                                    Cite as 2017 Ark. 246


                 SUPREME COURT OF ARKANSAS
                                      No.   CR-16-1061

                                                 Opinion Delivered: September   14, 2017

KEVIN LEE REED
                                APPELLANT APPEAL FROM THE BENTON
                                          COUNTY CIRCUIT COURT
V.                                        [NOS. 04CR-13-722 AND 04CR-15-
                                          1083]
STATE OF ARKANSAS
                                   APPELLEE HONORABLE ROBIN F. GREEN,
                                            JUDGE

                                                 AFFIRMED.


                           SHAWN A. WOMACK, Associate Justice


        Kevin Reed was convicted of rape and second-degree sexual assault after a trial in

 the Benton County Circuit Court. He received a total, consecutive sentence of life plus

 twenty years. On appeal, Reed argues that his convictions should be overturned because

 the trial court denied him the right to represent himself at trial in violation of his

 constitutional rights. Because we agree with the trial court that Reed’s attempt to waive his

 right to counsel and represent himself was equivocal, we affirm.

        The United States Supreme Court held in Faretta v. California, 422 U.S. 806 (1975),

 that the right to self-representation for criminal defendants is “necessarily implied by the

 structure of the [Sixth] Amendment” to the United States Constitution. Faretta, 422 U.S. at

 819. There is an inherent tension, however, between the Supreme Court’s command that

 criminal defendants receive effective counsel and permitting those same defendants to handle

 their own defenses, virtually always without relevant expertise and sometimes with literal
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life-and-death stakes. Acknowledging this tension, the Court elaborated that defendants

invoking the right to self-representation must “knowingly and intelligently forgo” the right

to counsel after having been made aware of the “dangers and disadvantages of self-

representation.” Faretta, 422 U.S. at 835. This court has addressed similar concerns by

requiring that (1) the request to waive counsel must be unequivocal and timely asserted, (2)

the waiver must be knowing and intelligent, and (3) the defendant must not have engaged

in conduct that would prevent the fair and orderly exposition of the issues. See, e.g., Pierce

v. State, 362 Ark. 491, 498, 209 S.W.3d 364, 368 (2005).

       In this case, Reed initially requested to waive his right to counsel and represent

himself at a pretrial hearing. The trial court then began providing the necessary disclosures

about the “dangers and disadvantages” of self-representation. Reed and the court then

engaged in an extended back-and-forth about the preparation and review of evidence for

his trial. After this discussion, Reed again said that he wished to represent himself. This

request, however, was commingled with his evident concern that the trial should be delayed,

a request the court repeatedly stated would not be granted. Consideration of Reed’s request

for self-representation then picked up the next morning, the day of the trial. Reed renewed

his request at the outset of this discussion. After the court reiterated that the trial would not

be delayed and that Reed would have to conduct voir dire and his defense that very day,

however, Reed said that he was “trying to do what I believe is right, and I don’t know.”

More directly, he then said, “I’m debating whether to represent myself or let [my current

counsel] represent me.” Reed repeated that he did not know what he wanted to do at that

point, and in response to a proposed compromise by the trial court in which Reed’s current


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counsel would serve as “a whispering attorney,” Reed confirmed that he was not sure. After

Reed’s multiple instances of uncertainty while being told of the consequences of self-

representation, the trial court ruled that Reed’s invocation was equivocal, and the trial

proceeded with Reed’s original counsel.

       Our precedents have made clear that a defendant’s statements must be viewed in

their entirety to judge whether an attempt to waive counsel and self-represent is sufficiently

unequivocal. In Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999), for instance, the

defendant stated, “I’ll just represent myself. I don’t want a lawyer.” Mayo, 336 Ark. at 281,

984 S.W.2d at 805. After a review of the likely motives for the defendant’s request,

however, we upheld the trial court’s decision not to grant the defendant’s request despite a

facially unequivocal statement. As we have said, “[e]very reasonable presumption must be

indulged against the waiver of fundamental constitutional rights.” Pierce, 362 Ark. at 498,

209 S.W.3d at 368. Reed’s statements in this case presented an inconsistent picture to the

court of his commitment to the idea of self-representation. The trial court discounted

Reed’s earlier, more assured statements after further discussion indicated that Reed harbored

doubts about representing himself. This is exactly the sort of holistic review in which a court

must engage when a defendant’s decision to invoke one right imperils another.

       We hold that the trial court correctly held that Reed’s attempts to waive his right to

counsel and represent himself were equivocal.

       As required by Ark. Sup. Ct. R. 4-3(i) (2017), the record has been examined for
reversible error. None has been found.
       Affirmed.
       Brett D. Watson, Attorney at Law PLLC, by: Brett D. Watson, for Appellant.
       Leslie Rutledge, Att’y Gen., by: Pamela Rumpz, Ass’t Att’y Gen., for Appellee.


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