S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
James Earl Reed, Appellant.
Appeal From Charleston County
William L. Howard, Sr., Judge
Opinion No. 24826
Heard October 22, 1997 - Filed July 27, 1998
AFFIRMED
Chief Attorney Daniel T. Stacey, and Deputy Chief
Attorney Joseph L. Savitz, III, both of South Carolina
Office of Appellate Defense, of Columbia, for
appellant.
Attorney General Charles M. Condon, Deputy
Attorney General John W. McIntosh, and Assistant
Deputy Attorney General Donald J. Zelenka, of
Columbia; and Solicitor David P. Schwacke, of North
Charleston, for respondent.
FINNEY, C.J.: Appellant James Earl Reed, was convicted of
murdering his former girlfriend's parents. Appellant was sentenced to death.
This appeal consolidates appellant's direct appeal with the mandatory review
provisions of S.C. Code Ann. 16-3-25 (1985). We affirm.
FACTS
A public defender and a private attorney were appointed to
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STATE v. REED
represent appellant. A hearing was held to determine whether appellant was
competent to stand trial. Judge Howard concluded after the hearing that
appellant was competent to stand trial. Subsequently, appellant requested
to represent himself. After a hearing, the trial judge found appellant's
request for self-representation was freely and voluntarily made. The private
attorney was relieved of representation and the public defender was
appointed to serve as standby counsel. Appellant represented himself during
the guilt phase and waived his right to testify. The jury found him guilty of
both murders.
Before the penalty phase began, appellant sought to change his
relationship with standby counsel such that appellant would give the opening
statement and counsel would continue. Appellant claimed he would be too
emotional to cross-examine the victims' family. The trial judge refused to
appoint counsel because it was too late in the proceeding and counsel would
be unable to adequately prepare on short notice. The judge concluded that
appellant was not entitled to either the appointment of counsel or to have
standby counsel cross-examine the victim-impact witnesses. Standby counsel
objected on the basis that appellant was not competent to represent himself
at sentencing and asked to be appointed. The trial judge declined to appoint
any counsel for appellant at sentencing since appellant had waived his right
to counsel. At the conclusion of the penalty phase, the jury recommended
and the judge sentenced appellant to death for both murders.
ISSUES
I. Was it error to find appellant competent to stand trial
and waive his right to counsel?
II. Was it error to allow appellant's statement into evidence?
III. Was it error to refuse to appoint counsel to represent
appellant at sentencing?
IV. Was it error to fail to obtain a waiver of appellant's right
to testify at the sentencing phase?
DISCUSSION
I. Appellant argues that the trial court erred in finding him
competent to stand trial and waive his right to counsel. We disagree.
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STATE v. REED
The test for determining whether a criminal defendant is
competent to stand trial is "whether he has sufficient present ability to
consult with his lawyer with a reasonable degree of rational understanding
and whether he has a rational as well as a factual understanding of the
proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S.Ct.
788, 4 L.Ed.2d 824 (1960). The defendant bears the burden of proving his
incompetence by a preponderance of the evidence. State v. Nance, 320 S.C.
501, 466 S.E.2d 349, cert. denied, 116 S.Ct. 2566 (1996). The test is not
whether the defendant is actually cooperating with his lawyer, but rather if
he has the mental capacity to do so. State v. Bell, 293 S.C. 391, 360 S.E.2d
706 (1987), cert. denied, 484 U.S. 1020 (1988). The trial court's
determination of competency will be upheld if it has evidentiary support and
is not against the preponderance of the evidence. State v. Nance, supra.
Dr. Behrmann examined appellant during his two month
hospitalization at Hall Institute. Dr. Behrmann concluded that within a
reasonable degree of medical certainty, appellant was competent to stand trial
and had the ability to understand the nature of criminal proceedings. In Dr.
Behrmann's opinion, appellant had the ability to understand the charges
against him and to assist his counsel. Dr. Behrmann did not find appellant
to be suffering from paranoia but concluded his failure to cooperate with
appointed counsel was voluntary. Dr. Behrmann subsequently examined
appellant for about forty-five minutes several months prior to trial. In Dr.
Behrmann's opinion, appellant continued to be competent to stand trial. He
concluded that appellant had a factual knowledge of the charges against him,
the potential penalty he faced and his options in pleading. Dr. Behnnann did
not find a mental illness or that appellant's decisions arose out of a
delusional process. During appellant's hospitalization, staff observed that he
was able to interact with staff and other patients normally and did not
demonstrate a guarded, distrustful, suspicious kind of behavior normally
expected from a person with a paranoid process.
The trial judge concluded that appellant had the factual
understanding of the charges against him and a rational understanding of the
proceedings and how the court works, and the roles of the various
participants. The judge was convinced by the medical reports and testimony
that appellant does not have a pervasive paranoia or paranoid behavior that
affects his ability to interact and to cooperate. The judge found appellant
had the present ability to rationally understand the proceedings and the
ability to consult with his attorneys with a reasonable degree of rational
understanding. His findings and conclusions were based on the forensic unit
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STATE v. REED
staffing report and the testimony of Dr. Behrmann and associates. The
judge also found persuasive the staffing entries which showed appellant's
ability to cooperate. In view of the evidentiary support in the record, we
uphold the trial court's determination of competency. State v. Nance, supra.
After the court found appellant competent to stand trial, appellant
moved to waive representation by appointed counsel and sought to represent
himself The trial judge questioned appellant in camera about his knowledge
of the proceedings and what it would mean to represent himself rather than
have representation by two capital trial qualified attorneys. The trial judge
warned appellant of the dangers and disadvantages of self-representation.
Appellant stated that he understood what he was waiving but still chose to
waive counsel.
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.
2525, 45 L.Ed.2d 562 (1975). 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." Id. 422 U.S. at
834. 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), cert.
denied, 502 U.S. 1103 (1992). 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, supra. The ultimate test of whether a defendant has made
a knowing and intelligent waiver of the right to counsel is the defendant's
understanding. Graves v. State, 309 S.C. 307, 422 S.E.2d 125 (1992). The
only relevant inquiry is whether the defendant has made a knowing and
intelligent waiver of the right to counsel. Faretta, supra. There is no
prohibition against a capital defendant knowingly and intelligently waiving
the right to counsel. State v. Brewer, 328 S.C. 117, 492 S.E.2d 97 (1997).
A decision can be made intelligently, with an understanding of the
consequences, without the decision itself being a wise one. Id.
The trial judge held several hearings to determine whether
appellant understood what it meant to represent himself and to waive the
appointment of experienced counsel. The judge informed appellant of the
dangers and disadvantages of self-representation. Appellant continued to
assert that he understood what he was waiving and demonstrated to the
judge that he was making a knowing, intelligent perhaps unwise, voluntary
decision to represent himself. Accordingly, the trial court did not err in
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STATE v. REED
accepting appellant's waiver of his right to counsel.
II. Appellant contends the trial court erred in allowing his
statement into evidence where his invocation of the right to remain silent
was not honored. We disagree.
An exculpatory or inculpatory statement obtained as a result of
custodial interrogation is inadmissible unless the person was advised of and
voluntarily waived his rights under Miranda v. Arizona.1 If a defendant was
advised of his Miranda rights, but nevertheless chose to make a statement,
the "burden is on the State to prove by a preponderance of the evidence that
his rights were voluntarily waived." State v. Kennedy, 325 S.C. 295, 479
S.E.2d 838 (1996). Law Enforcement officers are not required to terminate
an interrogation unless there is an unambiguous invocation of the right to
remain silent. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129
L.Ed.2d 362 (1994).
The State asserts that appellant did not indicate a clear,
consistent and unequivocal expression of a desire to remain silent and
terminate questioning. Detectives Coaxum and Hale testified that they read
appellant his Miranda rights and obtained appellant's signature on the
advisement of rights form. Appellant initially failed to respond to questions.
The detectives talked with appellant for about 20 to 30 minutes. Detective
Coaxum continued talking to appellant after Detective Hale left the room.
During that time appellant indicated involvement in the murders. Detective
Hale returned to the room and appellant continued discussing facts
concerning the murder and did not invoke his right to silence. Appellant
agreed to cooperate with the officers in finding the murder weapon. After
returning to the sheriffs office, a written statement was made by Detective
Hale based on appellant's verbal statement. The statement was read to
appellant and signed by him. The officers testified that appellant did not ask
for an attorney. Detective Hale stated that the only time the subject of an
attorney came up was when appellant made a "vague statement" to the effect
that he wondered who would be his attorney.
The trial judge concluded the State had shown by a
preponderance of the evidence that the statement was knowingly,
intelligently, and voluntarily given after waiver of his rights and appellant
1 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
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STATE v. REED
was accorded all of the procedural safeguards required under Miranda v.
Arizona. The trial judge's determination of the voluntariness will not be
disturbed unless so manifestly erroneous as to show an abuse of discretion
amounting to an error of law. State v. Kennedy, supra. The trial court did
not err in denying the motion to suppress as the State met its burden of
showing that appellant's statement was voluntarily and freely given.
III. Appellant asserts the trial court erred in refusing to appoint
standby counsel to represent him at sentencing. We disagree.
At the conclusion of the guilt phase, appellant asked to have
standby counsel takeover and cross-examine the state's witnesses after
appellant made the opening argument. The trial judge interpreted the
request as asking the court to appoint counsel to undertake representation
of appellant. Standby counsel stated that while he would do his best to
prepare to cross-examine witnesses, he was not prepared to represent
appellant during the sentencing phase. Standby counsel stated he had not
investigated the case in reference to victim impact evidence or mitigation.
The court concluded that it would be a hybrid form of
representation placing standby counsel in the position of not being fully
prepared to cross-examine witnesses without delaying the trial. The court
found it would delay the proceeding because counsel would need time to
prepare and the continued sequestration of the jurors would not be possible.
The court declined to appoint counsel but allowed counsel to sit beside
appellant as standby counsel and aid appellant to the extent he desired.
A trial judge is not required to permit hybrid representation, i.e.
representation partially pro se and partially by counsel. McKaskle v.
Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); State v.
Sanders, 269 S.C. 215, 237 S.E.2d 53 (1977). A criminal defendant may
initially assert his right to self-representation for reasons that later prove
unsound. Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989). While the right
to counsel once waived is no longer absolute, there is a strong presumption
that a defendant's post-trial request for the assistance of counsel should not
be refused. Id. The court in Menefield. found that appellant was entitled to
counsel after waiving his right prior to sentencing. The court noted however,
there are times when the criminal justice system would be poorly served by
allowing the defendant to reverse his waiver at the last minute particularly
where delay would result. Further, the court noted the distinction between
delay on the eve of trial and delay at the time of a post-trial hearing.
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STATE v. REED
Menefield, supra.
In United States v. Holmen, 586 F.2d 322 (4th Cir. 1978) the
court found it was error not to allow appellant to withdraw his waiver of
counsel and have counsel appointed at the sentencing stage. However, in
Holmen, the sentencing stage was a separate proceeding unlike the continued
proceeding in the instant case involving a sequestered jury. The trial court
here was faced with allowing standby counsel to step in and cross-examine
the witnesses on less than twenty-four hours preparation. Judge Howard
was concerned with appellant being entitled to effective assistance of counsel.
McMann v. Richardson., 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763
(1970)(the right to counsel includes the right to effective assistance of
counsel). The trial judge did not err in denying appellant's request to have
standby counsel represent him on the eve of sentencing.
IV. Appellant contends the trial court erred in failing to obtain
a waiver of his right to testify at the sentencing phase. We disagree.
During the guilt phase, the trial judge informed appellant at
length of his right to testify and obtained a waiver on the record of his
intention not to testify during that phase. The judge did not obtain a specific
waiver of the right to testify during the penalty phase. However, appellant
indicated that he did not intend to testify during the sentencing phase. A
capital defendant has the right to testify at the sentencing phase. State v.
Ray, 310 S.C. 431, 427 S.E.2d 171 (1993). The waiver of a constitutional or
statutory right requires a showing on the record that the defendant made the
waiver knowingly and intelligently. Id. 427 at 174. The references in the
record demonstrate that appellant clearly waived his right to testify.
CONCLUSION
Appellant's convictions and sentences are affirmed. We have
conducted the proportionality review pursuant to S.C. Code Ann. 16-3-25
(1985). The evidence indicates the sentences were not the result of passion,
prejudice, or any other arbitrary factor, the evidence supports the finding of
the aggravating circumstance; and the sentences are not disproportionate to
that imposed in similar cases. State v. Williams, 321 S.C. 327, 468 S.E.2d
626 (1996).
AFFIRMED.
TOAL, MOORE, WALLER and BURNETT, JJ. , concur.
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