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2007-UP-544 - State v. Pride

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

The State, Respondent,

v.

Christopher Lee Pride, Appellant.


Appeal From Union County
 John C. Hayes, III, Circuit Court Judge


Unpublished Opinion No. 2007-UP-544
Heard August 24, 2007 – Filed December 5, 2007
Formerly Opinion No. 4208
Submitted January 1, 2007 – Filed February 20, 2007
Withdrawn, Substituted, and Refiled December 5, 2007


AFFIRMED


Appellate Defender Robert M. Dudek, of Columbia, Fletcher N. Smith, Jr., of Greenville, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Senior Assistant Attorney General Harold M. Coombs, Jr., all of Columbia; and Solicitor Thomas E. Pope, of Rock Hill, for Respondent.

BEATTY, J.:  Christopher Lee Pride was tried in absentia and without counsel for the charges of possession of crack cocaine with intent to distribute and possession of crack cocaine with intent to distribute within the proximity of a school.  After the jury convicted Pride of both offenses, the circuit court judge issued a sealed sentence.  Pride appeals, arguing the circuit court judge erred in finding he waived his right to counsel.  We affirm.

The panel of this Court affirmed Pride’s convictions in a published opinion.  State v. Pride, 372 S.C. 443, 641 S.E.2d 921 (Ct. App. 2007).  Subsequently, the panel granted Pride’s petition for rehearing and request for oral argument.  We now withdraw our previous opinion and substitute the attached opinion.

FACTS

As a result of an on-going narcotics investigation, detectives with the Union Police Department identified Pride as a crack cocaine dealer.  On the morning of April 2, 2003, detectives went to Pride’s residence and served him with a search warrant.  Upon entering the residence, Detective Brian Bailey read Pride his Miranda[1] rights.  Bailey then questioned Pride as to whether there were any illegal drugs in the house.  According to Bailey, Pride admitted there were illegal drugs in the house and there was a bag of crack cocaine in his blue jeans which were located in his bedroom.  While conducting a search of the area identified by Pride, the detectives found $1,875 in cash and a bag containing 3.62 grams of crack cocaine.  Detectives then placed Pride under arrest and transported him to the police station.  Pride gave a written statement in which he confessed to dealing crack cocaine and acknowledged the result of the detectives’ search of his residence.  Subsequently, a Union County grand jury indicted Pride for possession of crack cocaine with intent to distribute (PWID) and PWID within proximity of a school.

On October 13, 2004, Pride’s case was called for trial.  Although Pride was not present, William All, the public defender assigned to his case, appeared in court.  When the circuit court judge inquired about Pride’s absence All outlined the history of his representation of Pride.  All was initially appointed to represent Pride on two other drug charges.  After Pride was arrested on a bench warrant, he retained Fletcher Smith, a private attorney.  All explained that he was again appointed to represent Pride on September 13, 2004, the first day of the term of court for which Pride was originally scheduled to go to trial.  On that day, Pride was still represented by Smith.  The circuit court judge, however, granted Smith’s motion to be relieved and informed Pride that he needed to retain an attorney.  Because Pride qualified for the public defender’s office, All was again appointed to his case. 

Pride failed to appear for two scheduled appointments with All.  Each time, Pride informed All that he could not attend the appointments because of his work schedule.  After the two missed appointments, All sent Pride a letter on October 1, 2004, indicating that his trial was scheduled for the week of October 11, 2004, and that he could not adequately represent him without speaking with him.  Additionally, All asked Pride to advise him if he had retained private counsel.  In response, Pride scheduled another appointment for October 7th.  Pride again failed to appear for this appointment and offered no explanation.    

On October 11th, Pride went to the Union County courthouse to report for roll call and was arrested for a driving under suspension charge.  When officers searched Pride’s person, they discovered $5,000 in his pocket.  While in custody, law enforcement transported Pride to the courthouse so that he could speak with All.  At that time, Pride told All that Smith was again representing him and that he had sent some money to Smith.  Pride also claimed that he had intended to give Smith the $5,000 after he reported for roll call.  Later that evening, Pride was released from custody.  The next morning at the courthouse, All told Pride that Smith needed to come to the courthouse to review the pre-trial motions that the solicitor intended to use during his case.  According to All, Pride indicated that Smith would come to the courthouse.  All then contacted Smith’s office in the afternoon and discussed the matter with Smith’s administrative assistant.  The administrative assistant informed All that Pride had attempted to pay $250 for Smith’s representation.  In response, All stated that Pride had indicated to him that he had $5,000 for Smith.  Although Smith’s administrative assistant stated that she would contact Pride about payment and then call All back, she did not contact All and there is no evidence in the record of an agreement by Smith to represent Pride.  On the morning of trial, the solicitor contacted All and told him that Smith’s office had informed him that Smith did not represent Pride. 

Upon hearing this factual recitation, the solicitor moved to have Pride tried in his absence.  The circuit court judge then inquired whether All wished to make a motion to be relieved as counsel.  Although All was hesitant to make the motion out of an ethical obligation to his client, he made the motion which was granted by the judge.  In so ruling, the judge found that Pride waived his right to counsel by his conduct.  In explaining his ruling, the judge believed that Pride was “sort of playing the attorney game so to speak and saying somebody represents him and they say they don’t.”  Pride was then tried and convicted for the drug offenses.  After the jury returned a verdict, the judge issued a sealed sentence. 

On January 18, 2005, Pride appeared in court to be sentenced.  Pride admitted that he did not have an attorney for the sentencing hearing.  All appeared at the hearing and again explained his history of representing Pride.  He indicated that he could “perfect an appeal for [Pride] if he wants to raise the issue of whether or not he shouldn’t have been tried in his absence.”  All indicated that he would move for appellate defense to represent Pride in his appeal.  The judge then asked All to stand with Pride as he imposed the sentence.  The judge sentenced Pride to twenty-five years imprisonment and a $50,000 fine for PWID and fifteen years imprisonment and a $10,000 fine for PWID within proximity of a school.  The sentences were to be served concurrently.  This appeal followed.    

DISCUSSION

Pride argues the circuit court judge erred in relieving All as his counsel and proceeding with the trial in his absence.  He contends his conduct was not sufficient to establish that he waived his right to counsel.[2]

As a threshold matter, we initially question whether Pride adequately preserved this issue for our review.  Although Pride’s lack of trial representation was discussed at his sentencing hearing, Pride never moved for a new trial on the ground that he did not knowingly waive his right to counsel.  See State v. Williams, 303 S.C. 410, 411, 401 S.E.2d 168, 169 (1991)(holding defendant, who was tried and convicted in his absence without counsel, failed to preserve issue of whether he waived his right to trial counsel where neither he nor his sentencing attorney raised this issue to the circuit court); cf. State v. White, 305 S.C. 455, 456, 409 S.E.2d 397, 397 (1991) (finding defendant, who was tried and convicted in his absence without counsel and appeared pro se at the sentencing hearing, could raise the issue of whether he waived his right to trial counsel because defendant’s first opportunity to raise the issue was on appeal).      

Assuming the general discussion during the sentencing hearing was sufficient to preserve this issue, we find the circuit court judge correctly found Pride waived his right to counsel by his conduct.    

“The Sixth Amendment guarantees criminal defendants a right to counsel.  This right may be waived.” State v. Gill, 355 S.C. 234, 243, 584 S.E.2d 432, 437 (Ct. App. 2003)(citations omitted).  This court has explained that “[a] defendant may surrender his right to counsel through (1) waiver by affirmative, verbal request; (2) waiver by conduct; and (3) forfeiture.”  State v. Thompson, 355 S.C. 255, 262, 584 S.E.2d 131, 134 (Ct. App. 2003). 

In support of his argument, Pride appropriately relies on our decision in State v. Thompson, 355 S.C. 255, 584 S.E.2d 131 (Ct. App. 2003).  However, as will be more fully discussed, neither Thompson nor our more recent case of State v. Roberson, 371 S.C. 334, 638 S.E.2d 93 (Ct. App. 2006), cert. granted (Oct. 19, 2007), require reversal of Pride’s convictions and sentences.

In Thompson, the defendant was tried in absentia and without counsel for the offenses of discharging a firearm into a dwelling and malicious injury to personal property over $1,000 but less than $5,000.  After the jury convicted Thompson, the judge issued a sealed sentence.  At sentencing, Thompson’s counsel moved for a new trial because he was denied the right to counsel.  Counsel claimed that Thompson had appeared at four or five roll calls after his arrest.  Additionally, counsel alleged that Thompson, despite his request, had been turned down for a public defender because he did not meet the financial requirements to qualify.  In terms of Thompson’s failure to appear at trial, his counsel informed the court that Thompson was not given adequate notice of the trial date.  Thompson, 355 S.C. at 260, 584 S.E.2d at 133.  The court denied Thompson’s motion for a new trial.  Id. at 260, 584 S.E.2d at 134.  On appeal, this court reversed the decision of the circuit court.  We held that Thompson’s failure to appear at trial did not rise to the level of waiver.  Id. at 266, 584 S.E.2d at 136.  Our decision was based on the following factors:  (1) Thompson had not been advised of the dangers and disadvantages of self-representation under Faretta; (2) there was no inference in the record that Thompson understood the dangers and disadvantages of self-representation; and (3) Thompson did not have a prior record which would have familiarized him with the criminal court system.  Id. at 267, 584 S.E.2d at 137.

Recently, this court had the opportunity to apply Thompson in reaching its decision in State v. Roberson, 371 S.C. 334, 638 S.E.2d 93 (Ct. App. 2006), cert. granted (Oct. 19, 2007).  In Roberson, the defendant was arrested and then released on bond for failing to register as a sex offender.  The terms of the bond required the defendant to appear for roll call at the term of general sessions court in Dorchester County beginning on November 29, 1999.  By signing the bond, the defendant acknowledged that he would be tried in his absence if he failed to appear in court.  The Dorchester County Solicitor’s office mailed to the defendant’s last known address two notices of appearances for the terms of court scheduled for November 29, 1999, and January 10, 2000.  On February 16, 2000, the defendant was tried in his absence without counsel.  After the jury convicted the defendant, the circuit court judge issued a sealed sentence. 

Approximately three years later, the defendant, who was represented by counsel, appeared before the circuit court to be sentenced.  During this hearing, the defendant’s counsel moved for a new trial on the grounds the defendant did not knowingly and voluntarily fail to appear for his trial and he was denied his right to be represented by counsel at trial.  Because it was unclear whether the defendant had been represented at trial, the judge continued the motion until a trial transcript could be located.  At the final hearing, the defendant’s counsel moved to vacate the defendant’s conviction and sentence primarily on the ground that he was not represented by counsel at trial.  In response, the solicitor asserted the defendant waived his right to counsel by failing to appear and that he was apprised of his right to counsel at the bond hearing.  The judge denied the motion for a new trial finding the defendant waived his right to counsel because the terms of his bond indicated that he would be tried in his absence if he failed to appear and he had been informed of his right to counsel at the bond hearing.  Roberson, 371 S.C. at 337, 638 S.E.2d at 94.

On appeal, we reversed the circuit court judge’s decision and remanded for a new trial.  Roberson, 371 S.C. at 339, 638 S.E.2d at 96.  Applying Thompson, we found the defendant’s failure to appear at trial did not constitute an affirmative waiver of his right to counsel.  Moreover, because the defendant was never advised of proceeding without representation, we declined to infer that the defendant’s conduct, i.e., his failure to appear at trial, constituted a waiver of his right to counsel.  Id. at 339, 638 S.E.2d at 95.

Although a cursory reading of above-outlined cases would appear to warrant a reversal of Pride’s convictions and sentences, upon closer review we find a crucial difference between the facts in Pride’s case and those of Thompson and Roberson.  Significantly, unlike Pride, the defendants in Thompson and Roberson were not represented by counsel until the sentencing hearing.   Thus, the finding that the defendants in Thompson and Roberson waived their right to trial counsel was based solely on their failure to appear for trial.  Here, Pride not only failed to appear for trial but he also failed to cooperate with his appointed counsel and knowingly attempted to manipulate the court system.  Pride was represented by appointed counsel and given additional time to prepare for trial after his private attorney was relieved.  Pride repeatedly failed to appear for his scheduled appointments with the public defender or offer any assistance in preparation for his defense.  Pride essentially “fired” his appointed attorney by assuring him up to the day before trial that Smith was representing him and he had sent Smith money to retain him as counsel.  Pride, however, was aware that Smith had not agreed to represent him.  Despite this knowledge and his awareness of the trial date, Pride failed to cooperate with his appointed counsel and failed to retain a private attorney by the date of the scheduled trial.  Furthermore, there is evidence in the record that someone had seen Pride in the courthouse shortly before the case was called for trial.  Yet, Pride refused to show up for trial apparently because he was represented by appointed counsel rather than counsel of his own choosing.  Based on the foregoing, we find Pride’s deliberate, dilatory, and manipulative conduct was sufficient to waive his right to counsel. 

Additionally, we reject Pride’s contention that his convictions should be reversed because the trial judge failed to admonish him regarding the dangers and disadvantages of self-representation pursuant to Faretta v. California, 422 U.S. 806 (1975).  In Faretta, the United States Supreme Court ruled that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.  Faretta, 422 U.S. at 835.  Faretta, however, is inapposite to the facts of the instant case.  At no point did Pride indicate that he wanted to represent himself.  Instead, he consistently communicated to the court and his court-appointed attorney that he wanted to retain a private attorney.  See, e.g., Robards v. Rees, 789 F.2d 379, 383 (6th Cir. 1986) (noting exception to application of Faretta where “prosecution makes an affirmative showing that the defendant’s request for self-representation is merely a tactic to secure a delay in the proceeding”); State v. Jones, 546 P.2d 45, 51 (Ariz. Ct. App. 1976) (finding Faretta was not controlling where defendant did not request that he be permitted to represent himself but, instead, requested on the day of trial that his present attorney be fired and that a new one be appointed); State v. Shumaker, 914 So. 2d 1156, 1162 (La. Ct. App. 2005) (holding defendant’s reliance on Faretta, was misplaced and stating “defendant never expressly asked that he be allowed self-representation.  He simply indicated that he wanted to fire his counsel.  That statement certainly does not reach a clear and unequivocal expression requesting the right to represent oneself as required by Faretta.”).

We find support for our decision in a recent case issued by the Indiana Supreme Court.  Jackson v. State, 868 N.E.2d 494 (Ind. 2007).  In Jackson, the defendant was charged with possession of cocaine with intent to deliver and possession of a handgun without a license.  An attorney admitted in Indiana filed Jackson’s preliminary motions.  At subsequent hearings, the defendant appeared with counsel who was admitted to the state pro hac vice.  At a final pre-trial conference, the defendant appeared without an attorney.  Because the defense had not complied with the State’s pre-trial discovery requests, the trial judge revoked Jackson’s attorney’s pro hac vice status.  The initial Indiana attorney remained Jackson’s attorney of record.  Approximately one week before trial, Jackson and his attorney appeared for a hearing and informed the trial judge that Jackson intended to retain new counsel.  Based on this information, the trial judge granted Jackson’s motion to continue his trial for several months.  Neither Jackson nor any defense attorney appeared for two pretrial conferences.  After a bench warrant was issued for Jackson’s arrest, the State moved to proceed with the trial in Jackson’s absence.  Ultimately, Jackson was tried and convicted in absentia and without counsel.  On appeal, the Indiana Court of Appeals reversed Jackson’s convictions and remanded for a new trial.  The Indiana Supreme Court affirmed the trial judge, stating:

Of course, the constitutional rights of Jackson and every other accused must be strictly enforced.  But a defendant cannot be permitted to manipulate the system simply by refusing to show up for trial.  Jackson has not established on this record that any of his constitutional rights have been violated.  To the contrary, we conclude that this record fully supports the trial court’s finding that Jackson willfully and knowingly refused to appear at trial and waived his right to counsel and his right to be present at trial.  We also conclude that, under these circumstances, the trial court did not have a duty to readvise Jackson of the right to counsel or the perils of self-representation when it revoked Jackson’s attorney’s pro hac vice status because there was no indication that Jackson intended to proceed pro se or could not hire another attorney.

Id. at 497-98.  The Court concluded by stating, “[w]e cannot expect a trial court to hunt down a defendant to admonish him about the dangers and disadvantages of self-representation if the defendant has made no indication to the trial court that he intends to proceed pro se and then subsequently does not show up for trial.”  Id. at 501.

We believe our decision is also consistent with case law in this state where our appellate courts have found a defendant’s conduct constituted a waiver of his right to counsel.  See State v. Cain, 277 S.C. 210, 210-11, 284 S.E.2d 779, 779 (1981) (inferring waiver of counsel and affirming defendant’s conviction and sentence where defendant, who was tried in absentia and without counsel for third-offense driving under the influence, failed to fulfill the conditions of his appearance bond and neglected to keep in contact with his attorney despite knowing the trial was imminent); see also State v. Jacobs, 271 S.C. 126, 126-28, 245 S.E.2d 606, 607-08 (1978) (inferring defendant waived his right to counsel where:  (1) trial court allowed defendant, a non-indigent, reasonable time to retain counsel; (2) trial court urged defendant on several occasions to retain counsel and provided defendant access to a telephone and additional time to make the arrangements; (3) defendant on the day of trial did not name his attorney; and (4) defendant failed to make a sufficient showing of reasons for his failure to have counsel present at trial); State v. Gill, 355 S.C. 234, 245, 584 S.E.2d 432, 437-38 (Ct. App. 2003) (inferring defendant waived his right to counsel where defendant failed to retain counsel for trial despite his repeated assurances to the court that he intended to hire private counsel and did not require the appointment of a public defender). [3]

Pride attempts to distinguish the above-referenced cases on the basis that the defendants in those cases were non-indigent.  We find this distinction to be unavailing.  Similar to the non-indigent defendants, Pride attempted to “play the system” in:  (1) refusing to retain counsel by the scheduled trial date; (2) giving repeated assurances to his court-appointed counsel and the prosecution up until the day of trial that he had retained a private attorney; and (3) failing to cooperate with his court-appointed counsel.  The fact that Pride may not have had the financial means to hire counsel has no bearing on our determination that Pride’s conduct was sufficient to constitute a waiver of the right to counsel.   Pride was appointed counsel, but voluntarily chose not to utilize assigned counsel despite his knowledge that he had not retained another attorney.  Cf. State v. Clay, 11 S.W.3d 706, 713 (Mo. Ct. App. 1999) (holding indigent defendant tried in absentia and without counsel impliedly waived his right to counsel and, therefore, the statutory requirement for a written waiver of right to counsel was not required).

We emphasize that our decision is limited to the specific facts of this case.  Here, the constitutional mandates regarding a defendant’s right to the assistance of counsel were satisfied in that Pride was in fact appointed counsel.  Pride, however, willingly chose to disregard this appointment in an attempt to procure counsel of his own choosing up until the day of trial.  Because we cannot overturn our state’s prior precedent that a waiver of a right to counsel may be inferred by a defendant’s conduct, we reluctantly hold Pride’s conduct was sufficient to try him in absentia and without counsel.

Despite our holding, we take this opportunity to express our displeasure with the policy of permitting a defendant to be tried in absentia and without counsel.[4]  Because the right to counsel is such a fundamental right, we believe the more prudent policy would be for a trial judge to decline to relieve counsel immediately prior to trial if a defendant is being tried in absentia.

Accordingly, Pride’s convictions and sentences are

AFFIRMED.

HUFF, J., concurs.

ANDERSON, J., dissents in a separate opinion.

ANDERSON, J., dissenting in a separate opinion

The majority concludes that Pride’s conduct was sufficient to waive his right to counsel.  I DISAGREE and VOTE to REVERSE AND REMAND.  

FACTUAL/PROCEDURAL BACKGROUND

Pride was indicted for possession of crack cocaine with intent to distribute (PWID) and PWID within proximity of a school.  When his case was called for trial on October 13, 2004, Pride was absent. 

Fletcher Smith, a private attorney, represented Pride on September 13, 2004, the first day of the term of court in which Pride’s case was originally scheduled for trial.  Smith moved to be relieved and the trial judge granted his motion.  Pride qualified for representation by the public defender, and William All was appointed.

On October 11, 2004, Pride reported for roll call at the Union County courthouse, where he was arrested on another charge.  At that time he informed All that Smith would again represent him.  Pride allegedly intended to deliver $5000 to Smith after roll call. 

Pride was released from custody later that evening.  The next day All advised Pride that Smith needed to review the pre-trial motions the solicitor intended to make.  Pride told All that Smith would, in fact, appear at the courthouse.  Later All learned from Smith’s office that Pride had attempted to retain Smith but had not tendered the full $5000 payment.  On the morning of trial, All discovered through the solicitor’s office that Smith did not represent Pride.

The solicitor moved to try Pride in his absence.  The trial judge asked All if he would like to move to be relieved as counsel.  All hesitated because of his ethical obligation to Pride, but he eventually made the motion for relief.  The trial judge found Pride waived his right to counsel by his conduct and granted All’s motion.  The trial proceeded in Pride’s absence, without counsel, and the jury convicted Pride of both charges.    

LAW/ANALYSIS

Pride contends the trial judge erred in concluding he waived his Sixth Amendment right to counsel by his conduct.  I agree.

 “The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment.”  Faretta v. California, 422 U.S. 806, 807 (1975).  “Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have.”  United States v. Cronic, 466 U.S. 648, 654 (1984).  The courts indulge every reasonable presumption against waiver of fundamental constitutional rights and do not presume acquiescence in the loss of fundamental rights.  Johnson v. Zerbst, 304 U.S. 458, 464 (1938). 

A criminal defendant may waive his Sixth Amendment right to counsel.  See e.g., State v. Thompson 355 S.C. 255, 262, 584 S.E.2d 131, 134 (Ct. App. 2003); State v. Boykin, 324 S.C. 552, 556, 478 S.E.2d 689, 690 (Ct. App. 1996).  A waiver is an intentional and voluntary relinquishment of a known right.  Thompson 355 S.C. at 262, 584 S.E.2d at 134 (citing United States v. Goldberg, 67 F.3d 1092, 1099 (3d Cir. 1995)).  The waiver of the right to counsel must be the product of a knowing, voluntary, and intelligent decision.  State v. Cabrera-Pena, 350 S.C. 517, 535, 567 S.E.2d 472, 482 (Ct. App. 2002).  “When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel.  For this reason, in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.”  State v. McLauren, 349 S.C. 488, 493, 563 S.E.2d 346, 348 (Ct. App. 2002) (quoting Faretta, 422 U.S. at 835). 

Although 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. (citing Adams v. U.S. ex rel. McCann, 317 U.S. 269, 279 (1942))  (emphasis supplied).  In order to effectuate a valid waiver of the right to counsel, the two-pronged Faretta test must be met in which the defendant is (1) advised of his right to counsel and (2) adequately warned of the dangers of self-representation.  Thompson 355 S.C. at 262, 584 S.E.2d at 134 (citing Prince v. State, 301 S.C. 422, 423-24, 392 S.E.2d 462, 463 (1990)).

Although waiver is most commonly understood as an affirmative verbal request, the intentional and voluntary relinquishment of the right to counsel may be inferred from a defendant’s conduct.  See  United States v. Goldberg, 67 F.3d 1092, 1099 (3d Cir.1995);  State v. Roberson, 371 S.C. 334, 339, 638 S.E.2d 93, 95 (Ct. App. 2006); Thompson, 355 S.C. at 262, 584 S.E.2d at 134; State v. Gill, 355 S.C. 234, 245, 584 S.E.2d 432, 438 (Ct. App. 2003); State v. Boykin, 324 S.C. 552, 556, 478 S.E.2d 689, 690 (Ct. App. 1996).   

A defendant’s failure to appear at trial, however, is not, by itself, sufficient to sustain the inference that he intentionally and voluntarily relinquished his right to counsel.  See State v. Roberson, 371 S.C. 334, 339, 638 S.E.2d 93, 95 (Ct. App. 2006).  Most courts have held the defendant must first be warned about conduct that may subsequently be treated as a waiver of counsel.  Boykin, 324 S.C. at 556, 478 S.E.2d at 691.  Moreover, “to the extent that the defendant’s [conduct is] examined under the doctrine of ‘waiver,’ there can be no valid waiver of the Sixth Amendment right to counsel unless the defendant also receives Faretta warnings.”  Goldberg, 67 F.3d at 1100 (citing United States v. Bauer, 956 F.2d 693 (7th Cir. 1992; United States v. Allen, 895 F.2d 1577 (10th Cir. 1990)). 

“The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.”  Reed v. Ozmint, 374 S.C. 19, 28, 647 S.E.2d 209, 214 (2007) (quoting Zerbst, 304 U.S. at 464).  The trial judge is responsible for ensuring 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.  State v. Brewer, 328 S.C. 117, 119, 492 S.E.2d 97, 98 (1997); Cabrera-Pena, 350 S.C. at 531, 567 S.E.2d at 480-81.

In the absence of specific inquiry on the dangers of proceeding without counsel, the requirements of a voluntary waiver will be satisfied if the record demonstrates the defendant’s decision to waive counsel was made with an understanding of the risks of self-representation.  Watts v. State, 347 S.C. 399, 402, 556 S.E.2d 368, 370 (2001).  However, where the record fails to demonstrate the defendant made an informed choice to proceed pro se, with “eyes open,” then a knowing and voluntary waiver of counsel is not effectuated and the case should be remanded for a new trial.  Id. at 402-03, 556 S.E.2s at 370.

In Thompson and Roberson, this court declined to infer the defendants’ conduct constituted waiver of counsel because the court had not advised either defendant of the dangers of proceeding without representation. 355 S.C. 255, 584 S.E.2d 131; 371 S.C. 334, 638 S.E.2d 93.  In Thompson, the defendant failed to appear for trial, although he appeared for roll call a number of times after his arrest.  355 S.C. at 260, 584 S.E.2d at 133.  He was tried in his absence, without counsel.  At sentencing, Thompson moved for a new trial because he was denied the right to counsel.  Thompson had not qualified financially for representation by the public defender, but he averred extenuating circumstances prevented his retaining private counsel.  In addition, he alleged inadequate notice of the trial date.  We reversed the trial judge’s denial of Thompson’s motion, finding his failure to appear was insufficient to infer a valid waiver of his right to counsel.  Id. at 260, 584 S.E.2d at 134.  We premised our conclusion on the fact that Thompson had not been advised, under Faretta, of the dangers of proceeding without representation of counsel.  Moreover, the evidentiary record did not indicate that Thompson understood the dangers of self-representation.

          Similarly, the defendant in Roberson was tried in his absence, without counsel, and convicted.  371 S.C. at 336, 638 S.E.2d at 94.  At sentencing he moved for a new trial on grounds he did not knowingly and voluntarily fail to appear for trial and he was denied his right to counsel.  Id.  The sentencing judge denied Roberson’s motion for new trial on the ground he was deprived of representation of counsel.  Id. at 337, 638 S.E.2d at 94.  We reversed and remanded for a new trial.  Because Roberson was not warned of the dangers of proceeding without counsel, the inference that his failure to appear constituted the intentional and voluntary relinquishment of his right to counsel was inappropriate.  Id. at 340, 638 S.E.2d at 96. 

The majority attempts to distinguish Thompson and Roberson from the case at bar, noting Thompson and Roberson were “pro se” defendants, while Pride was represented by appointed counsel.  The gist and gravamen of my dissonance with the majority is that Pride became a “pro se” in his absence without any notice whatsoever when the trial judge relieved Pride’s appointed counsel immediately before trial.  The trial judge prompted Pride’s attorney to make a motion to be relieved as counsel.  The attorney had obvious concernment in regard to his ethical obligations to Pride and voiced that position with some degree of certitude: 

Court: All Right . . . Mr. All,   where do you stand.  Do you wish to be, do you feel, I feel     that by his conduct you certainly have a right to move to be relieved because he has not cooperated with you in any way whatsoever and as has happened in other cases it appears that he’s sort of playing the attorney game so to speak and saying somebody represents him and they say they don’t; in any event, I certainly feel very comfortable making a   finding he’s    waived his right to counsel by his conduct and I am certainly not going to put you in a position of sitting there trying a case unprepared, particularly trying a case in someone’s absence when you are, have not had adequate conversation with your client due to his conduct.  So do you wish to, I know that’s an awful position for you to be in, but.
 
All: That is an awful position, Your Honor.  I was sitting here trying, sitting here the last 30 minutes running through my mind what to ask the Court because I feel an obligation in some manner to Mr. Pride even though he’s failed to fulfill anything in regards to the assistance and cooperation with our office, Your Honor.
 
Court: Well, let me interject and put this in your thinking.  He has pretty much indicated he doesn’t want you to represent him because he’s continued to say that he has retained and either gone by their office and tried to pay another lawyer yesterday, so I think you may need to factor in the fact that if you sort of, I hate to say this kind of language in court but you are sort of damned if you do and damned if you don’t because if you go forward then he’ll be saying he was represented by an attorney he didn’t want.  If you don’t go forward he’s going to say he didn’t have an attorney at all.
 
All: Well, Your Honor, I do make a motion to be relieved as counsel.  Your Honor, I would ask that before the Court starts the case with Mr. Pride that they have the Sheriff or the Bailiff or someone call his name. 
 
Court: We’ll do that.
 
All: I will be staying basically on stand by in case they find Mr. Pride and once they find him if he indicates that he wants an attorney, if the Court feels fit to appoint one, I will be here.  I’m not going to disappear.
 
Court: All right.  Well, I’m going to relieve you of counsel.  I think it would be egregious for the Court to require someone in this context who not only has not, who has made a valiant attempt to get prepared and by his client’s conduct been unable to do what he needs to do to be ready for trial and to put you in that spot would certainly not be fair.  And it’s his conduct that has created the, he has sort of hoisted on his own petard, he is a victim of his own conduct. . . .
 

The ruling of the trial judge judicially converted Pride from a represented defendant to a pro se defendant.  Irrefutably, the evidentiary record reveals that Pride desired representation by counsel.  Any ambivalence or equivocation by Pride related to the identity of his attorney, i.e. a hired attorney or the public defender.  Pride never indicated directly or indirectly that he desired to proceed pro se. 

Factually and legally the deprivation of an important constitutional right at this stage of the trial is troublesome and is infected with expository difficulty.  The judicial imprimatur and approbation placed by the majority upon the denial of this basic constitutional right at this temporal point in the trial is an improper circumspection of a defendant’s right to counsel as guaranteed by the South Carolina and United States Constitutions.

I hold the rule of law we applied in Thompson and Roberson is equally applicable here.  Under Faretta and its progeny, a defendant must be apprised of his right to representation and cautioned about the dangers of proceeding without representation before being convicted and imprisoned.  A valid waiver of counsel, either by affirmative, verbal request or by conduct, requires compliance with FarettaIn re Christopher H., 359 S.C. 161, 166-67, 596 S.E.2d 500, 503 (Ct. App. 2004).  The evidentiary record here is devoid of any indication the trial judge apprised Pride of his right to counsel, warned him of the dangers of proceeding without representation, determined he understood the dangers of self-representation, or cautioned him that his conduct may be treated as a waiver of counsel. 

Accordingly, I VOTE to REVERSE and REMAND for new trial.


[1]  Miranda v. Arizona, 384 U.S. 436 (1966).

[2]   Although Pride was tried in his absence and without counsel, we believe Pride only challenges the waiver of his right to counsel.  Accordingly, we confine our analysis to this limited issue. 

[3]   Interestingly, the Indiana Supreme Court referenced Cain and Gill in its decision.  The Court, however, found that Jackson’s case was different in that “[n]one of the cases involved a defendant who appeared with a lawyer but then disappeared for trial, a clear finding by the trial court that the defendant willfully and voluntarily missed his own trial, and no suggestion that the defendant would not hire his own attorney.” Jackson, 868 N.E.2d at 500-01.  We agree with this assessment and also find that Pride’s willful conduct surpassed the conduct in our state’s cases which was sufficient to constitute an implied waiver of the right to counsel.

[4]   We note that our research reveals very few published decisions where a trial court permits a defendant to be tried in absentia and without counsel.  Significantly, the majority of the cases which present this factual scenario arise out of proceedings in this state’s trial courts.  See State v. White, 305 S.C. 455, 409 S.E.2d 397 (1991); State v. Williams, 303 S.C. 410, 401 S.E.2d 168 (1991); State v. Cain, 277 S.C. 210, 284 S.E.2d 779 (1981); State v. Fairey, 374 S.C. 92, 646 S.E.2d 445 (Ct. App. 2007); State v. Roberson, 371 S.C. 334, 638 S.E.2d 93 (Ct. App. 2006); City of Aiken v. Koontz, 368 S.C. 542, 629 S.E.2d 686 (Ct. App. 2006); State v. Thompson, 355 S.C. 255, 584 S.E.2d 131 (Ct. App. 2003); see also People v. McCombs, 866 N.E.2d 1200 (Ill. App. Ct. 2007); People v. Gargani, 863 N.E.2d 762 (Ill. App. Ct. 2007); Jackson v. State, 868 N.E.2d 494 (Ind. 2007); State v. Clay, 11 S.W.3d 706 (Mo. Ct. App. 1999); Commonwealth v. Ford, 715 A.2d 1141 (Pa. Super. Ct. 1998).  In light of the limited case law, we question whether our Supreme Court should, if given the appropriate factual circumstances, reconsider the policy apparently adopted at the trial court level.