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Self Representation At Trial And Due Process Implications

People v. Stone

2014 NY Slip Op 00901

New York Court of Appeals

Decided February 13, 2014

Issue: Whether defendant’s constitutional rights were violated by the trial court’s failure to sua sponte inquire into his mental capacity to represent himself prior to granting his application to proceed pro se.

Holding: Under New York law a defendant’s mental capacity may be taken into account in the Faretta context, although the trial court need not conduct a formal “competency” hearing prior to adjudicating a self-representation request.

Consistent with Edwards, New York courts can, in appropriate circumstances, deny a self-representation request if a severely mentally-ill defendant who is competent to stand trial otherwise lacks the mental capacity to waive counsel and proceed pro se.

Facts: Defendant was tried on two counts of burglary after he twice trespassed into secure areas of a Hilton Hotel, on one occasion stealing a cell phone. At his jury trial, defendant expressed distrust of his lawyer and asked to proceed pro se.

Over the course of two days, several lengthy colloquies ensued between the court, defendant and assigned counsel wherein the court repeatedly advised defendant of the perils of self-representation and attempted to persuade him to work with his assigned counsel.

Noting that it was evident that defendant was an intelligent man, although lacking in legal training, the court ultimately granted his request to represent himself.

With defendant’s consent, the court directed that assigned counsel remain available to defendant throughout the proceedings as stand-by counsel. Defendant represented himself through jury selection,[FN1] an opening statement and part of the cross-examination of the People’s first witness. But he then advised the court that he was “nervous,” and wanted stand-by counsel to take over the defense, ending the period of pro se representation.

Defendant was convicted of two counts of burglary but acquitted of possession of burglar’s tools. About two months after the trial concluded, a social worker hired by the defense to evaluate defendant for sentencing purposes sent a letter to the court suggesting defendant might be suffering from an undiagnosed mental health problem.

The People advised the court that defendant’s family members reported that he had developed some “psychiatric issues,” prompting the court to order a CPL 730.30 examination. When interviewed by psychiatric experts, defendant was found to be disoriented and downcast, and to be experiencing auditory hallucinations as well as “a complex delusional system about his food being poisoned in prison.” He was diagnosed with psychotic disorder, and determined not fit to proceed to sentencing. The court adopted the finding of incapacity in January 2010 but, after defendant was treated with medication, his condition improved and, in April 2010, he was determined to have recovered his competency.

The court sentenced defendant to concurrent terms of seven years in prison, plus five years post-release supervision, for each count.

Legal Analysis: The Due Process requirement that a criminal defendant may not be prosecuted unless competent to stand trial under the standard articulated in Dusky v United States (362 US 402 [1960][defendant must possess “a rational as well as factual understanding of the proceedings” and have “sufficient present ability to consult with his [or her] lawyer with a reasonable degree of rational understanding”. In New York, this baseline mental capacity standard has been codified at CPL 730.10(1). The People must establish competency to stand trial by a preponderance of the evidence (People v Mendez, 1 NY3d 15, 19 [2003]). But the burden arises only when there is some basis to question defendant’s mental capacity because the People are otherwise entitled to rely on the presumption that a defendant is competent to proceed (People v Gelikkaya, 84 NY2d 456 [1994]).

Also implicated is the Sixth Amendment right of a criminal defendant to self-representation at trial, recognized in Faretta v California(422 US 806 [1975]). It is well-settled that an application to proceed pro se must be denied unless defendant effectuates a knowing, voluntary and intelligent waiver of the right to counsel, People v McIntyre, 36 NY2d 10, 17 [1974]). To this end, trial courts must conduct a “searching inquiry” to clarify that defendant understands the ramifications of such a decision (see People v Providence, 2 NY3d 579 [2004]).

On appeal, defendant contended that the trial court’s denial of his request to proceed pro se violated his Sixth Amendment right to represent himself under Faretta. United States Supreme Court disagreed, holding that it is constitutionally permissible for a state to impose a “mental-illness-related limitation on the scope of the self-representation right” (Edwards, 554 US at 171). The Court explained:

“Mental illness itself is not a unitary concept. It varies in degree. It can vary over time. It interferes with an individual’s functioning at different times in different ways . . . In certain instances an individual may well be able to satisfy Dusky‘s mental competence standard, for he will be able to work with counsel at trial, yet at the same time he may be unable to carry out the basic tasks needed to present his own defense without the help from counsel”.

Thus, the Court concluded that a state may — without offending the Constitution — deny a minimally-competent defendant’s request to proceed pro se based on a determination that, due to severe mental illness, he or she does not possess the competency for self-representation at trial.

Although a court has discretion to require representation by counsel in certain circumstances despite a request to proceed pro se, it does not follow that the Constitution is offended if that discretion is not exercised.

When there is a basis to question defendant’s mental capacity, we indicated that the trial court should consider that question as part of the “searching inquiry” designed to determine the efficacy of defendant’s waiver of counsel. To be sure, we did not characterize this as a distinct “competency inquiry,” declining to define “separate and distinct levels of mental capacity” (id. at 353). But we went on to explain:

“By such rejection, however, we do not intend to suggest that mental capability of the defendant at the time of waiver is irrelevant. Quite the contrary. As in other instances of waiver, the determination that it was intelligent and voluntary, and thus legally effective, may well turn, even in major part, on the mental capability of the defendant at the time in the circumstances” (id. at 354).

Hence, under New York law a defendant’s mental capacity may be taken into account in the Faretta context, although the trial court need not conduct a formal “competency” hearing prior to adjudicating a self-representation request.

Consistent with Edwards, New York courts can, in appropriate circumstances, deny a self-representation request if a severely mentally-ill defendant who is competent to stand trial otherwise lacks the mental capacity to waive counsel and proceed pro se.

The inquiry then becomes whether the trial court in this case abused its discretion in declining to exercise that prerogative.

Indeed, the situation presented in this case is significantly different from either Edwards or Reason. In each of those cases, the trial court was aware at the time of the Faretta request that defendant suffered from a serious mental illness. In contrast, here, when defendant expressed a desire to represent himself, the trial court had no reason to question his mental health, much less a basis to believe that defendant suffered from an illness severe enough to impact his ability to waive counsel and proceed pro se. And as we have already held, the fact that a defendant later develops competency issues is not, without more, a basis to question his mental capacity at a prior time during the criminal [*7]proceeding (see Gelikkaya, 84 NY2d at 460).

We are also unpersuaded that the fact that defendant at times engaged in obstreperous conduct or emotional outbursts during the trial should have alerted the court to a competency problem since disruptive behavior of this nature by a criminal defendant is commonplace and not necessarily indicative of mental impairment. To the extent defendant’s representation may have been inartful —
and, in many respects, it was as capable as could be expected from a pro se defendant — there is no basis to interpret it as evidence of a serious mental illness rather than the lack of skill typical of a lay person untrained in trial tactics or procedure.

On this record, it cannot be said that the trial court abused its discretion in failing to undertake a particularized assessment of defendant’s mental capacity when resolving defendant’s request to proceed pro se. And since no claim is (or could be) made here that the court’s “searching inquiry” was otherwise deficient, there is no basis to disturb the conviction on Faretta grounds.

Accordingly, the order of the Appellate Division should be affirmed.

Stephen Preziosi is a criminal appeals lawyer in New York City’s Times Square.  His firm handles both New York Criminal Appeals and Federal Criminal Appeals throughout the nation.