# Seniours v. State

> Indiana Court of Appeals · May 31, 1994 · 634 N.E.2d 803

URL: https://www.frixlaw.com/law-library/cases/9744633

## Case

- **Full name:** Charles N. SENIOURS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
- **Court:** Indiana Court of Appeals
- **Decided:** May 31, 1994
- **Citations:** 634 N.E.2d 803; 1994 Ind. App. LEXIS 625; 1994 WL 226990
- **Precedential status:** Published
- **Opinion:** Dissent by Rucker
- **Judges:** Sharpnack, Barteau, Rucker
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9744633

## How later opinions describe it (automated extraction)

- noting that, although waiver of the right to counsel was indicated by the defendant’s conduct, “the question before us is whether the court satisfied its due process obligation of ensuring, on the record, that the waiver was knowing and voluntary.”
- finding no valid waiver

## Opinion text

RUCKER, Judge,
dissenting.
I respectfully dissent from the majority's decision because I believe it is founded on a faulty premise, namely that waiver of the right to counsel cannot be established by the defendant's conduct alone.
The law is well-settled that whenever a defendant proceeds to trial without the benefit of counsel, the record must reflect that the right to counsel was voluntarily, knowingly, and intelligently waived. Leonard v. State (1991), Ind., 579 N.E.2d 1294 ; Martin v. State (1992), Ind.App., 588 N.E.2d 1291 ; Mitchell v. State (1981), Ind.App., 417 N.E.2d 364 . In addressing the issue of what constitutes a knowing and intelligent waiver, our supreme court appears to have made a distinction between cases in which a defendant has requested to act as his own attorney and cases where no such request has been made, but the defendant's conduct indicates an unwillingness to retain or accept the services of an attorney. Where a defendant requests self-representation, he waives the right to counsel only after he has been advised of the importance of the right to counsel and of the dangers and disadvantages of self-representation. However, no such advisement is necessary where the defendant, by his conduct, has knowingly and intelligently waived the right to counsel.
The first class of cases in which waiver of the right to counsel has been addressed involves an assertion by the defendant of his constitutionally protected right of self-representation. The right to act as one's own attorney, embodied in the Sixth Amendment to the United States Constitution, was first recognized in Faretta v. California (1975), 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 . In that case, the court acknowledged that the right of an accused to conduct his own defense seems to conflict with decisions holding that no person can be convicted and imprisoned unless he has been accorded the right to assistance of counsel. The court also recognized that when an accused manages his own defense he relinquishes many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, an accused must "knowingly and intelligently" forego those relinquished benefits. Faretta, 422 U.S. at 835 , 95 S.Ct. at 2541 . To insure that a defendant in such a case has competently and intelligently chosen self-representation, 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." Id.
Following Fareite, our courts have required that where a defendant requests to proceed without counsel, he must be fully *809 advised regarding the dangers and disadvantages of self-representation. Kindred v. State (1988), Ind., 524 N.E.2d 279 ; Nation v. State (1983), Ind., 445 N.E.2d 565 ; McKeown v. State (1990), Ind.App., 556 N.E.2d 3 , trans. denied. Failure to so advise the defendant may constitute reversible error. However, even where the trial court has not made the necessary advisements, waiver may be found if the record demonstrates that the defendant's background, experience, and conduct enable him to competently forego the right to counsel. See Kindred v. State (1988), Ind., 521 N.E.2d 320 ; Jackson v. State (1982), Ind.App., 441 N.E.2d 29 . Nevertheless, in any case involving a request by the defendant to proceed pro se, the trial court must be satisfied that the defendant understands the consequences of his choice before he is allowed to forego the right to counsel.
A different approach is necessary, however, in cases where no request for self-representation has been made but where the defendant nonetheless refuses to retain or accept the services of an attorney. The defendant's actions in this regard serve to disrupt the orderly processes of justice and as such may alone constitute a knowing and intelligent waiver of the right to counsel. Houston v. State (1990), Ind., 553 N.E.2d 117 . In support of its apparent position that mere conduct of the accused is insufficient to establish waiver of the right to counsel, the majority cites Fitzgerald v. State (1970), 254 Ind. 39 , 257 N.E.2d 305 . In Fitzgerald, the defendant failed to secure the services of an attorney despite repeated letters and telephone calls from the trial court urging him to do so. When the defendant appeared on the day of trial without an attorney the court allowed the trial to proceed and the defendant represented himself throughout a portion of the proceedings. On appeal, our supreme court held that although the absence of counsel was attributable entirely to the defendant's own actions, the record did not demonstrate a knowing and intelligent waiver of the right to counsel. The court acknowledged that in some instances waiver of a right may be predicated upon the defendant's conduct with respect to that right. Nevertheless, regarding a constitutional right of fundamental importance such as the right to counsel, evidence in addition to the defendant's conduct was necessary in order to establish waiver. Id.
However, subsequent to Fitzgerald, our supreme court has seemingly reversed its view that conduct alone may not amount to waiver of the right to counsel. In Houston, 553 N.E.2d at 118 , the court found a knowing and intelligent waiver of the right to counsel where the defendant's actions "enabled him to frustrate the judicial process and avoid being brought to trial." Id. In that case, the defendant agreed to employ private counsel after his failure to cooperate with three court-appointed attorneys resulted in their withdrawal from the case. The trial court warned the defendant that if he failed to employ counsel, he would be required to represent himself with the use of advisory counsel only. When the defendant appeared for trial without an attorney, the court again offered the services of a court-appointed attorney. The defendant rejected the offer and proceeded to represent himself while the attorney assisted in an advisory capacity. On review, our supreme court concluded "[blecause appellant did not retain private counsel, he must have elected to proceed with advisory counsel only." Id. From the facts presented, the court "assume[d] that appellant elected to waive his right to counsel and proceed pro se" Id. Houston thus stands for the proposition that even in the absence of advisements to the defendant regarding the consequences of proceeding without an attorney, a defendant's conduct may establish that he knowingly and voluntarily waived the right to counsel.
The view that conduct alone may constitute waiver of the right to counsel is consistent with a number of eases in which certain actions of the accused amount to waiver of a constitutional right. For example, when defense counsel takes a deposition on behalf of the defendant, any objection based on the right of confrontation is waived if the State subsequently seeks to admit the deposition at trial. State v. Owings (1993), Ind., 622 N.E.2d 948 ; Abner v. State (1985), Ind., 479 N.E.2d 1254, 1262 ; Gallagher v. State (1984), Ind.App., 466 N.E.2d 1382 . In addition, a defendant's right pursuant to the Sixth *810 Amendment and Indiana Constitution Article 1, § 13 to be present during his trial is waived where the defendant knew of his trial date yet failed to appear. Adams v. State (1987), Ind., 509 N.E.2d 812 ; McCaffrey v. State (1991), Ind.App., 577 N.E.2d 617 . Such conduct results in a knowing waiver of the right to be present at trial because the defendant's deliberate absence "indicates nothing less than an intention to obstruct the orderly processes of justice." Broecker v. State (1976), 168 Ind.App. 231 , 342 N.E.2d 886, 888 . Likewise, where the right to counsel is at issue, waiver may result where a defendant disrupts the orderly processes of justice by refusing to employ counsel prior to his trial. Houston, 553 N.E.2d at 118 .
In the present case, the trial court conducted five separate hearings in an attempt to encourage Seniours to employ counsel, provided the names of several attorneys for Seniours to contact, and ordered the trial continued in order to allow Seniours additional time to hire counsel. At the last of the hearings, the court informed Seniours that the trial would proceed on the scheduled date and that Seniours should secure counsel before that time. Seniours nevertheless appeared on the day of trial without an attorney. Such conduct demonstrates a deliberate attempt to frustrate the orderly processes of the court and is sufficient to demonstrate waiver of the right to counsel.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9744633. Public record. Not legal advice.