

would be different. But I am of the view that the court has adequately

explained to you your right of self representation, and I think that you

understand it, but I don't think you appreciate it. I think you've

understood what I have said, but I think you have failed, for whatever

motive or reason that you have, to accept it . . . " Although the judge

found that he had adequately explained appellant's right of self-

representation and appellant understood it, he stated that appellant did

not "appreciate it" and had failed to "accept it." According to the trial

judge, "because of the irreversible nature of the consequences," allowing

appellant to represent himself in this case "is fraught with inherent

disastrous consequences."

There is no prohibition against a capital defendant knowingly

and intelligently waiving the right to counsel. See State v. Brown, 289

S.C. 581, 347 S.E.2d 882 (1986)(trial judge properly determined a capital

defendant knowingly and intelligently waived his right to counsel where

p36


STATE v. JOHNNY BREWER

the trial judge informed him that he was not entitled to appointed counsel

because he was not indigent and advised him of the dangers of self-

representation). Although the State points to appellant's request for stand-

by counsel as evidence that appellant did not knowingly and intelligently

waive his right to counsel, a defendant has a right to the assistance of

counsel even if he is representing himself. State v. Sanders, 269 S.C. 215,

237 S.E.2d 53 (1977). Therefore, the fact that appellant requested stand-

by counsel does not render the waiver of counsel invalid.

It appears that the trial judge denied the motion to proceed

pro se based on the fact that the trial judge did not believe that

appellant's decision to represent himself in a death penalty case was a

good decision. A decision can be made intelligently, with an

understanding of the consequences, without the decision itself being a wise

one.

Because the evidence reveals, and the trial judge found, that

appellant's decision to waive his right to counsel and proceed pro se in

this matter was knowingly, intelligently, and voluntarily made, the trial

judge violated appellant's 6th Amendment right to self-representation in

denying the motion. We find that appellant is entitled to proceed pro se

in this matter with the assistance of stand-by counsel. Accordingly, the

decision of the trial judge is

REVERSED.

p37