State of Tennessee v. Ralph Taylor Hopson

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs May 21, 2002

STATE OF TENNESSEE v. RALPH TAYLOR HOPSON

Direct Appeal from the Criminal Court for Claiborne County

No. 11331 E. Shane Sexton, Judge

No. E2001-02113-CCA-R3-CD

October 2, 2002

Defendant, Ralph Taylor Hopson, was indicted by the Grand Jury of Claiborne County for one count

of second degree murder and one count of attempted second degree murder. Prior to trial, Defendant

stated his desire to waive his right to representation by counsel and requested to proceed pro se. Four

days later, the trial court conducted an inquiry into Defendant’s ability to represent himself and

granted his request. Following a jury trial, Defendant was convicted of the offenses charged. The

trial court subsequently sentenced Defendant to twenty-five years for the second degree murder

conviction and ten years for the attempt conviction, to be served concurrently. In this appeal,

Defendant challenges both convictions on the ground that the waiver of his right to counsel was not

knowingly and intelligently made. In addition, Defendant contends that his sentence for the second

degree murder conviction is excessive. After a review of the record and applicable law, we conclude

that Defendant did not knowingly and intelligently waive his right to counsel and that the trial court

erred in determining Defendant’s sentences. Accordingly, we reverse the judgments of the trial court

and remand this matter for a new trial.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Reversed.

THOMAS T. WOODA LL, J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

NORMA MCGEE OGLE , JJ., joined.

Julie A. Rice, Knoxville, Tennessee (on appeal only); Ralph Taylor Hopson, pro se, (at trial); and

Martha J. Yoakum, District Public Defender; and Charles A. Herman, Assistant Public Defender,

Jacksboro, Tennessee (at trial as advisory counsel) for the appellant, Ralph Taylor Hopson.

Paul G. Summers, Attorney General and Reporter; Peter M. Coughlan, Assistant Attorney General;

William Paul Phillips, District Attorney General; Jared Effler, Assistant District Attorney General;

John Arnold Steakley, Assistant District Attorney General; and Todd Longmire, Assistant District

Attorney General, for the appellee, State of Tennessee.

OPINION

FACTUAL BACKGROUND

I. Pre-trial Proceedings

On March 31, 2000, Defendant’s counsel filed a motion to reevaluate Defendant’s

competency to stand trial (which was scheduled to commence on April 11). During the motion

hearing on April 3, 2000, Defendant’s counsel informed the trial court that he filed the motion

because Defendant had refused to talk to him or assist him in any way in preparing for the upcoming

trial. Defendant responded that he had been previously evaluated twice and found competent each

time and that his primary concern had to do with the competency of his attorney. Defendant

requested that the court grant him permission to represent himself, and the trial court scheduled a

hearing to determine whether this would be proper. The motion for reevaluation of Defendant’s

competency was denied.

Four days later, on April 7, 2000, a hearing took place for the trial court to determine whether

Defendant should be allowed to represent himself at trial. During the proceeding, the following

colloquy ensued:

THE COURT: Are you asking me again to allow you to let your appointed

counsel go and you can represent yourself?

[DEFENDANT]: Correct.

THE COURT: I said something before that you are entitled to do that if you

want to do that.

[DEFENDANT]: I remember that.

THE COURT: But I have to establish that you are making a knowing,

intelligent waiver of your right to counsel and I also want to

tell you that I am strongly trying to dissuade you from the

action.

[DEFENDANT]: Yes.

THE COURT: But I am not going to deprive you of your right to try yourself

if that is what you want to do. How old are you? Raise your

right hand, please.

(WHEREUPON, MR. HOPSON WAS DULY SWORN BY THE COURT.)

-2-

THE COURT: Okay. You will need to speak up good and loud because you

are on the record. State your name for the record.

[DEFENDANT]: Ralph Taylor Hopson.

THE COURT: Mr. Hopson, you are under indictment for second degree

murder and attempted first [sic] degree murder, is that right?

[DEFENDANT]: Correct.

THE COURT: And your case is scheduled for trial on the 11th of April, is

that right?

[DEFENDANT]: That is correct.

THE COURT: And you have indicated here today that you do not want to

have the attorneys that work for the Public Defender’s office

representing you, is that right?

[DEFENDANT]: That is correct.

THE COURT: Can you tell me - how old are you?

[DEFENDANT]: Forty-three (43).

THE COURT: And how much formal education do you have?

[DEFENDANT]: Approximately fourteen (14) years of education.

THE COURT: Okay. You have received a degree in high school, is that

right?

[DEFENDANT]: Correct.

THE COURT: And you have some post-graduate academics, is that right?

[DEFENDANT]: Correct.

THE COURT: Have you ever studied law in any way?

[DEFENDANT]: Nothing but within the jail, no.

-3-

THE COURT: Have you ever been represented by counsel at any point in a

criminal procedure?

[DEFENDANT]: Yes.

THE COURT: Do you understand that there are rules of practice in a

courtroom and there are certain rules that I have in this

courtroom concerning the way that you try cases in court?

[DEFENDANT]: I understand.

THE COURT: Have you ever seen the rules of practice in this courtroom?

[DEFENDANT]: No.

THE COURT: Okay. Well, I will have you some prepared and you can keep

those. You have never tried a case yourself, have you, on

behalf of you?

[DEFENDANT]: Yes sir, I have.

THE COURT: And was that here in this court, or was that in another?

[DEFENDANT]: Another court in ____________ County [sic], General

Sessions Court.

THE COURT: So, you are familiar with the settings in the courtroom, the

people who are involved?

[DEFENDANT]: Yes.

THE COURT: You understand that the State of Tennessee will be

represented by at least one Assistant Attorney General?

[DEFENDANT]: I do.

THE COURT: And they are not on your side?

[DEFENDANT]: No, I understand that.

THE COURT: Their--in fact, it is their job to try and convict you, you

understand that?

-4-

[DEFENDANT]: I understand.

THE COURT: You have appointed counsel as of now, Mr. Herman, who

represents the Public Defender’s Office for you. You

understand that as a matter of law, constitutional and

statutory, they are there to help you, to look out for your

interest? And can you speak up?

[DEFENDANT]: I understand completely.

THE COURT: Have you considered the possibility that you will be facing a

jury without the benefit of any legal training whatsoever?

[DEFENDANT]: Yes, I do.

THE COURT: Are you under the influence of any alcohol, drug or

medication here today?

[DEFENDANT]: No.

THE COURT: Are any - are you under any type of any threat - has anyone

tried to coerce you, or force you into this process of

essentially firing your lawyer?

[DEFENDANT]: No.

THE COURT: You are doing this on your own free-will?

[DEFENDANT]: Correct.

THE COURT: You have been forensically evaluated?

[DEFENDANT]: I have.

THE COURT: And your forensic evaluation shows that you were not

incompetent and that you were sane at the time of the offense,

is that correct?

[DEFENDANT]: That’s correct.

THE COURT: And you do agree with that assessment?

[DEFENDANT]: I sure do.

-5-

THE COURT: You mentioned that you had learned some law here in this

jail--

[DEFENDANT]: Correct.

THE COURT: Was it this jail or another jail?

[DEFENDANT]: In this jail.

THE COURT: All right. So, you have had the opportunity to review what

you are charged with, the elements?

[DEFENDANT]: Correct.

THE COURT: All right. I have no choice at this point but to find that you

have knowingly, intelligently waived your right to counsel,

and that you are going to be allowed to represent yourself at

trial. I am going to appoint the Public Defender’s Office to

act as elbow counsel for you, which means they will not be

saying anything on your behalf. You will do all of the talking,

you will do all of the presentations, you will do everything in

terms of courtroom work. They will be there to assist you,

and explain rulings that I may make or procedures that

involve nothing of their interference or interruption in this

trial, do you understand that?

[DEFENDANT]: I understand.

* * *

[THE COURT]: Okay. All right. This case is scheduled for trial Tuesday

morning. Mr. Herman, your office will act as elbow counsel.

If you need some clarification what that means, I will be

happy to make you--I will bring you up to speed on that. But

essentially you will not assist in the presentation of evidence,

you will not assist in jury selection. If Mr. Hopson has any

questions that he wants to ask you throughout the trial, he can

ask you. If he doesn’t want to ask you anything, then you are

setting mutual [sic]. Okay. And I--and that would include the

remainder of your office, as far as their availability.

[MR. HERMAN]: I understand.

-6-

[THE COURT]: . . . I will tell you, I don’t like doing it, I don’t like doing this

and I will take a very proactive part in this trial, but you will

be given a fair trial. All right.

At the conclusion of the above conversation, the trial court found that Defendant had

“knowingly and voluntarily waived his right to a lawyer.” The trial court followed with a cautionary

remark to Defendant that he was in his “ own shoes at that point” and that the Rules of Evidence and

of Criminal Procedure applied to him “the same as they would an attorney,” which was one of the

“pitfalls” of self-representation.

II. The Trial

The trial commenced as scheduled on April 11, 2000. The following facts concerning the

commission of the crimes for which Defendant was convicted were taken from the proof presented

by the State at that time. At approximately 5:00 p.m. on May 3, 1999, the Claiborne County

Sheriff’s Department received a 911 emergency call from a woman named Patty Johnson in an area

known as Howard’s Quarter off of Highway 33. Officer Phillip Johnson arrived at the scene

simultaneously with an ambulance from the Claiborne County Ambulance Service and Officer Tom

Daughtery, also with the Claiborne County Sheriff’s Department. As Officer Johnson approached,

he observed Patty Johnson and several other persons flagging him down from the side of the

highway. He pulled up next to them and discovered a woman, later identified as Gertie Amos, lying

on the road. Amos had suffered two stab wounds, one in her left arm and the other in her chest.

Blood was coming from both wounds. Amos informed Officer Johnson that Defendant had stabbed

her. She pointed across the highway to a tobacco barn, where Defendant lived in a small room on

the left side, and told him that Defendant was still inside.

Officer Johnson, along with two additional officers, walked to within fifty feet of the barn

door and identified themselves with a loudspeaker. The officers also asked Defendant to come out

of the barn and talk with them about Gertie Amos. They received no response. Other officers

arrived, and some of the other officers attempted to coax Defendant outside without success.

Approximately one hour and forty-five minutes later, Officer Johnson walked up to the barn and

peered inside through some cracks in the wall. He observed the body of a male lying on the ground

in front of a wagon.

Officer Johnson and some of the other officers entered the barn. Initially, the officers

believed that the man observed lying on the ground was Defendant. However, the wallet and

driver’s license recovered from the body revealed the person to be Randall Barnard. He was dead.

The officers immediately took cover and again called out for Defendant to reveal himself. There was

no response. One of the officers forced open a door on the left side of the barn which had been

locked. Officer Johnson entered first and discovered Defendant lying on his back on a bed, with his

hands behind his head. According to Officer Johnson, Defendant was looking straight at him when

he entered the room. Within an arm’s reach of Defendant’s hand was a “XX” knife with a brown

handle and 3.5 to 4 inch blade. The weapon was covered in blood, which was later determined to

-7-

be of human origin. (The record does not reflect whether DNA tests were performed on this

evidence.) The officers ordered Defendant to roll onto the floor and then escorted him outside. As

Defendant walked past Barnard’s body, which was lying face up, he asked the identity of the person.

The officers requested permission to search Defendant’s room and he consented. As a result,

the officers discovered a blue suitcase, a pillow case, a mattress cover, and a green shirt--all were

covered with blood. Thereafter, Defendant was taken to the Claiborne County Sheriff’s Department,

where he was read his Miranda rights. Defendant signed a waiver of those rights and gave a

statement. Officer Johnson testified at trial that, although Defendant smelled of alcohol, he appeared

coherent and able to understand what was happening at that time.

Gertie Mae Amos, thirty-one years old, testified that she had known Defendant for

approximately ten to fifteen years and had known the deceased victim “for years.” Amos claimed

that she spent the night prior to the incident at Defendant’s residence because her car was “messing

up.” The next morning, May 3, 1999, she and Defendant drove to the market to buy beer and then

stopped by the home of the deceased victim, Randall Barnard. They drank beer for approximately

an hour, then the three of them drove to Defendant’s barn. Amos claimed that no arguments had

occurred between any of them thus far.

Sometime after they arrived at Defendant’s room in the barn, Amos and Barnard began

talking about Amos’ mother, who was deceased. Barnard suggested that the three of them take

flowers to her grave someday. According to Amos, Defendant said that “he had heard her name

mentioned in his house enough.” He instructed the two of them to “get the hell out.” When Barnard

stood to leave, however, Defendant “jumped up and went towards him in the side with the knife.”

Amos testified that she was uncertain whether Defendant stabbed him, but she saw Barnard fall back

onto the bed. Next, Defendant came toward Amos. He stabbed her in the left arm and said, “I am

going to give you the same thing I gave your mother.” Amos ran outside into the yard. Defendant

followed her and stabbed her again in the breast. Amos testified that she fell to the ground and

“played dead.” Defendant called her a “bitch” and told her that she “had better lay there and die.”

When Defendant returned to the barn, Amos jumped up and ran to the highway to get help. Amos

claimed that neither she nor Barnard ever threatened Defendant and that she had no idea why he

would react adversely to Barnard’s statement concerning her mother.

Patty Johnson, a second grade school teacher in Hancock County, testified that she was

visiting a neighbor when she first observed Amos. Amos was coming from a driveway across the

highway from the neighbor’s house. Her shirt and pants were covered with blood. Amos told

Johnson that “Ralph” had attacked her, and Johnson immediately dialed 911 for assistance.

Dr. Gretel Harlan, a forensic pathologist, testified that she performed an autopsy on the

victim, Ralph Barnard. Dr. Harlan determined the cause of death in his case to be massive blood loss

due to two stab wounds. One of the stab wounds, located on the upper chest, severed the ascending

aorta, which usually causes a person to “bleed out” within a matter of minutes. Death occurs very

quickly in such cases. The second stab wound punctured the sternum and entered the right pleural

-8-

cavity (where the right lung is located). This type of wound typically causes extreme pain, but not

necessarily any major damage. Dr. Harlan further testified that the victim’s blood alcohol (ethanol)

level at the time of death was determined to be 0.36. The effects on the body at this level usually

include stupor, slowed reaction time, inability to walk steadily, and blurred vision. In cases where

the person is accustomed to drinking alcohol, the effects would be less severe than a person who

drinks less frequently.

At the conclusion of Dr. Harlan’s testimony, the State rested its case. Following a conference

with his “elbow counsel,” Defendant moved for a judgment of acquittal. The trial court denied the

motion. Thereafter, Defendant informed the trial court that he preferred not to testify. He also

declined to offer any proof in his defense. The State then gave its closing argument; Defendant

chose to also forgo a closing argument. The trial court gave the jury its instructions, and it began

deliberations. Twenty-four minutes later, the jury found Defendant guilty of the crimes charged.

III. Sentencing Hearing

Defendant declined assistance of counsel for the sentencing hearing, which occurred on

September 8, 2000. On behalf of the State, Gertie Amos testified that the injuries she received from

Defendant affected her life, i.e., she was required to use a breathing machine at home and carry an

inhaler with her everywhere she went. Amos claimed that the experience also affected her “nerves,”

but Defendant had not expressed any remorse to her or offered any compensation for her injuries.

Vivian Edwards, the sister of the deceased victim, similarly testified that Defendant had failed to

demonstrate any remorse or offer compensation in any form. In addition, Edwards claimed that the

loss of her brother caused her family great sorrow and that the funeral arrangements had created a

financial burden.

Thereafter, Defendant gave an unsworn statement to the effect that he was “sorry” and that

he considered the incident unfortunate. He concluded by giving “advice to one and all,” namely, to

“leave alcohol and drugs alone because that’s what caused it. You don’t mix it. Leave it alone

because that’s what it wound up causing me to do.” Defendant also expressed some remorse that

“nothing can change [what happened].” Following Defendant’s statement, the State requested an

opportunity to cross-examine him. Defendant agreed. He was sworn in, and the State questioned

him concerning whether he had any doubts about his decision to represent himself at trial.

Defendant stated that he had no regrets about his choice to not (a) make an opening statement or a

closing argument, (b) conduct direct or more extensive cross-examination of witnesses, (c) have

assistance of counsel, or (d) submit defenses. Defendant also stated that, in his opinion, he had

received a fair trial.

When the proof was concluded, the trial court reviewed certain “uncontroverted” facts with

Defendant, i.e., that he was convicted of second degree murder, a Class A felony, for which the range

of punishment was fifteen to twenty-five years, with the presumptive sentence at mid-range or twenty

years; and the range of punishment for attempted second degree murder was eight to twelve years,

at thirty percent release eligibility. Defendant acknowledged that he was aware of these facts and

-9-

that he understood them. The trial court also pointed out that an attorney from the public defender’s

office had been assigned as advisory counsel prior to trial and that he had been available to

Defendant throughout the case and during every critical stage of the proceeding.

The State submitted seven enhancement factors for consideration by the trial court; three

applied only to the attempt offense, and two applied only to the murder charge. The trial court asked

Defendant whether he understood the purpose of the enhancement factors and whether he wished

to confer with elbow counsel at that point. Defendant declined. The trial court explained to

Defendant that there may be facts and circumstances which the court may consider to mitigate his

sentence, i.e., things he may wish to present to the court which “work to his advantage” in that the

court may find Defendant deserving of a lesser sentence. Defendant responded, “You done know

the full set of circumstances already.” The trial court explained to Defendant that although it was

aware of the circumstances surrounding the particular crimes, it knew very little about him

personally. Defendant chose not to give the trial court additional information. At this point, the trial

court asked the Assistant Public Defender whether he knew of anything that might be helpful. The

attorney replied that Defendant did not have an extensive criminal history and that two of the

enhancement factors submitted by the State did not apply. Thereafter, the trial court made the

following findings:

Reviewing the enhancement factors, I do find there was more than one victim.

Although there are two separate charges that cover two separate victims, I do believe

that the spirit of that particular provision is reflective of the dangerousness of the

situation that [Defendant] caused.

I’m not particularly persuaded by the--the injuries inflicted were particularly

great. Certainly they were on Mr. Barnard, but I think the General tended to point

out, as to Ms. Amos, it would apply to her. I think that she has been hurt. But I think

it is reflected within the charge, and I am not going to find that as a basis for

enhancing the sentence or for raising above the presumptive minimum. I am going

to find the defendant employed a deadly weapon during the commission of the

offense.

Reviewing the mitigating factors that might possibly be raised in this case, I

don’t find any evidence. I never heard any evidence nor argument that might draw

a bead on any mitigating factors. So I do find that the remaining enhancing factors

do outweigh the mitigating factors for purposes of justifying the sentence above the

presumptive minimum.

The trial court then imposed a sentence of twenty-five years for the second degree murder

conviction and ten years for the attempted second degree murder conviction. The court ordered the

sentences to run concurrently, for an effective sentence of twenty-five years.

-10-

ANALYSIS

I. Waiver of Right to Counsel

Defendant contends that the trial court’s inquiry as to whether Defendant should represent

himself at trial was not sufficiently thorough to properly determine whether the waiver of his right

to assistance of counsel was knowing and intelligent. Defendant contends that, under Smith v. State,

987 S.W.2d 871 (Tenn. Crim. App. 1998), a trial court is required to conduct an extensive inquiry

as to a defendant’s ability to represent himself in a criminal matter when he states his intention or

desire to do so. Defendant maintains that without such inquiry, is it impossible to properly

determine whether a defendant’s waiver was constitutionally valid, and, in this case, the trial court’s

failure to follow the guidelines provided in Smith for such purpose effectively violated his right to

counsel. He argues that his conviction should be reversed therefor. For the following reasons, we

agree.

The right to assistance of counsel in the preparation and presentation of a defense to a

criminal charge is grounded in both the Tennessee and United States Constitutions. See U.S. Const.

amend. VI; Tenn. Const. art. I, § 9. There also exists an alternative right--the right to self

representation--which is necessarily implied by the structure of the Sixth Amendment. Faretta v.

California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975); State v. Northington, 667 S.W.2d

57, 60 (Tenn. 1984). “The right to defend is given directly to the accused; for it is he who suffers

the consequences if the defense fails.” Northington, 667 S.W.2d at 60 (quoting Faretta, 422 U.S.

at 821-22, 95 S. Ct. at 2533).

The exercise of the right to self-representation depends, in large part, upon a knowing and

intelligent waiver of the right to counsel. Id.; State v. Burkhart, 541 S.W.2d 365 (Tenn. 1976)); State

v. Herrod, 754 S.W.2d 627, 629-630 (Tenn. Crim. App. 1988). Consequently, in cases where the

accused states a desire to represent himself or herself at trial, the trial court has a duty to first

determine whether the waiver is knowing and intelligent. In Johnson v. Zerbst, 304 U.S. 458, 465,

58 S. Ct. 1019, 82 L. Ed. 1461 (1938), the United States Supreme Court placed “the serious and

weighty responsibility . . . of determining whether there is an intelligent and competent waiver”

directly upon the trial judge. More specific guidelines were subsequently established in Von Moltke

v. Gillies, 332 U.S. 708, 723-724, 68 S. Ct. 316, 323, 92 L. Ed. 309 (1948), wherein the Supreme

Court stated that

[A] judge must investigate as long and as thoroughly as the circumstances of the case

before him demand. The fact that an accused may tell him that he is informed of his

right to counsel and desires to waive this right does not automatically end the judge's

responsibility. To be valid such waiver must be made with an apprehension of the

nature of the charges, the statutory offenses included within them, the range of

allowable punishments thereunder, possible defenses to the charges and

circumstances in mitigation thereof, and all other facts essential to a broad

understanding of the whole matter. A judge can make certain that an accused's

-11-

professed waiver of counsel is understandingly and wisely made only from a

penetrating and comprehensive examination of all the circumstances under which

such a plea is tendered.

(Emphasis added.)

Similarly, Rule 44(a) of Tennessee’s Rules of Criminal Procedure states the following:

Every indigent defendant shall be entitled to have counsel assigned in all matters

necessary to the defense and at every stage of the proceedings, unless the defendant

executes a written waiver. Before accepting such waiver the court shall first advise

the accused in open court of the right to the aid of counsel at every stage of the

proceedings. The court shall, at the same time, determine whether there has been a

competent and intelligent waiver of such right by inquiring into the background,

experience and conduct of the accused and such other matters as the court may deem

appropriate. Any waiver accepted shall be spread upon the minutes of the court and

made a part of the record of the cause.

Clearly, the trial court is obligated to conduct a fairly intensive investigation into the

accused’s ability to represent himself when the issue is raised. In Smith v. State, 987 S.W.2d 871

(Tenn. Crim. App. 1998), this Court recommended that in cases where a defendant aspires to proceed

pro se, the trial court should conduct its inquiry in accordance with the guidelines contained in 1

Bench Book for United States District Judges 1.02-2 to -5 (3d ed.1986) (for ease of reference, the

guidelines were reprinted in the appendix to Smith).

Defendant relies in large part on Smith (and the guidelines contained in its appendix) for his

argument that the inquiry conducted by the trial court in his case was not sufficiently extensive to

ensure that his waiver of the right to counsel was knowingly and intelligently made. According to

the facts set forth in Smith, upon receiving notice that the defendant wanted to represent himself, the

trial judge affirmed that he had that right and provided him with copies of the indictments against

him. Id. at 872. Later, the defendant informed the trial judge that he had negotiated a plea

agreement and wanted to waive his right to a jury trial. At this point, the trial judge asked him

whether he was aware of his right to counsel and informed him that the court would appoint an

attorney to assist with his defense if he could not afford one. The defendant waived those rights and

restated his desire to proceed pro se. The trial judge accepted his waiver of the rights to assistance

of counsel and a jury trial, and then inquired as to his age, education, physical and mental health.

Id. at 873. The defendant answered the questions and stated that he was not under the influence of

any intoxicants, at the time of the crime or that particular moment. The trial judge then advised the

defendant of the maximum sentence length possible, found his guilty pleas voluntary, and imposed

the agreed-upon sentences.

On appeal, a panel of this Court set aside the Smith defendant’s conviction and remanded the

cause for a new trial. The reversal was predicated on this Court’s conclusion that, under the existing

-12-

guidelines, the trial court’s pre-trial inquiry into the matter “should have been more extensive.” Id.

at 877. Specifically, the trial court’s inquiry was found inadequate based upon the following: there

were no warnings of the pitfalls of self-representation; the waiver was accepted without asking about

the defendant’s background, education, or experience with the court system; no questions were asked

regarding his understanding of lesser offenses or the elements of the offenses charged; defendant was

not asked whether he understood available defenses or the range of possible punishments; and, most

importantly, the trial court failed to warn the defendant that self-representation was “unwise.” Id.

at 876.

A similar issue was presented in State v. Northington, 667 S.W.2d 57 (Tenn. 1984), wherein

our supreme court held that the trial court had “‘wholly failed’ to properly investigate [whether] the

defendant understood the consequences of self-representation in light of the Von Moltke factors.”

Id. at 61. In Northington, the facts in the opinion revealed that the trial court had discussed the

seriousness of the charges; advised the defendant that, if he undertook to represent himself, he would

be held to the same standard as a lawyer; ensured that the defendant had discussed the case with his

appointed attorney; determined the age and education of the accused; and warned the defendant that

proceeding pro se was unwise. Id. at 59. Notwithstanding these measures, our supreme court set

aside the conviction because the trial court had “failed to diligently examine the defendant’s

background and experience, failed to notify defendant as to the possible extent of any penitentiary

sentence, and failed to elaborate fully to defendant why he thought it ‘unwise’ to waive counsel.”

Id. at 61.

By contrast, a panel of this court found a valid waiver of the defendant’s right to counsel in

State v. Goodwin, 909 S.W.2d 35 (Tenn. Crim. App. 1995). In that case, the trial court inquired as

to Goodwin’s age and education; warned him that proceeding pro se would cause confusion;

informed him that an attorney would be provided to assist him with pretrial proceedings and

throughout the appellate process, if necessary; and cautioned him that he would not have access to

a law library and that his advisory counsel was not required to provide him with copies of relevant

legal materials. Id. at 40. The trial judge further informed him that the trial would proceed at the

same pace as it would if he had appointed counsel, that he would not have an opportunity to confer

with advisory counsel for every question, and that he was responsible for understanding the rules of

evidence and local rules of court. Id. at 41. As a litigant, Goodwin was cautioned that he would

have “no greater right than any other litigant,” but treated the same as if he were represented by

counsel. Id. On appeal, this Court found that the defendant had clearly demonstrated that “he knew

what he needed to obtain to mount a defense and the problems that he would encounter.” He had

testified to previous experience with the judicial system and was also adamant that he represent

himself at trial. Consequently, this court concluded that Goodwin “clearly understood the hazards

of representing himself,” and that he had sufficient knowledge of what he was getting into to

knowingly and intelligently waive his right to counsel. Id. at 40-41.

Considering all of the above, we first find the trial judge’s investigation insufficient to

determine whether Defendant adequately understood the consequences of self-representation in light

of the Von Moltke factors. The trial judge in Defendant’s case did not ensure that the waiver was

-13-

made with an apprehension of the nature of the charges or of the lesser-included offenses included

within them. The trial judge stated the charged offenses and asked Defendant only whether he had

an opportunity to review the elements--the range of allowable punishments thereunder was not

mentioned. The trial court did not go over the specific elements of the charged offenses or any

lesser-included offenses. In addition, the pre-trial inquiry contains no discussion of possible

defenses to the charges or of what circumstances may be considered in mitigation thereof. In short,

the inquiry which should enable the judge to “make certain that an accused’s professed waiver of

counsel is understandingly and wisely made,” fell short of being “penetrating and comprehensive

of all the circumstances under which such a plea is tendered.” Von Moltke, 332 U.S. at 723-24.

Comparing relevant Tennessee case law to the case sub judice, we conclude that the trial

court’s inquiry more closely resembles the probes conducted in Northington and Smith, rather than

Goodwin. First and foremost, the warnings given Defendant concerning the “pitfalls” of

self-representation were inadequate to sufficiently apprize Defendant of the hazards involved in such

an enterprise. Instead of enlightening Defendant as to precisely what types of hurdles he would

encounter, as in Goodwin, the trial judge informed Defendant that he was “strongly trying to

dissuade [him]” from representing himself,” then failed to elaborate with any specifics. The trial

judge pointed out that the prosecutor would try to convict him and that he would be “facing a jury

without benefit of any legal training whatsoever.” The trial judge cautioned Defendant that he would

be in his “own shoes” during the trial, i.e., he would do all of the talking and presentations, and also

be responsible for following the rules of procedure and evidence.

As for the inquiry into Defendant’s background, education, and experience with the court

system, the trial judge’s questions were not diligent to the extent that it was evident Defendant had

a broad understanding of the matter at hand. In response to questions from the trial judge, Defendant

stated that he was forty-three years of age and a high school graduate with some college. He also

claimed to have had some experience representing himself, but the trial judge did not question him

further on this issue (the presentence investigation report reveals only one prior DUI conviction in

1999). Defendant further confessed that he was essentially unfamiliar with any “rules of practice.”

Similarly to Northington and Smith, no questions were asked regarding his understanding of lesser

offenses, the elements of the offenses charged and their lesser-included offenses, the defenses

available to him, or the range of possible punishments.

As previously noted, this Court has recommended that the trial judge question a defendant

who wishes to proceed pro se according to the guidelines contained in 1 Bench Book for United

States District Judges 1.02-2 to -5 (3d ed.1986). For ease of reference, the guidelines were reprinted

in the appendix to the Smith opinion, supra. A thorough review of the suggested inquiries reveals

that the trial judge in Defendant’s case failed to ask a number of consequential questions. Questions

(g) through (j), concerning familiarity with the various bodies of rules which are of significant

importance to courtroom procedure and a just result, e.g., “Have you ever seen the rules of practice

in this courtroom?” were of little value without follow-up inquiry. Questions (d) and (e) deal with

punishment: fines and consecutive sentencing, respectively. These two issues are clearly important,

but were left out by the trial judge. Question (k), having to do with presentation of a defendant’s

-14-

own testimony, was also disregarded. The questions in the guideline which were asked, left the

issues undeveloped to any material extent. “A mere routine inquiry--the asking of several standard

questions followed by the signing of a standard written waiver of counsel--may leave a judge entirely

unaware of the facts essential to an informed decision that an accused has executed a valid waiver

of his right to counsel.” Von Moltke, 332 U.S. at 724, 68 S.Ct. at 323. The record reflects that a few

issues which should have been addressed were raised to some degree at different points later in the

trial or during the sentencing proceedings. However, “[a] valid waiver, if there is one, is made prior

to trial or not at all.” Northington, 667 S.W.2d at 62 (citation omitted).

The State contends that the trial judge’s inquiry satisfied the constitutional requirements for

a knowing and intelligent waiver of the right to counsel. The State cites no case law other than

Smith for this argument, however. We therefore disagree with the State for the reasons stated herein.

We acknowledge that, at the sentencing hearing, the Defendant testified during cross-

examination by the State, that he felt as though he had received a fair trial. Defendant also testified

that he had no regrets about his choices to not make an opening statement or a closing argument,

conduct direct examination of witnesses or more extensive cross-examination of State’s witnesses,

or to have assistance of counsel or to submit defenses to the charges. However, as noted above, in

Northington, our supreme court stated that a valid waiver is made prior to trial or not at all. A

defendant’s belief at the time of his sentencing hearing that he received a fair trial does not negate

the fact that he did not execute a “knowing and voluntary” waiver of his constitutional right to

counsel prior to trial.

In conclusion, we find that the trial judge failed to determine whether Defendant’s waiver

of the right to assistance of counsel was knowing and intelligent, according to factors set forth in

published opinions. As a result, the convictions must be reversed and the cases remanded for a new

trial.

II. Sentencing

Defendant also contends that the trial court erred in determining his sentence for the second

degree murder conviction. His contention is based on the fact that the trial court gave him the

maximum sentence for the murder conviction, and imposed a less than maximum sentence for his

conviction of the attempt offense. We agree that the sentencing in this case was not determined

properly, but our decision is based on other grounds.

When a defendant appeals the length, range, or manner of service of his or her sentence, it

is this Court’s duty to conduct a de novo review of the record with a presumption the trial court’s

determinations are correct. Tenn. Code Ann. § 40-35-401(d). The presumption of correctness is

conditioned upon the affirmative showing in the record that the trial court considered the sentencing

principles and all relevant facts and circumstances. State v. Pettus, 986 S.W.2d 540, 543-44 (Tenn.

1999). A defendant who challenges his or her sentence has the burden of proving the sentence

-15-

imposed by the trial court is improper. Tenn. Code Ann. § 40-35-401, Sentencing Commission

Comments; State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).

Although the trial court was not clear regarding what factors it applied to what offenses, it

appears from the record that the trial court applied enhancement factor (3), appropriate where “[t]he

offense involved more than one (1) victim,” Tenn. Code Ann. § 40-35-114(3), and enhancement

factor (9), appropriate where “[t]he defendant possessed or employed a firearm, explosive device or

other deadly weapon during the commission of the offense, id. § 40-35-114(9), to his sentences for

both convictions. The trial court also considered applying enhancement factor (6), applicable where

“[t]he personal injuries inflicted upon or the amount of damage to property sustained by or taken

from the victim was particularly great,” id. § 40-35-114(6), but declined to do so because it believed

serious bodily injury to be embodied in the two charges. As for mitigating factors, the trial court

found none applicable.

The trial court erred in its use of enhancement factor (3), applied on the ground that there

were more than one victim. The application of factor (3) is improper where the defendant is

convicted of an offense that can only have one victim. State v. Imfeld, 70 S.W.3d 698, 706 (Tenn.

2002) (“there cannot be multiple victims for any one offense . . . committed against a specific, named

victim”). Since Defendant was convicted for a separate offense (which could have only one victim)

involving each named victim, use of this factor is inappropriate.

Enhancement factor (9) was clearly applied correctly, based on Defendant’s use of a deadly

weapon--in this case, a knife with a 3.5 to 4 inch blade. We note that the trial court erred in its

comments concerning enhancement factor (6) as it relates to the attempted second degree murder

conviction. The trial court determined this factor inapplicable to Defendant’s sentence for the

attempt offense because serious bodily injury was “reflected” in the charge. It is not. Neither is it

an element of the offense. See Tenn. Code Ann. §§ 39-12-101, 39-13-210 (1997). Moreover, the

serious nature of the injuries sustained by Gertie Amos were sufficiently proven at trial and at the

sentencing hearing. Accordingly, factor (6) is applicable to the sentence for attempted second degree

murder under the circumstances presented here.

Under the record presented, we find no mitigating factors applicable. This matter may be

addressed, if necessary, after Defendant’s new trial. Even if a new trial was not warranted in this

case, the trial court’s erroneous application of enhancement factor (3) and non-application of factor

(6) would require that we remand the matter for a new sentencing hearing to apply the proper

sentencing factors.

As a final matter, we shall address a number of discrepancies revealed during our review of

the record. Counts 1 and 2, charging second degree murder and attempted second degree murder,

respectively, each use the correct language in alleging the charge, but the statute code number is

incorrect. Specifically, both counts cite the statutory number for first degree murder, Tenn. Code

Ann. § 39-13-202, rather than second degree murder, Tenn. Code Ann. § 39-13-210. Likewise, the

back side of the indictment contains an error: count 2 is noted as a charge of “Attempted first degree

-16-

murder,” rather than “Attempted second degree murder.” Therefore, the indictment should be

amended to reflect the proper charge and statute code numbers.

CONCLUSION

For the forgoing reasons, we reverse the judgment of the trial court and remand this matter

for a new trial.

____________________________________

THOMAS T. WOODALL, JUDGE

-17-