OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH
JOHNSON, C.J. would grant the writ application and assigns
was found guilty by the district court of possession with
intent to distribute cocaine and adjudged a fourth-felony
offender. The court sentenced defendant to 10 years
imprisonment at hard labor. Defendant appealed his conviction
and sentence, arguing the district court erred by allowing
him to represent himself at trial without conducting a
hearing as required by Faretta v. California, 422
U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The court of
appeal affirmed defendant's conviction and sentence,
finding defendant's actions before and during trial
demonstrated he was capable of knowingly and voluntarily
choosing self-representation and that the arrangement most
resembled a hybrid-representation, in which defendant acted
in tandem with counsel, which did not require a
Faretta inquiry. State v. McCorvey, 15-0482
(La.App. 4 Cir. 2/3/16), 187 So.3d 41.
the facts of this particular case, I would vacate
defendant's conviction and sentence and remand this case
to the district court, finding the court of appeal erred by
concluding that the district court was not required to
conduct a Faretta inquiry.
the Louisiana and federal constitutions guarantee a criminal
defendant's right to assistance of counsel. Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963); State v. Brooks, 452 So.2d 149, 155 (La.
1984). Nevertheless, an accused may elect to waive the right
to counsel and represent himself. The assertion of the right
to self-representation must be clear and unequivocal.
See U.S. Const. Sixth Amend.; La. Const. art. I,
§ 13; Faretta, 422 U.S. at 835; State v.
Hegwood, 345 So.2d 1179, 1181-82 (La. 1977). And, the
relinquishment of counsel must be knowing and intelligent.
Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct.
1019, 1023 (1958); State v. Strain, 585 So.2d 540,
542-43 (La. 1991). While the United States Supreme Court has
expressly declined to "prescribe any formula or script
to be read to a defendant who states that he elects to
proceed without counsel, " Iowa v. Tovar, 541
U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004), the
accused "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." Faretta, 422 U.S. at 835.
court has explained that a district court "should advise
the accused of the nature of the charges and the penalty
range, should inquire into the accused's age, education
and mental condition, and should determine according to the
totality of the circumstances whether the accused understands
the significance of the waiver." Strain, 585
So.2d at 542. While a specific inquiry by the judge,
expressly addressing the disadvantages of self-representation
is clearly preferable, "[t]he critical issue on review
of the waiver is whether the accused understood the waiver.
What the accused understood is determined in terms of the
entire record and not just by certain magic words used by the
judge." Id. at 543. Moreover, in addressing a
co-counsel arrangement, this court has ruled that
"[h]ybrid representation in which a defendant acts in
tandem with counsel in questioning witnesses or in presenting
closing argument does not implicate Faretta."
State v. Mathieu, 10-2421 (La. 7/1/11), 68 So.3d
1015, 1019. However, to the extent a hybrid representation in
which a defendant and his attorney "act, in effect, as
co-counsel, with each speaking for the defense during
different phases of the trial, " results partially in
pro-se representation, "allowing it without a proper
Faretta inquiry can create constitutional
difficulties." Id. In this case, defendant
appeared for his bench trial with an attorney. The state
requested clarification of defendant's representation
status and the following exchange took place:
The court: [Defendant] said he's lead counsel.
Am I right? That's what you said.
Defendant: I don't have an attorney present.
I'm going to have to go with it, sir.
The court: That's what you said you wanted to
Defendant: That's fine. I don't have no
other choice. I'm ready to get this over with. I'm
trying to get out to help my father. My father need me.
The court: Okay. All right.
Defendant: I got her. She going to help me through
Attorney: Your Honor, as co-counsel, Your Honor,
I'm asking again for a defense ...