State v. Lee

542 P.3d 974

2024 UT App 2

STATE of Utah, Appellee,

v.Timothy LEE, Appellant.

No. 20220208-CA

Court of Appeals of Utah.

Filed January 5, 2024

Seventh District Court, Monticello Department, The Honorable Don M. Torgerson, No. 191700205

Dain E. Smoland, Salt Lake City, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Connor Nelson, Attorneys for Appellee

Judge Amy J. Oliver authored this Opinion, in which Judges Michele M. Christiansen Forster and David N. Mortensen concurred.

Opinion

OLIVER, Judge:

¶1 Timothy Lee was unhappy with his defense counsel’s representation. After asking a few superficial questions, the district court allowed Lee to waive his right to assistance of counsel. Lee then represented himself at trial and was convicted on all charges. On appeal, he argues his waiver was not knowingly and intelligently made. We agree, vacate Lee’s convictions, and remand the case for a new trial.

BACKGROUND

¶2 Lee was speeding at 96 miles per hour in a 65-mile-per-hour zone on the highway when a San Juan County deputy sheriff (Deputy) activated his emergency lights to pull Lee over. Lee slowed but did not stop until another officer intercepted him four miles down the road. Lee’s vehicle registration was suspended because he did not have car insurance, and Deputy found THC gummies, oils, and pills in Lee’s car during an inventory search. Lee was charged with one felony and five misdemeanors: failure to respond to Deputy’s signal to stop, possession or use of a controlled substance, possession of drug paraphernalia, reckless driving, driving with a suspended license or registration, and driving without motor vehicle insurance.

¶3 At his initial appearance, the court denied Lee’s request for appointed counsel because he did not meet the financial qualifications. Lee later retained his own counsel (Counsel), who filed a discovery request and appeared at his arraignment. At the beginning of the arraignment, Counsel informed the court that she wanted to conference with Lee and have his case recalled that afternoon. But Lee stated, "I don’t want [Counsel] to be my lawyer." The court asked Lee whether he would hire new counsel, to which Lee said, "I haven’t made that decision today yet, but for right now, I’m choosing to represent myself." The court stated, "It’s unlikely that I’m going to let you represent yourself unless you can answer a few questions for me," and then set a hearing for two weeks later. But Lee stated, "We don’t have to wait two weeks … ask me the questions now." The court then initiated the following exchange:

The Court: Mr. Lee, how many criminal cases have you been involved with as a defendant?

Lee: This is my only one.

The Court: How many times have you been involved in any court cases, including civil cases as a party?

Lee: This is the only one here in Utah.

The Court: Have you ever been involved in another state in any kind of court case?

Lee: California.

The Court: Okay. And did you represent yourself in those cases or that case?

Lee: Actually, that case has been pending.

The Court: Are you representing yourself in that case?

Lee: We haven’t gone that far yet.

The Court: Have you ever represented yourself in a court case?

Lee: I’ve never represented myself in a court case.

The Court: Okay. Are you familiar with the Utah Rules of Criminal Procedure?

Lee: I know I have a constitutional right to represent myself in court.

The Court: That may or may not be accurate, so that’s what I’m asking you is: Are you familiar with the Utah Rules of Criminal Procedure?

Lee: Well, it depends on what you mean by "familiar."

The Court: Have you ever read them?

Lee: No.

The Court: Okay. Why do you think it’s in your best interest to represent yourself in this case?

Lee: Well, first of all, I don’t think [Counsel] has been working in my interest at all.

The Court: Aside from what [Counsel] did or hasn’t done, I’m wondering why you think it’s better that you represent yourself versus … hiring a different attorney to represent you?

Lee: Well, I’ll actually explain that when we go to trial because I would like to go to trial immediately.

The Court: Okay.

¶4 The court then "provisionally" found that Lee had knowingly and voluntarily waived his right to counsel but remained "not entirely convinced," promising to "have more of a discussion" about waiver at a scheduling conference one month later. But at that scheduling conference, this promised discussion consisted only of the court asking, "Mr. Lee, do you choose to still represent yourself in this case?" and Lee answering, "Yes sir." The court then set a trial date.

¶5 The day after the scheduling conference, Lee spray-painted the wall of the Public Safety Building in Monticello, Utah, with the words "Tim Lee versus Utah" and "justice delayed is justice denied, a trial 2,000 years in the making." Lee was found sitting on the front steps of the building with a can of black spray paint and $680 dollars in cash—"the exact cash amount needed to bail [himself] out on a Class B misdemeanor." The information against Lee was later amended to add a charge for graffiti.

¶6 Representing himself at trial, Lee questioned prospective jurors and, after being informed of the right by the court, exercised his peremptory strikes. Lee cross-examined several of the State’s witnesses and took the stand to testify in his own defense—though his testimony garnered multiple objections and interventions by the court. After being cross-examined, Lee gave a closing argument, in which he argued for his innocence. But the jury found him guilty on all seven charges.

ISSUE AND STANDARD OF REVIEW

[1] ¶7 On appeal, Lee argues he did not knowingly and intelligently waive his right to counsel. "Whether [a defendant’s] waiver was knowing and intelligent involves a mixed question of law and fact which we review for correctness, but with a reasonable measure of discretion given to the trial court’s application of the facts to the law." State v. West, 2023 UT App 61, ¶ 17, 532 P.3d 114 (cleaned up).

ANALYSIS

[2–6] ¶8 "Under both the United States and Utah Constitutions, a criminal defendant has the right to assistance of counsel." State v. West, 2023 UT App 61, ¶ 27, 532 P.3d 114 (cleaned up). "Concomitant with that right is the criminal defendant’s guaranteed right to elect to present one’s own defense." Id. (cleaned up). Relinquishing the right to counsel "may occur in three ways: true waiver, implied waiver, or forfeiture." State v. Bozarth, 2021 UT App 117, ¶ 33, 501 P.3d 116. "True waiver occurs when a defendant directly communicates a desire to proceed pro se." Id. ¶ 34. To be a valid true waiver, a defendant must "(1) clearly and unequivocally request self-representation and (2) act knowingly and intelligently, being aware of the dangers inherent in self-representation." Id. (cleaned up). Lee does not dispute that he clearly and unequivocally expressed his desire to represent himself. He argues only that he did not do so knowingly and intelligently.

[7–9] ¶9 Because "pro se defendants may often find themselves at a serious disadvantage in our legal system," it is "the solemn duty of the trial court" to ensure defendants exercise their right of self-representation "voluntarily, knowingly, and intelligently." State v. Hassan, 2004 UT 99, ¶¶ 21-22, 108 P.3d 695 (cleaned up). "In making this determination, the defendant 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." State v. Frampton, 737 P.2d 183, 187 (Utah 1987) (cleaned up). "The best way to ascertain if a defendant has the requisite knowledge of the legal mire [they] wish[ ] to wade into is for a court to engage in ‘penetrating questioning’" through a colloquy on the record. West, 2023 UT App 61, ¶ 31, 532 P.3d 114 (cleaned up).

[10] ¶10 Here, the court attempted—or at least began—a colloquy on the record at Lee’s arraignment. But, as both sides agree, it was only a "partial colloquy." In State v. Frampton, 737 P.2d 183 (Utah 1987) our supreme court cited a model list of sixteen questions to guide district courts in conducting such colloquies. Id. at 187 n.12 (quoting 1 Fed. Jud. Ctr., Bench book for U.S. District Court Judges, §§ 1.02-2 to -5 (3d ed. 1986)). At best, the court’s attempted colloquy addressed only two of Frampton’s recommended questions. The court asked Lee about his previous experience representing himself or someone else in any civil or criminal matters, which addressed Frampton’s second recommended question. See id. ("Have you ever represented yourself or any other defendant in a criminal action?" (cleaned up)). And the court asked Lee whether he was familiar with the Utah Rules of Criminal Procedure, addressing Frampton’s ninth recommended question. See id. ("Are you familiar with the … Rules of Criminal Procedure?" (cleaned up)). A colloquy "need not follow [Frampton’s] precise script." State v. Patton, 2023 UT App 33, ¶ 14, 528 P.3d 1249.¹ But the partial colloquy here did not show whether Lee had an "actual awareness of the risks of proceeding pro se under the particular facts and circumstances at hand" and "understood the consequences of waiver." State v. Smith, 2018 UT App 28, ¶¶ 19–20, 414 P.3d 1092 (cleaned up). Thus, the colloquy was inadequate.

[11, 12] ¶11 "In the absence of [an adequate] colloquy, we review the record de novo to determine whether the defendant knowingly and intelligently waived [the] right to counsel." West, 2023 UT App 61, ¶¶ 17, 33, 532 P.3d 114 (cleaned up). Our review of the record "must somehow otherwise show that the defendant understood the seriousness of the charges and knew the possible maximum penalty" and "should also show that the defendant was aware of the existence of technical rules and that presenting a defense is not just a matter of telling one’s story." Frampton, 737 P.2d at 188 (cleaned up).

¶12 In Frampton, our supreme court stated that,...