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State v. McCorvey

Supreme Court of Louisiana

April 7, 2017

STATE OF LOUISIANA
v.
DAN MCCORVEY

         ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

          JOHNSON, C.J. would grant the writ application and assigns reasons.

         Defendant 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.

         Considering 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.

         Both 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.

         This 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 do?
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 it.
Attorney: Your Honor, as co-counsel, Your Honor, I'm asking again for a defense ...

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