Alabama Rules of Criminal Procedure

Alabama Rules of Criminal Procedure

Rule 6. Right to counsel: appointment of counsel.

Rule 6.1. Right to counsel; waiver of right to counsel.

(a)

RIGHT TO COUNSEL. A defendant shall be entitled to be represented by

counsel in any criminal proceedings held pursuant to these rules and, if indigent,

shall be entitled to have an attorney appointed to represent the defendant in all

criminal proceedings in which representation by counsel is constitutionally

required. The right to be represented shall include the right to consult in private

with an attorney or the attorney’s agent, as soon as feasible after a defendant is

taken into custody, at reasonable times thereafter, and sufficiently in advance of a

proceeding to allow adequate preparation therefor.

(b)

WAIVER OF RIGHT TO COUNSEL. A defendant may waive his or her right

to counsel in writing or on the record, after the court has ascertained that the

defendant knowingly, intelligently, and voluntarily desires to forgo that right. At the

time of accepting a defendant’s waiver of the right to counsel, the court shall inform

the defendant that the waiver may be withdrawn and counsel appointed or retained

at any stage of the proceedings. When a defendant waives the right to counsel,

the court may appoint an attorney to advise the defendant during any stage of the

proceedings. Such advisory counsel shall be given notice of all matters of which

the defendant is notified.

If a non-indigent defendant appears without counsel at any proceeding after

having been given a reasonable time to retain counsel, the cause shall proceed. If

an indigent defendant who has refused appointed counsel in order to obtain private

counsel appears without counsel at any proceeding after having been given a

reasonable time to retain counsel, the court shall appoint counsel unless the

indigent defendant waives his right under this rule. If the indigent defendant

continues to refuse appointed counsel, the cause shall proceed.

(c)

WITHDRAWAL OF WAIVER. A defendant may withdraw a waiver of the

right to counsel at any time but will not be entitled to repeat any proceeding

previously held or waived solely on the grounds of the subsequent appointment or

retention of counsel.

Committee Comments

See Ala.Code 1975, §§ 15-12-1 through 15-12-5.

Rule 6 establishes guidelines for the representation of both indigent and

nonindigent criminal defendants.

The basis of Rule 6.1 is the right of a criminal defendant under Art. I, § 6,

Alabama Constitution of 1901, and the Sixth Amendment to the United States

Constitution to be represented by counsel in all criminal prosecutions.

The first sentence of this section restates the requirement of Art. I, § 6,

Alabama Constitution of 1901, “[t]hat in all criminal prosecutions, the accused has

a right to be heard by himself and counsel, or either….”

For the purpose of Rule 6, the term “criminal proceeding” includes any stage

of the criminal process, from accusation through appeal, and in collateral

proceedings arising from the initiation of a criminal action against the defendant,

such as post-conviction proceedings and appeals therefrom, extradition

proceedings, and other like proceedings which are adversary in nature, regardless

of the designation of the court in which they occur or the classification of the

proceedings as civil or criminal and without regard to whether a “criminal

proceeding” has or has not been commenced under Rule 2.1.

The provision that a defendant may consult with the attorney’s agent is

added for the convenience of the attorney.

There are two facets to the question of when counsel is to be appointed to

represent indigent defendants. The first is whether the right to appointed counsel

arises at all. Under Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383

(1979), the right to counsel in misdemeanor cases is limited to cases in which the

defendant is actually sentenced to jail. Of necessity, this will require that the judge

determine before trial that, regardless of the evidence presented, the maximum

punishment will not include incarceration. This already occurs in traffic cases where

the judge knows in advance that upon conviction of the offense charged the

punishment will not be imprisonment and that the custom and practice is to fine,

even when imprisonment is a legal alternative.

The second is that if the defendant is entitled to appointed counsel, at what

point in the process is counsel to be appointed The law in this area has developed

on a case-by-case basis, with state law following decisions of the United States

Supreme Court. There is clearly a right to counsel at trial. Gideon v. Wainwright,

372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Prior to trial the right exists at

arraignment, Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114

(1961), and at a preliminary hearing, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct.

1999, 26 L.Ed.2d 387 (1970). Following the “critical stage” test, the United States

Supreme Court has also held that an indigent is entitled to appointed counsel at a

pre-trial, post-indictment lineup. United States v. Wade, 388 U.S. 218, 87 S.Ct.

1926, 18 L.Ed.2d 1149 (1967), but not at a pre-indictment lineup. Kirby v. Illinois,

406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). Using a different test, namely

whether the proceeding is a “trial-like adversary confrontation” between the

defendant and government, the Court has held there is no right to have appointed

counsel present at a photographic display. United States v. Ash, 413 U.S. 300, 93

S.Ct. 2568, 37 L.Ed.2d 619 (1973). Under

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and

Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), presence

of counsel is required, if requested, during pre-indictment questioning if information

so obtained is to be admitted as evidence at trial.

At the other end of the criminal prosecution, an indigent has a right to

appointed counsel at sentencing, Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19

L.Ed.2d 336 (1967), and in a first appeal granted as a matter of right from a criminal

conviction, Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

Rule 32.7(c) provides for appointment of counsel at post-conviction level when the

court determines “that counsel is necessary to assert or protect the rights of the

petitioner.”

The Alabama Supreme Court held in Strickland v. State, 280 Ala. 31, 189

So.2d 771 (1965), that an accused has a right to counsel beginning with

arraignment and at every stage of the proceeding, including the guilty plea, unless

a competent, intelligent, and voluntary waiver is made. Sanders v. State, 42

Ala.App. 419, 167 So.2d 174 (1964), states that the state may not prosecute an

accused unless that person is attended by counsel at all critical stages. McIntyre

v. State, 48 Ala.App. 626, 266 So.2d 837 (1972), held that due process requires

representation by counsel at sentencing. Later cases have held that there is no

right to counsel at a pre-indictment lineup, see, e.g., Smith v. State, 55 Ala.App.

26, 312 So.2d 598 (1975); Jackson v. State, 56 Ala.App. 276, 321 So.2d 243

(1975), or at a photographic display, Terry v. State, 50 Ala.App. 299, 278 So.2d 748

(1973); McGhee v. State, 48 Ala.App. 330, 264 So.2d 560 (1972).

With regard to post-conviction and collateral actions, under Ala.Code 1975,

§ 15-12-23, an indigent defendant may have counsel appointed in postconviction

proceedings and in appeals and applications for leave to review in such

proceedings (see Rule 24(b), A.R.App.P., “Leave to Proceed on Appeal in Forma

Pauperis in Criminal Cases”), at the discretion of the Court. Also see Rule 32.7(c).

The second sentence in Rule 6.1(a) does not alter substantive law or

expand or diminish the established right of an indigent defendant to appointed

counsel. Under the cases discussed above there is a constitutional mandate that

counsel be provided at most stages of the criminal prosecution. As this has in the

past been a constantly changing area of law, there is little reason now for a court

not to extend the right to counsel to all proceedings in the criminal prosecution,

once prosecution has been initiated. The most significant change would be in the

area of pre-indictment lineups and photographic displays. There are practical

difficulties in requiring counsel to be present, since often a defendant will not have

a lawyer at this point. But counsel could be appointed shortly after arrest and a

record of such appointment made; in which case there would be no difficulty in

giving counsel notice of any lineup or photographic display and an opportunity to

be present. With regard to lineups, the existence or non-existence of an indictment

would make no difference in the mechanics of setting up a lineup, so there is no

reason counsel could not be provided prior to indictment. The remedy for failure to

have counsel present where constitutionally mandated when there has been no

waiver would not be reversal but rather exclusion of the evidence obtained. See

United States v. Wade, supra. While these rules are not intended to enlarge the

substantive right to counsel as enunciated by the courts, there is a serious and

open equal protection problem underlying denial of appointed counsel to an

indigent defendant at any stage where a defendant of means would find the

presence of retained counsel a significant benefit.

Section (b) allows any defendant to waive the right to be represented by

counsel. The first sentence adopts the constitutional standard set down in Johnson

v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Von Moltke v. Gillies,

332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); and Miranda v. Arizona, 384 U.S.

436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and required by Elrod v. State, 281 Ala.

331, 202 So.2d 539 (1967).

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981),

established that, once the right to counsel has been invoked, a waiver (no matter

how voluntary) can never be valid if made in response to further police questioning,

to that extent overruling Johnson v. Zerbst. This is in accord with State v. O’Guinn,

462 So.2d 1052 (Ala.Crim.App.1985) (if the defendant requests an attorney, he or

she is entitled to receive the attorney’s services before being questioned).

Section (b) permits the court to appoint advisory or standby counsel.

Although a criminal defendant has an absolute right to defend pro se under Art. I,

§ 6, Alabama Constitution of 1901, Luckie v. State, 55 Ala.App. 642, 318 So.2d 337

(1975), cert. denied, 294 Ala. 764, 318 So.2d 341 (1979), and the Sixth

Amendment to the United States Constitution, Faretta v. California, 422 U.S. 806,

95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), it is anticipated that there may be instances

where a court will deem the appointment of standby counsel advisable and in the

defendant’s best interest. See Faretta, supra; McKaskle v. Wiggins, 465 U.S. 168

[104 S.Ct. 944, 79 L.Ed.2d 122] (1984) (reasonable actions by standby counsel did

not violate Sixth Amendment rights even though the defendant objected to the

appointment of standby counsel); Mayberry v. Pennsylvania, 400 U.S. 455, 91

S.Ct. 499, 27 L.Ed.2d 532 (1971); United States v. Theriault, 474 F.2d 359 (5th

Cir.) cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973); ABA,

Standards for Criminal Justice, Special Functions of the Trial Judge 6-3.7 (2d ed.

1986).

The court is required to inform the defendant that the waiver may be

withdrawn since under section (c) the defendant has the burden of requesting

counsel if he later decides to withdraw the waiver.

Section (b) protects the court against dilatory tactics of the defendant in

retaining counsel while at the same time preserving the defendant’s right to

counsel. It allows an indigent defendant the opportunity to make a good faith,

though unsuccessful, effort to obtain counsel, even though as a result the

proceeding will be delayed. See Cleveland v. United States, 322 F.2d 401

(D.C.Cir.), cert. denied, 375 U.S. 884, 84 S.Ct. 157, 11 L.Ed.2d 114 (1963);

McConnell v. United States, 375 F.2d 905 (5th Cir.1967). The procedure may have

the salutary effect of allowing an otherwise indigent defendant an opportunity to

raise funds through friends or relatives to employ counsel of his choosing and thus

minimize the burden on the appointed counsel system.

Section (b) anticipates primarily two situations, namely (1) where the

defendant is being recalcitrant, or (2) where a non-indigent defendant has tried but

been unable to obtain private counsel.

Section (c) allows a defendant to withdraw waiver of counsel at any time.

The right to withdraw the waiver is unlimited, but the burden is upon the defendant

to request counsel at a later proceeding after waiver has been made. Strickland v.

State, 280 Ala. 31, 189 So.2d 771 (1965).