                In the Missouri Court of Appeals
                        Eastern District
                                                  DIVISION TWO

STATE OF MISSOURI,                                          )    No. ED103196
                                                            )
           Respondent,                                      )    Appeal from the Circuit Court
                                                            )    of the City of St. Louis
vs.                                                         )
                                                            )
RONALD DAVIS,                                               )    Honorable Thomas J. Frawley
                                                            )
           Appellant,                                       )
                                                            )    FILED: September 27, 2016

           Ronald Davis (“Appellant”) appeals from his judgments for assault in the first degree, in

violation of Section 565.050 (RSMo. 2000) 1, and armed criminal action, in violation of Section

571.015. Appellant wished to proceed without benefit of counsel; the trial court granted that

request, but also provided standby counsel. This action brings to mind the adage, “be careful

what you ask for, you might get it.” Appellant represented himself at trial and the jury found

him guilty of both charges. This result brings to mind another adage, “he who represents himself

has a fool for a client.” Appellant was sentenced as a prior and persistent offender to consecutive

terms of life imprisonment. Appellant now complains that the trial court failed to make a proper

determination that he knowingly and intelligently waived his right to counsel and failed to

present him with the required written waiver of counsel form. We affirm.

                                                   I. Background



1
    All further statutory references are to RSMo. 2000, unless otherwise indicated.
       Appellant was charged by the State of Missouri (“State”) with assault in the first degree

and armed criminal action. On the day of his trial, Appellant asked to address the court before

voir dire. Appellant stated defense counsel could not represent him because a conflict of interest

existed. When asked to explain the conflict, Appellant claimed defense counsel was “an officer

of the Court . . . [and her] duty is first to the Court and the public and not the client. She can’t

represent me, she’s a corporate person, a corporate citizen. I am not.” The court asked if

Appellant wanted to represent himself, to which he replied, “Yes, sir, and not pro se . . . Impropa

persona (sic).” Appellant then presented the court with “an averment of jurisdiction” and asked

the court for a “delegation of authority.” When asked what he wanted the court to do, Appellant

stated, “prove who you is . . . prove who the Court is, sir.” After denying Appellant’s motion to

discharge defense counsel for conflict of interest, the court again asked Appellant if he wanted

defense counsel to represent him:

       THE COURT: Do you want her to represent you?

       DEFENDANT: No, I do not.

       THE COURT: So you want me to discharge her as your lawyer?

       DEFENDANT: I want – that’s right, discharge her as my lawyer.

       THE COURT: All right. Now, do you understand that if you’re convicted of both
       of these charges you have the potential of getting two consecutive life sentences
       in jail?

       DEFENDANT: You’re going to force me to go to trial and not answer [the
       “delegation of authority”]?

       THE COURT: I’m sorry, sir?

       DEFENDANT: I said so you’re going to force me to go to trial?

       THE COURT: Sir, you’re set for trial, you’re going to go to trial.

       DEFENDANT: I said so you’re forcing me to go to trial?



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       THE COURT: I’m not forcing you to do anything, sir. It’s set for trial, if you
       want [Defense Counsel] –

       DEFENDANT: I ask you for a delegation of authority order.

                                                 ...

       THE COURT: Sir, do you want [Defense Counsel] to stand by in case you want
       help during this trial?

       DEFENDANT: I’m asking you, you going to answer the delegation of authority?

       THE COURT: Sir, this is going to be real hard unless you start answering my
       questions.

Appellant’s lack of cooperation and repeated demands for the court’s “delegation of authority”

continued as the court inquired of Appellant’s knowledge and understanding of his charges,

range of punishment, the trial process, and the consequences of waiving his constitutional right

to counsel. After determining Appellant had the capacity to make a knowing and intelligent

waiver of counsel, the court granted his request to discharge counsel – without presenting a

signed written waiver of counsel – but ordered defense counsel to remain available as standby

counsel during the trial. This appeal follows.

                                           II. Discussion

       In Appellant’s sole point on appeal, he argues the trial court erred by discharging counsel

and allowing him to represent himself pro se at trial because the discharge of counsel violated

Appellant’s right to counsel, right to due process, and right to a fair trial as guaranteed by the

Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I,

Sections 10 and 18(a) of the Missouri Constitution in that the trial court never made a

determination that Appellant knowingly and intelligently waived his right to counsel nor

presented Appellant with a waiver of counsel form required under Section 600.051.

A. Standards of Review



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         Constitutional claims must be made at the first opportunity to be preserved for review.

State v. Murray, 469 S.W.3d 921, 925 (Mo. App. E.D. 2015). Though no objection was made at

trial, a pro se defendant is not expected to object to his motion to represent himself. Id.

Therefore, Appellant’s claim that his waiver of counsel hearing was insufficient is preserved and

we review the claim de novo. Id. at 925-26.

         Issues that were not preserved may be reviewed for plain error only, which requires the

reviewing court to find that manifest injustice or a miscarriage of justice has resulted from the

trial court error. State v. Baumruk, 280 S.W.3d 600, 607 (Mo. banc 2009). We first must

examine whether the claim of error facially establishes substantial grounds for believing that

manifest injustice or a miscarriage of justice has resulted. Id. If plain error is found, we must

then determine whether the claimed error resulted in manifest injustice or a miscarriage of

justice. Id. at 607-08. Appellant’s claim regarding the failure to present a written waiver of

counsel in compliance with Section 600.051 is unpreserved and will be reviewed only for plain

error.

B. Waiver of Counsel

         The Sixth and Fourteenth Amendments guarantee the right to assistance of counsel before

a sentence of imprisonment may be imposed. State v. Wilkerson, 948 S.W.2d 440, 443 (Mo.

App. W.D. 1997). This right, however, may be waived if the waiver is made “knowingly and

intelligently.” Id. Determining whether a defendant’s waiver is made knowingly and

intelligently depends on the particular facts of the case and considers the background, experience

and conduct of the defendant. State v. Murray, 469 S.W.3d 921, 926 (Mo. App. E.D. 2015).

Before granting waiver of counsel, the trial court should inquire of the defendant’s capacity to

make intelligent decisions, knowledge of the situation, and understanding of possible penalties.




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Id. Further, the court must ensure that the defendant understands the rights and privileges he is

waiving and the dangers associated with waiving his constitutional rights. Id.

       Here, the court explicitly addressed each of these important areas of inquiry prior to

granting Appellant’s waiver of counsel. Regarding Appellant’s capacity to make intelligent

decisions, the court ascertained Appellant had obtained a GED and was able to read and write.

Further, the court noted that Appellant had personally filed court documents before the court

indicating he could read and write. Nothing in the record indicated Appellant was incompetent

to make a knowing and intelligent waiver of counsel.

       Next, the court attempted to confirm Appellant’s understanding of the charges and range

of punishment. The court specifically asked Appellant if he understood that he was charged with

assault in the first degree and armed criminal action and that he was facing up to two consecutive

life sentences in jail. However, Appellant would not respond to the court’s questions, and

instead replied to every question with a demand to see the court’s “delegation of authority.”

After several unanswered questions about Appellant’s understanding of the situation, Appellant

did finally acknowledge his awareness that he had been charged with assault. Appellant refused

to directly acknowledge his understanding of the range of punishment, despite being asked

numerous times.

       Further, the court thoroughly questioned Appellant’s understanding of trial procedures.

Appellant acknowledged he was familiar with the procedures because he had previously been

through the trial process. The State also noted Appellant had represented himself in previous

proceedings. When advised of the risks associated with representing himself in trial, Appellant

again refused to directly respond or acknowledge the trial court’s statements. Instead, Appellant

stated nothing could be done until the court proved its “status” and presented a “delegation of

authority.” Appellant’s lack of cooperation and repeated refusal to acknowledge and answer


                                                 5
pertinent questions of the waiver hearing process made it clear that any additional inquiry would

be redundant and futile. Considering Appellant’s background, experience, and previous

involvement with criminal trial procedures, the trial court properly inquired and concluded that

Appellant knowingly and intelligently waived his right to counsel.

C. Presentation of Waiver

       Section 600.051 outlines the required contents of a signed waiver witnessed by the court,

which the defendant must read or have read to him:

       (1) That the defendant has been charged with the offense of ………. (nature of
       charge must be inserted before signing); (2) That the defendant has a right to a
       trial on the charge and further that the defendant has a right to a trial by a jury; (3)
       That the maximum possible sentence on the charge is ………. imprisonment in
       jail and a fine in the amount of ………. dollars or by both imprisonment and fine.
       That the minimum possible sentence is ………. imprisonment in jail or by a fine
       in the amount of ………. dollars or by both such confinement and fine; (4) That
       the defendant is aware that any recommendations by a prosecuting attorney or
       other prosecuting official are not binding on the judge and that any such
       recommendations may or may not be accepted by judge; (5) That if defendant
       pleads guilty or is found guilty of the charge, the judge is most likely to impose a
       sentence of confinement; (6) That, if indigent, and unable to employ an attorney,
       the defendant has a right to request the judge to appoint counsel to assist the
       defendant in his defense against the charge.

This statutorily required written waiver provides “objective assurance that the defendant’s

waiver is knowing and voluntary.” May v. State, 718 S.W.2d 495, 497 (Mo. banc 1986).

       There are, however, exceptions to the written waiver requirement. The first exception

eliminates the statutory requirement when a defendant has standby or hybrid counsel: “one who

has ‘standby’ counsel or ‘hybrid’ counsel has the aid and assistance of an attorney and has not

actually waived counsel.” State v. Hunter, 840 S.W.2d 850, 860 (Mo. banc 1992). The court

expressly noted that failure to obtain written waiver of counsel in these instances is not plain

error. Id. The second applicable exception to the written waiver requirement is when the

defendant is presented with a waiver form but refuses to sign it. May v. State, 718 S.W.2d 495,
                                                  6
496 (Mo. banc 1986). This exception intends to prevent “gamesmanship which might seriously

interfere with trial proceedings.” Id.

       While the better practice would have been for the trial court to present Appellant with a

written waiver of counsel document, the existence of standby counsel and Appellant’s lack of

cooperation throughout the pre-trial hearing created an applicable exception to the written waiver

requirement. After Appellant requested discharge of his counsel, the court ordered counsel to

remain available throughout the trial as standby counsel – over Appellant’s objection. The court

ordered that standby counsel “will remain . . . should you at any point in time request her

assistance, and there will be various times where we will break and I will give you the

opportunity to speak with her and get whatever assistance you think you would like to receive.”

Counsel’s standby presence throughout the trial eliminates the requirement for a signed waiver

of counsel as Appellant was instructed that standby counsel was available for aid and assistance

at any point during the trial process.

       Appellant’s conduct throughout the pre-trial proceedings demonstrated a complete lack of

cooperation, which implied a waiver of counsel:

       THE COURT: Sir, do you want [Defense Counsel] to stand by?

       DEFENDANT: I said I didn’t want her to represent me, Your Honor.

       THE COURT: I’m asking do you want her to stay with you in case you had
       questions?

       DEFENDANT: I said I didn’t want her to represent me.

       THE COURT: You don’t even want her in the room?

       DEFENDANT: No, I don’t want her to represent me. I would like you to answer
       the delegation of authority, sir.

       THE COURT: All right.

                                                ...


                                                 7
       DEFENDANT: I’m asking you to answer the delegation of authority, Your
       Honor.

       THE COURT: Sir, do you understand you’ll be here by yourself?

       DEFENDANT: She’s not with me, I’m not letting her represent me.

When asked questions about his understanding of the trial process and the consequences of

waiving counsel, Appellant again replied with irrelevant requests for the court’s “delegation of

authority.” The court’s decision not to present a written waiver of counsel was excusable. It is

clear that the attempted gamesmanship by Appellant was seriously interfering with the trial

proceedings. Thus, the trial court did not err in failing to present the written waiver to Appellant.

       Despite finding no reversible error by the trial court here, we note the importance of

obtaining, or at least attempting to obtain, a written waiver of counsel for the record. While

obtaining a signed waiver would have been futile in this instance, presenting the written waiver,

reading the waiver language into the record and noting the defendant’s refusal gives the

defendant another opportunity to sign the waiver and acknowledge his understanding of his

decision. If the defendant still refuses, presentation of the written waiver provides final and

definitive proof regarding the defendant’s decision to proceed without counsel after being fully

advised.

                                         III. Conclusion

       The judgment of the trial court is affirmed.




                                              ___________________________________
                                              ROY L. RICHTER, Judge

Sherri B. Sullivan, P.J., concurs
Colleen Dolan, J., concurs


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