ON REVIEW FROM COURT OF APPEALS CASE NOS. 2010-CA-000322-MR AND 2010-CA-001905-MR FAYETTE CIRCUIT COURT NO. 09-CR-00237
COUNSEL FOR APPELLANT/CROSS-APPELLEE: Jack Conway Attorney General of Kentucky Bryan Darwin Morrow Assistant Attorney General.
COUNSEL FOR APPELLEE/CROSS-APPELLANT: Robert Chung-Hua Yang Assistant Public Advocate.
Following a jury trial in the Fayette Circuit Court—a retrial of a proceeding that had ended in a mistrial two months earlier—Vittorio Martin was convicted of second-degree burglary. Martin was found to have unlawfully entered, through an attic crawl space, the apartment of his girlfriend's neighbor, where he proceeded to steal certain household items. In accord with the jury's recommendation, the trial court sentenced Martin to eight years in prison. It then suspended the imposition of that sentence and placed Martin on probation. Less than seven months later, Martin's noncompliance with the terms of Fayette County's drug court program resulted in the revocation of his probation and the reimposition of his eight-year prison sentence. Martin appealed both his burglary conviction and his probation revocation to the Court of Appeals. Although that court found no merit to Martin's other claims of error, it agreed with Martin that the trial court erred "when it failed to conduct a Faretta [v. California, 422 U.S. 806 (1975)] hearing, " to inquire into Martin's desire to serve as his own attorney. On the basis of this purported error, the Court of Appeals reversed Martin's conviction and remanded the matter to the Fayette Circuit Court for additional proceedings.
We granted the Commonwealth's motion for discretionary review to consider whether Martin's filing of pro se pre-trial motions amounted to an invocation of his constitutional right to waive the assistance of counsel and to represent himself and thus triggered the trial court's duty to conduct a Faretta hearing. We conclude that because the trial court did not disregard an unequivocal request to dispense with counsel and to proceed pro se, it did not violate Martin's constitutional rights. Accordingly, we reverse that portion of the Court of Appeals' decision holding otherwise and remand to the trial court for the reinstatement of Martin's conviction. We also granted Martin's cross-motion for discretionary review to consider his claim that he should not have been ordered to pay court costs, and, on that issue, we affirm the Court of Appeals' opinion.
On December 5, 2008, the Lexington Police Department received a report that an apartment in the 1700 block of Versailles Road in Lexington had been burglarized. The victim, whose apartment was number 624, showed the investigating officer how entry had apparently been gained from the attic crawl space through a hole that had been knocked in the bathroom ceiling. He described for the officer various items of his personal property that were missing, including a stereo radio. Three days later, Martin's girlfriend, the occupant of apartment number 623, reported to the officer that she suspected Martin of having perpetrated the burglary. She showed the officer a similar hole made in the ceiling of one of her closets and allowed him to search her apartment. Investigators soon discovered that on the day the burglary was reported Martin had pawned the missing radio, and they found one of Martin's fingerprints on a briefcase in the victim's apartment.
Martin was arrested on December 9, 2008, and on February 10, 2009 he was indicted for second-degree burglary. Kentucky Revised Statute (KRS) 511.030. Counsel was appointed to represent him, and he was arraigned two days later. Soon thereafter there began what became a steady stream of letters and pro se motions from Martin to the trial court. Initially these motions were limited to repeated requests for a bond reduction, but eventually they included, among others, a discovery request, a motion for a speedy trial, a motion to suppress evidence found in the girlfriend's apartment, and, following the mistrial, another speedy trial motion and several motions to dismiss the indictment on double jeopardy grounds. Many of these motions, it appears, the trial court simply denied as patently without merit. (Discovery had been provided; Martin had consented to the timely August and October trial dates; and the new trial was not barred because the mistrial had been sought by the defense for an evidentiary error in no way suggestive of prosecutorial bad faith.) Others, the motion to suppress for example, the court referred to Martin's counsel and denied upon counsel's declining to pursue them—counsel conceded, for example, that though warrantless the search of the girlfriend's apartment had proceeded only upon the girlfriend's written consent. Counsel was, however, no less persistent than Martin in requesting a bond reduction, and twice the court agreed to lower the bond amount. The second decrease, following the mistrial, led to Martin's release from jail, but within a month Martin had violated the terms of his release several times and so was reincarcerated.
Although the lion's share of Martin's correspondence with the court made no reference to counsel, a couple of times Martin complained that his attorney "doesn't want to represent me, " and that he had left Martin "to fight for myself." Also, as the Court of Appeals emphasized, early on in the proceedings, in May of 2009, Martin, obviously frustrated with the trial court's refusal to lower the bond amount, sent a letter to the court promising to have the court "removed from the case" and to report the court's "foul manner" to the Judicial Conduct Commission. In the same letter Martin announced that "as of now, [my attorney] is fired, I no longer require his services, he's done nothing for 5 months. I hereby request a new attorney." Martin then signed his next two motions, "Vittorio Martin, co-counsel." The Court of Appeals concluded that, collectively, Martin's frustration with counsel, his references to himself as co-counsel, and his numerous pro se motions sufficed to invoke his right to represent himself and thus triggered the trial court's duty under Faretta to inquire into Martin's pro se intentions. We agree with the Commonwealth, however, that none of the circumstances noted by the Court of Appeals, either alone or in combination with the others, obliged the trial court to hold a Faretta hearing.
I. Martin's Pro Se Filings and His Expressions of Frustration With Counsel Did Not Amount to a Request to Waive Counsel's Assistance.
The Sixth Amendment to the United States Constitution guarantees to criminal defendants the effective assistance of counsel. Gideon v. Wainwright, 372 U.S. 335 (1963); Strickland v. Washington, 466 U.S. 668 (1984). Implicit in that guarantee, the Supreme Court has held, is a defendant's correlative right to waive counsel and to conduct his or her own defense. Faretta, 422 U.S. at 806. Section 11 of our Kentucky Constitution likewise guarantees criminal defendants the assistance of counsel, Hill v. Commonwealth, 125 S.W.3d at 221, and not only provides for a correlative right of self representation, but allows as well for a partial waiver of counsel whereby an accused may '"specify the extent of services he desires, and he then is entitled to counsel whose duty will be confined to rendering the specified kind of services (within, of course, the normal scope of counsel services.)"' Hill, 125 S.W.3d at 225 (quoting Wake v. Barker, 514 S.W.2d 692, 696 (Ky. 1974)).
Because in the vast majority of cases a defendant's due process right to a fair trial will be better protected if the defendant proceeds with counsel's assistance rather than without it, under both constitutions a defendant is presumed to desire that assistance unless and until he unambiguously indicates otherwise. Faretta, 422 U.S. at 806; Hill, 125 S.W.3d at 221. Once he does so, the trial court is then obliged to conduct a hearing to ensure that any waiver of the defendant's right to counsel is both knowing and voluntary. Commonwealth v. Terry, 295 S.W.3d ...