State v. Barnett

696 S.W.3d 421

STATE of Missouri, Respondent,

v.Dewey Austin BARNETT, Appellant.

No. ED 111041

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: May 21, 2024

Motion for Rehearing and/or Transfer to Supreme Court Denied June 24, 2024

Application for Transfer Denied September 3, 2024

Appeal from the Circuit Court of Jefferson County, 18JE-CR03039-01, Honorable Brenda Stacey, Judge

FOR APPELLANT: Stephanie A. Hoeplinger, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT: Andrew Bailey, Daniel N. McPherson, Evan J. Buchheim, P.O. Box 899, Jefferson City, Missouri 65102.

Before John P. Torbitzky, P.J., James M. Dowd, J., and Michael S. Wright, J.

OPINION

James M. Dowd, Judge

Appellant Dewey Barnett appeals his convictions of first-degree assault in violation of section 565.050¹ and armed criminal action in violation of section 571.015 (RSMo Supp. 2018) for stabbing Victim M.W. with a knife several times in her home on October 29, 2018, in Jefferson County, Missouri. The jury found him guilty following a trial in which Barnett represented himself after having waived his right to appointed counsel. The trial court sentenced him to consecutive terms of twenty-two years for the assault and five years for the armed criminal action, resulting in twenty-seven years in prison.

Barnett asserts several errors on appeal. First, Barnett claims that the trial court erred in accepting his waiver of counsel and allowing him to proceed pro se because his waiver was equivocal in that he repeatedly requested standby counsel. Next, Barnett claims that his right to counsel was violated because the trial court’s Faretta hearing was insufficient to establish that his waiver of counsel was knowing and voluntary. In his third point, he asserts that the trial court erred in failing to include the sudden passion language in the verdict director because he adduced evidence at trial that the assault on Victim resulted from "sudden passion arising out of adequate cause" and the failure to include the language misled the jury and deprived him of a fair trial. In his fourth point, Barnett asserts that the trial court erred at the sentencing hearing by failing to conduct a second Faretta hearing and to obtain another written waiver of counsel. Next, Barnett claims that the trial court erred in sentencing him to consecutive prison terms because the version of the applicable armed criminal action statute at the time of the crime did not mandate consecutive sentences though the trial court erroneously believed that it did. Lastly, Barnett claims the trial court erred because it mistakenly believed that it could not under Missouri law appoint standby counsel.

While we reject Points I, II, III, IV, and VI, we agree with Point V that the trial court erred in sentencing Barnett to consecutive terms because it did so under its erroneous belief that it was required to do so. Therefore, for the limited purpose of resentencing, we reverse and remand to allow the trial court to exercise its discretion only on the issue of whether to run Barnett’s sentences consecutively or concurrently.

Background

On October 29, 2018, Barnett stabbed Victim with a knife several times after entering her home in Jefferson County, Missouri, with her consent because she considered him to be a friend. Victim called 911 and as police arrived at the scene, they found Barnett near Victim’s home. Barnett admitted to police that he stabbed Victim, then he fled. Police arrested him after a brief foot pursuit. During the pursuit, Barnett dropped a knife with blood on it. He had blood on his clothes and on his hand. The court appointed Barnett an attorney from the public defender’s office after the State charged him with first-degree assault and armed criminal action. After that attorney pursued employment elsewhere, the court appointed a second attorney from the public defender’s office in early February 2020 and Barnett became dissatisfied with her in September 2020. When she retired, the court appointed another attorney and Barnett soon soured on him as well.

On December 13, 2021, Barnett filed a written request that the court remove his public defender and allow him to proceed pro se. On January 28, 2022, during a hearing regarding his bond, Barnett again asked the court to discharge his appointed counsel so that he could represent himself. The court told him that it would consider this request at a later date. On March 28, 2022, during a pre-trial conference, Barnett cited Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) and again invoked his constitutional right to represent himself. During this exchange, the court asked Barnett, "So my understanding is that you want to proceed pro se without a lawyer?" Barnett confirmed the court’s understanding. Later during that appearance, Barnett again told the court that he wanted his public defender off the case and reminded the court that he had invoked his constitutional right to represent himself four months prior.

The court then proceeded to a Faretta hearing during which the court described the nature of the charges and the rights Barnett sought to waive in order to ensure the waiver was knowing and voluntary. During the hearing, Barnett asked, "I have a right to hybrid counsel; correct?" The court incorrectly told Barnett that Missouri did not allow hybrid, or standby, counsel. Barnett’s counsel, who still represented him at the time, explained to the court that although standby counsel is disfavored, he was not aware of any black and white rules regarding the issue. The court again asked Barnett, "You do not want a lawyer? Is that right, Mr. Barnett?" He replied, "Not from Hillsboro Public Defender’s Office I don’t, no." After asking a few more questions, the court found that Barnett knowingly, voluntarily, and intelligently waived his right to counsel and granted his public defender leave to withdraw. Barnett also signed a waiver-of-counsel form drafted pursuant to section 600.051.

On May 4, 2022, during another pre-trial conference, the court again asked Barnett if he was certain that he wanted to proceed without a lawyer. Barnett referenced his previous request for standby counsel which the court again rejected based on its belief that Missouri did not allow standby counsel for pro se defendants. Barnett reiterated his unwillingness to be represented by the public defender’s office, claiming "I feel that to even have a fair chance I’d have to represent myself." The court warned Barnett that waiving his right to counsel was to "knowingly proceed in ignorance into the labyrinth of the law without the assistance of a trained guide" and gave him examples of why proceeding without a lawyer was a bad idea. Barnett told the court that he understood. The court then explained the range of punishment for the crimes. Barnett then signed a second waiver of counsel which included the potential range of punishment.

On June 8, 2022, trial began. Victim, several police officers, and a criminalist from the Missouri highway patrol all testified for the State. At various points during trial and outside the presence of the jury, Barnett expressed frustration with the court because he was having difficulty cross-examining witnesses and introducing evidence. He again invoked the notion of standby counsel because he did not know what he was doing.

Barnett did not call any witnesses and he moved for judgment of acquittal at the close of the State’s case and at the close of all evidence based on his claims that (1) the State failed to prove that the knife police found at the scene was the knife used to stab Victim, (2) there was unknown DNA on the knife, and (3) not all the blood found at the crime scene was tested so as to exclude other culprits. The court denied both motions, but told Barnett that he could present all of those points during closing argument. The next day, the court held the instruction conference before submitting the case to the jury. Barnett did not make any objections during the instruction conference. The jury found Barnett guilty on both counts and on August 8, 2022, the court sentenced Barnett to consecutive terms of twenty-two years for the first-degree assault conviction and five years for the armed criminal action.

This appeal follows.

Standard of Review

[1–3] To preserve a constitutional claim of error, the claim must be raised at the earliest opportunity possible. State v. Teter, 665 S.W.3d 306, 312 (Mo. banc 2023) (internal quotations omitted). In order to preserve other claims of error for appellate review, the errors must be raised in post-trial motions. Id. In general, unpreserved claims may only be reviewed for plain error. Id.

[4–8] "The threshold issue in plain error review is whether the circuit court’s error was facially evident, obvious, and clear. If the appellant establishes a facially evident, obvious, and clear error, then this Court will consider whether the error resulted in a manifest injustice or miscarriage of justice. To obtain a new trial on direct appeal based on a claim of plain error, the appellant must show the error was outcome determinative." State v. Wood, 580 S.W.3d 566, 579 (Mo. banc 2019) (internal quotations omitted). In other words, "[t]o hold that a miscarriage of justice or a manifest injustice occurred, we must determine that there is a reasonable probability that the jury’s verdict would have been different, had the error not taken place." State v. Roper, 136 S.W.3d 891, 903 (Mo. App. W.D. 2004). Plain error review, however, is discretionary and "this Court will not use plain error to impose a sua sponte duty on the trial court to correct Defendant’s invited errors." State v. Brandolese, 601 S.W.3d 519, 531 (Mo. banc 2020).

[9] Furthermore, "[a] defendant who proceeds pro se is bound by the same rules as a party represented by counsel." Id. (quoting Franklin v. State, 24 S.W.3d 686, 692 (Mo. banc 2000)). We cannot hold pro se...