# Oliver v. State > Supreme Court of Arkansas · March 18, 1996 · 323 Ark. 743 URL: https://www.frixlaw.com/law-library/cases/9769257 ## Case - **Full name:** Samuel Willie OLIVER v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** March 18, 1996 - **Citations:** 323 Ark. 743; 918 S.W.2d 690; 1996 Ark. LEXIS 173 - **Precedential status:** Published - **Opinion:** Dissent by Dudley - **Judges:** Brown, Glaze, Dudley, Newbern, Roaf - **Cited by:** 39 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/9769257 ## Opinion text Robert H. Dudley, Justice, dissenting. Appellant was charged with four felonies. He employed a succession of four attorneys, but for various reasons discharged each of them. He appeared with his fourth attorney at an omnibus hearing and informed the trial court that he wished to discharge the attorney and to represent himself. The trial court did not make a meaningful inquiry into appellant’s ability to employ new counsel, did not make a full inquiry into appellant’s ability to represent himself, did not determine whether appellant made a knowing and intelligent waiver of counsel, but still allowed the attorney to withdraw. The trial court stated that standby counsel would be appointed at trial, but left appellant to represent himself at the omnibus hearing. Immediately before the trial began, appellant was again left to represent himself when the trial court heard and granted the State’s motions to quash subpoenas issued on behalf of appellant. As the trial began, the trial court appointed standby counsel. There has been no showing by the State that standby counsel had notice that he was going to be appointed, that he investigated the case, interviewed witnesses, or discussed the case with appellant. The record does not show that standby counsel participated in voir dire or the selection of the jury. Appellant personally conducted cross-examination of the State’s first and most important witness. Subsequently, standby counsel represented appellant. Appellant was convicted and sentenced for each of the four felonies. He filed a petition for postconviction relief. The trial court denied relief and the majority opinion affirms the denial of relief. I dissent. In his first point of appeal, appellant contends that the trial court (1) failed to question him about his ability to employ counsel and (2) failed to fully explain the disadvantages of representing himself, and, as a consequence, he did not knowingly and intelligently waive assistance of counsel. The argument has merit. We recently decided a case with facts that are comparable to the case at bar. In Daniels v. State, 322 Ark. 367 , 908 S.W.2d 638 (1995), the defendant and his attorney appeared before the trial court, and the defendant informed the trial court that he wished to represent himself. The trial court stated, “I think it’s a mistake not having Mr. Gibbons [counsel] with you there, but that’s your decision” and “there are procedures that we are going to follow that I suppose you don’t understand in selecting a jury.” Id. at 370 , 908 S.W.2d at 639 . The trial court informed the defendant that his counsel would remain available, but allowed the defendant to represent himself. Id. The defendant represented himself through jury selection and until the State’s first witness was called. At that time, the defendant became unruly and was removed from the courtroom. In reversing because the defendant did not knowingly and intelligently waive his right to counsel we wrote: The Sixth and Fourteenth Amendments to the Constitution of the United States guarantee that any person brought to trial in any state or federal court must be afforded the fundamental right to assistance of counsel before he can be validly convicted and punished by imprisonment. Faretta v. California, 422 U.S. 806 (1975); Kincade v. State, 303 Ark. 331 , 796 S.W.2d 580 (1990). It is well established that an accused may make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. Deere v. State, 301 Ark. 505 , 785 S.W.2d 31 (1990). However, every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Kincade v. State, supra; Philyaw v. State, 288 Ark. 237 , 704 S.W.2d 608 (1986). The burden is upon the state to show that an accused voluntarily and intelligently waived his fundamental right to the assistance of counsel. Scott v. State, 298 Ark. 214 , 766 S.W.2d 428 (1989). In Faretta v. California, supra, the United States Supreme Court stated that “[although a defendant need not himself have the skill and experience of a lawyer in order to competently and intelligently choose self-representation, he 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.’ ” (quoting Adams v. United States ex rel. McCann, 317 U.S. 269 (1942)). In Gibson v. State, 298 Ark. 43 , 764 S.W.2d 617 , cert. denied, 491 U.S. 910 (1989), we relied upon Patterson v. Illinois, 487 U.S. 285 (1988), to conclude that the constitutional minimum for a knowing and intelligent waiver of the right to counsel requires that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forego the aid of counsel. Further, we have stated that determining whether an intelligent waiver of the right to counsel has been made depends in each case upon the particular facts and circumstances, including the background, the experience and conduct of the accused. Gibson v. State, supra. To establish a voluntary and intelligent waiver, the trial judge must explain to the accused that he is entitled as a matter of law to an attorney and question him to see if he can afford to hire counsel. Id. The judge must also explain the desirability of having the assistance of an attorney during the trial and the drawbacks of not having an attorney. Id. The last requirement is especially important since a party appearing pro se is responsible for any mistakes he makes in the conduct of his trial and receives no special consideration on appeal. Id. The appellant was not represented by counsel at his trial and there is no showing on the record that he knowingly and intelligently waived this right. The trial court commented that the appellant appeared to be well versed in the law; however, no real inquiry was made. In fact, the state concedes there was no inquiry. The trial court did not explain the risks or the consequences of proceeding without counsel. See Gibson v. State, supra; Murdock v. State, 291 Ark. 8 , 722 S.W.2d 268 (1986). Accordingly, we hold the trial court erred by allowing the appellant to represent himself without making a proper inquiry as required by Faretta v. California, supra. Daniels v. State, 322 Ark. at 372-73 , 908 S.W.2d at 640-41 . The concurring opinion agreed. It provides that the trial judge was “required to ensure appellant knowingly and intelligently waived counsel, once appellant terminated counsel and chose to represent himself.” Daniels v. State, 322 Ark. 367, 375 , 908 S.W.2d 638, 642 (1995) (Glaze, J., concurring). The same reasoning is applicable to the case at bar. Here, there was no inquiry into appellant’s ability to employ counsel, no inquiry into his background or experiences, and no inquiry into his familiarity with criminal law. The record does not reflect that defendant knew what he was doing or that he was aware of the dangers of self-representation. Indeed, the State, in its brief, refers to the adage that one who represents himself has a fool for a client. In sum, the record does not show that defendant knowingly and intelligently waived his fundamental right of assistance of counsel. The majority opinion admits, “The present case exhibits deficiencies in the necessary inquiry into the risk of Oliver’s representing himself,” and “We admit to having serious concerns about standby counsel’s being appointed the day of the trial and, thus, having no knowledge of the case. . . .” It further admits, “[T]he failure of the trial court to inquire into Oliver’s financial ability to hire counsel was error.” (Emphasis supplied.) Thus, the majority opinion admits that the trial court committed two Sixth Amendment errors involving right to counsel, but, under a totality-of-the-circumstances test, affirms the trial court. The majority opinion reaches the wrong result because it applies the wrong standard. It is now well settled that Sixth Amendment violations that cast doubt on the fairness of the entire trial process can never be considered harmless. See Holloway v. Arkansas, 435 U.S. 475 (1978) (conflict of interest in representation throughout the proceeding); Gideon v. Wainwright, 372 U.S. 335 (1963) (deprivation of counsel throughout the proceeding); White v. Maryland, 373 U.S. 59 (1963) and Hamilton v. Alabama, 368 U.S. 52 (1961) (absence of counsel from arraignment proceeding that affected the entire trial). The Chapman harmless-error test could not be applied in the foregoing cases because the scope of the violation could not be discerned from the record, and any inquiry into its effect on the outcome of the case would be purely speculative. Satterwhite v. Texas, 486 U.S. 249 (1988). The Chapman harmless-error test is authorized only in those Sixth Amendment cases where the violation is limited to the admission of evidence obtained without counsel. Satterwhite v. Texas, 486 U.S. 249 (1988). The error in this case involves more than the admission of evidence. Indeed, the majority opinion confesses that the trial court committed errors involving inquiry about, and appointment of, counsel. It is settled that such error cannot be considered harmless, and there is no authority for the totality-of-the-circumstances test utilized in the majority opinion. Reversal and remand is mandated under the Sixth Amendment cases decided by the Supreme Court. Newbern, J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9769257. Public record. Not legal advice.