          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                                AT JACKSON

                           DECEMBER 1998 SESSION
                                                          FILED
                                                                May 7, 1999

                                                         Cecil Crowson, Jr.
STATE OF TENNESSEE,              )                      Appellate Court Clerk
                                 )
      Appellee,                  ) C.C.A. No. 02C01-9801-CR-00006
                                 )
                                 ) Shelby County
V.                               )
                                 ) Honorable John P. Colton, Jr., Judge
                                 )
JOHN D. RUFF,                    ) (Assault)
                                 )
      Appellant.                 )




FOR THE APPELLANT:                  FOR THE APPELLEE:

A. C. WHARTON, JR.                  JOHN KNOX WALKUP
District Public Defender            Attorney General & Reporter

TONY N. BRAYTON                     MARVIN E. CLEMENTS, JR.
Assistant Public Defender           Assistant Attorney General
Criminal Justice Complex            Criminal Justice Division
425 Fifth Avenue North              2nd Floor, Cordell Hull Building
201 Poplar Avenue, Suite 2-01       Nashville, TN 37243-0493
Memphis, TN 38103
                                    WILLIAM L. GIBBONS
                                    District Attorney General

                                    JAMES CHALLEN
                                    PERRY HAYES
                                    Assistant District Attorneys General
                                    Criminal Justice Complex
                                    201 Poplar Avenue, Suite 301
                                    Memphis, TN 38103




OPINION FILED: ___________________


REVERSED AND REMANDED


JOHN EVERETT WILLIAMS,
Judge
                                       OPINION

          The defendant, John D. Ruff, appeals his Shelby County Circuit Court

    conviction of two counts of assault. The defendant alleges that the trial court

    improperly allowed him to waive counsel. He further alleges that the evidence at

    trial did not support the guilty verdicts. The defendant seeks dismissal of the

    charges, or, in the alternative, a new trial. We REVERSE the judgment below.



                                       BACKGROUND



                Memphis Police Department officers stopped a vehicle operated by the

    defendant and arrested him because he would not sign the issued traffic citation.

    At the Shelby County Jail, the defendant “passively resisted” thumb printing

    procedure. The defendant then allegedly assaulted the officers, and the Shelby

    County Grand Jury indicted the defendant on those two counts of assault.



           The trial court’s Order Appointing Private Counsel declared the defendant

    “financially unable to employ counsel” and appointed Wayne Chastain as

    defense counsel. 1 Chastain later moved to withdraw, alleging that the defendant

    had retained private counsel and had been extremely uncooperative. The

    defendant also requested Chastain’s release. The trial court later released

    Chastain.




1
  The record is somewhat ambiguous regarding the defendant’s status as an indigent. The
defendant claimed different incomes, up to over fourteen dollars per hour, at various times in the
proceedings. At a pretrial appearance conducted some time after entry of the Order mentioned
above, the state requested an indigence determination. The trial court replied that such
determination could be pursued at a later date, although the Order indicates the court had already
made that determination. Also, the defendant apparently retained his own private counsel at some
early point in the judicial proc eedings .

                                                -2-
           At a later proceeding, the defendant attempted argument on a motion

    based on double jeopardy. 2 The defendant did not file the appropriate order

    setting the argument. The trial court denied opportunity to argue the motion and

    addressed the defendant’s subsequent complaint:



           Well, if you're going to represent yourself, you're going to have to
           be a lawyer. If you didn't enter an order to that effect, this court is
           not going to -- . . . This is a court of record. We're not a General
           Sessions court down here. Where are you used to trying your
           cases? Where do you practice law most of the time? This is a
           court of record up here.


           At that appearance, the trial court appointed Robert Gaia as counsel, who

    advised the court that the defendant wished to represent himself but retain Gaia

    as co-counsel. The court responded:



           THE COURT: If you want to represent yourself, you're going to
           represent yourself. I am not going to treat you any different than I
           would any other lawyer in this case, and if you don't know how to
           handle yourself as a lawyer, you're going to be in trouble. Do you
           understand that?

           DEFENDANT RUFF: Yes, sir.


    When Gaia sought to assume as counsel, the defendant told him, “No, I [sic]

    rather have you not at this time. I would like to just remain silent.” Gaia

    remained on the case as “elbow counsel.” On a subsequent pretrial appearance,

    the defendant requested that Gaia, as “elbow counsel,” assist him at trial. The

    trial court responded:



           THE COURT: I'm interested in whether you want to represent
           yourself.

           DEFENDANT RUFF: Yes, Your Honor, I would like to continue to
           represent myself with Mr. Gaia's assistance.

           ....




2
 The defendant alleged that the nolle prosequi issued on the charges at the General Sessions
Court ba rred furth er prose cution.

                                              -3-
         THE COURT: If you want to represent yourself, that means you
         make all the --all the various procedural legal moves that need to
         be made at a trial and so forth. Do you understand that?

         DEFENDANT RUFF: Yes, I do.

         THE COURT: You understand that you would have to make all the
         objections and all those kind of things. Do you stand all of that?

         DEFENDANT RUFF: Yes, I understand that.

         ....

         THE COURT: . . . [T]he court’s going to make a finding on this case
         at this time that you have asserted your right to self-representation.
         And next, the court is going to make a finding that you have
         requested this and that you have been clear an [sic] unequivocal
         about it all along. And the court is going to show that you
         knowingly and intelligently waived the right of the assistance of
         counsel.

         DEFENDANT RUFF: Yes, Your Honor, I have never made it known
         to the court that I would not be representing myself. I have never
         filed any pleadings or made any oral statement to that effect. So
         the prosecution can assume I will be representing myself.


         The jury found the defendant guilty on both charges. The trial court

imposed a sentence of six months in the workhouse and assessed two $2500.00

fines.



         The trial court denied the defendant’s pro se Motion for New Trial. The

defendant executed an affidavit of indigence, and the trial court appointed the

public defender as counsel for this appeal.



                                      ANALYSIS

         “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 the

United States Constitutions.” State v. Northington, 667 S.W.2d 57, 60 (Tenn.

1984). An accused also possesses a right to self-representation, see State v.

Gillespie, 898 S.W.2d 738, 740 (Tenn. Crim. App. 1994), but a “strong

presumption against waiver of the constitutional right to counsel” exists,

Northington, 667 S.W.2d at 60. An accused’s request for self-representation in a

criminal proceeding must be timely, as well as clear and unequivocal. See State

                                          -4-
v. Herrod, 754 S.W.2d 627, 629-30 (Tenn. Crim. App. 1988). Further, the waiver

of counsel must be voluntary and intelligent. See id.



       A trial judge bears specific responsibilities when an indigent accused

requests self-representation:



       Every indigent defendant shall be entitled to have counsel assigned
       to represent him in all matters necessary to his defense and at
       every stage of the proceedings, unless he executes a written
       waiver. Before accepting such a waiver the court shall first advise
       the accused in open court of his right to the aid of counsel in 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 shall be spread upon the
       minutes of the court and made a part of the record of the cause.

Tenn. R. Crim. P. 44(a); see State v. Gardner, 626 S.W.2d 721, 723 (Tenn.

Crim. App. 1981); see also Johnson v. Zerbst, 304 U.S. 458, 465 (1938) (The

trial judge bears the “serious and heady responsibility . . . of determining whether

there is an intelligent and competent waiver by the accused.”).



       A defendant’s asserting his right to self-representation does not excuse

judicial inquiry. When an accused desires to proceed pro se, the trial judge must

conduct an intensive inquiry as to that defendant’s ability to represent himself.

This Court recently addressed the applicable guidelines for this inquiry:



       “[A] judge must investigate as long and as thoroughly as the
       circumstances 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 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.”




                                        -5-
Paul Dan Smith v. State, No. 01C01-9712-CC-00578 (Tenn. Crim. App. filed

Nov. 13, 1998, at Nashville) ( quoting Von Moltke v. Gillies, 332 U.S. 708, 723-24

(1948)). The trial court must also ascertain the defendant’s background,

education, and experience with the legal system. The defendant must know why

“he should have counsel and what he risk[s] by refusing appointed counsel” and

thus “clearly understand the hazards of representing himself.” State v. Goodwin,

909 S.W.2d 35, 40-41 (Tenn. Crim. App. 1995).



      The record documents the trial judge’s patience with the defendant’s

demands and his self-representation. Further, at different times the trial judge

investigated various issues germane to the defendant’s waiver of counsel.

However, the right to counsel in criminal prosecution “is one of the safeguards

. . . deemed necessary to insure fundamental human rights of life and liberty.”

Hendon v. State, 489 S.W.2d 271, 275 (Tenn. Crim. App. 1972). The

defendant’s self-representation at pretrial motions does not excuse absence of

“a voluntary and knowing waiver of the right to counsel.” State v. Armes, 673

S.W.2d 174, 177 (Tenn. Crim. App. 1984). “The record must show that the

defendant made his decision [to waive counsel] knowing the disadvantages and

dangers of representing himself.” Goodwin, 909 S.W.2d at 40. We conclude

that the record does not make this showing.



      The trial court warned the defendant that he would “be in trouble” if he

should not function as counsel but did not specifically articulate the dangers

inherent in self-representation. The court did not discuss potential defenses,

possible punishments, and other factors relevant to granting the opportunity for

self-representation. The court did not examine the defendant’s background,

education, and experience with the legal system. In short, the trial court

committed reversible error by not scrutinizing the pertinent factors established by

the cited precedent. The submitted record does not clearly indicate the judicial

scrutiny requisite to granting the defendant’s request for self-representation.



                                        -6-
      This Court again recommends that trial courts consult 1 Bench Book for

United States District Judges 1.02-2 to - 5 (3d ed. 1986) when questioning a

defendant seeking pro se status. See Paul Dan Smith v. State, No. 01C01-

9712-CC-00578 (Tenn. Crim. App. filed Nov. 13, 1998, at Nashville). We attach

a copy of those guidelines as an appendix to this opinion.




                                 CONCLUSION



      We do not reach the presented issue of sufficiency of evidence. We

REVERSE and REMAND to the trial court for action consistent with our holding.




                                          _____________________________
                                          JOHN EVERETT W ILLIAMS, Judge




CONCUR:




_____________________________
GARY R. WADE, Presiding Judge




_____________________________
THOMAS T. W OODALL, Judge




                                  -7-
                                 APPENDIX

The following excerpt is from United States v. McDowell, 814 F.2d 245, 251-52

(6th Cir. 1987) (quoting Guideline[s] For District Judges from I Bench Book for

United States District Judges 1.02-2 to -5 (3d ed. 1986)):

               When a defendant states that he wishes to represent himself, you
should ... ask questions similar to the following:

      (a)     Have you ever studied law?

      (b)    Have you ever represented yourself or any other defendant in a
      criminal action?

      (c)   You realize, do you not, that you are charged with these crimes:
      (Here state the crimes with which the defendant is charged.)

      (d)     You realize, do you not, that if you are found guilty of the crime
      charged in Count I the court must impose an assessment of at least $50
      ($25 if a misdemeanor) and could sentence you to as much as ___ years
      in prison and fine you as much as $___?

      (Then ask him a similar question with respect to each other crime which
      he may be charged in the indictment or information.)

      (e)    You realize, do you not, that if you are found guilty of more than
      one of those crimes this court can order that the sentences be served
      consecutively, that is, one after another?

       (f)   You realize, do you not, that if you represent yourself, you are on
       your own? I cannot tell you how you should try your case or even advise
       you as to how to try your case.

       (g)    Are you familiar with the [Tennessee] Rules of Evidence?

       (h)   You realize, do you not, that the [Tennessee] Rules of Evidence
       govern what evidence may or may not be introduced at trial and, in
       representing yourself, you must abide by those rules?

       (i)    Are you familiar with the [Tennessee] Rules of Criminal Procedure?

       (j)    You realize, do you not, that those rules govern the way in which a
       criminal action is tried in [this] court?

       (k)    You realize, do you not, that if you decide to take the witness
       stand, you must present your testimony by asking questions of yourself?
       You cannot just take the stand and tell your story. You must proceed
       question by question through your testimony.

       (l)    (Then say to the defendant something to this effect): I must advise
       you that in my opinion you would be far better defended by a trained
       lawyer than you can by yourself. I think it is unwise of you to try to
       represent yourself. You are not familiar with the law. You are not familiar
       with court procedure. You are not familiar with the rules of evidence. I
       would strongly urge you not to try to represent yourself.

       (m) Now, in light of the penalty that you might suffer if you are found
       guilty and in light of all the difficulties of representing yourself, is it still


                                               -8-
       your desire to represent yourself and to give up your right to be
       represented by a lawyer?

       (n)     Is your decision entirely voluntary on your part?

       (o)    If the answers to the two preceding questions are in the affirmative,
       [and in your opinion the waiver of counsel is knowing and voluntary,] you
       should then say something to the following effect: “I find that the
       defendant has knowingly and voluntarily waived his right to counsel. I will
       therefore permit him to represent himself.”

       (p)    You should consider the appointment of standby counsel to assist
       the defendant and to replace him if the court should determine during trial
       that the defendant can no longer be permitted to represent himself.

(Final alteration in original.)




                                      -9-
