        THE STATE OF SOUTH CAROLINA
             In The Supreme Court

The State of South Carolina, Petitioner,

v. 


Steven Louis Barnes, Respondent. 


Appellate Case No. 2014-001966 




        IN THE ORIGINAL JURISDICTION



       On Writ of Certiorari to Edgefield County
       Diane S. Goodstein, Circuit Court Judge


                 Opinion No. 27538 

        Heard April 8, 2015 – Filed July 1, 2015 



                      AFFIRMED 



Attorney General Alan McCrory Wilson, Chief Deputy
Attorney General John W. McIntosh, Senior Assistant
Deputy Attorney General Donald J. Zelenka and Senior
Assistant Attorney General Melody Jane Brown, all of
Columbia; and Solicitor Donald V. Myers, of Lexington,
for Petitioner.

Jeffrey P. Bloom; and Chief Attorney William Sean
McGuire and Staff Attorney Emily Therese Kuchar, both
of Capital Trial Division of SC Commission on Indigent
Defense, all of Columbia, for Respondent.
JUSTICE PLEICONES: We granted the State's request for a common law writ of
certiorari to review a pretrial circuit court order in this capital retrial proceeding.
We affirm the circuit court's order.

Respondent's first capital conviction and sentence were reversed on appeal because
he was denied his constitutional right to represent himself at trial. State v. Barnes,
407 S.C. 27, 753 S.E.2d 545 (2014); see Faretta v. California, 422 U.S. 806
(1975). In Barnes, the Court declined to adopt the heightened competency
standard for a defendant who seeks to represent himself which is permitted, but not
required, by Indiana v. Edwards, 554 U.S. 164 (2008). Since the Edwards
standard had been applied by the circuit judge, the Court held it was "constrained
to reverse" respondent's conviction and sentence. Id. at 37, 753 S.E.2d at 550.

The State plans to retry respondent, and has indicated it will again seek the death
penalty. Respondent sought the appointment of counsel to represent him in these
new proceedings. At the appointment hearing, the State argued that in seeking
representation for the retrial, respondent essentially conceded that his prior
conviction was constitutionally obtained. The State contended that in light of this
concession, respondent's original conviction and sentence should be reinstated and
this Court should proceed to review the issues raised but not reached in the first
appeal.1 The circuit court denied the State's request.



1
 The dissent does not address the State's argument, reasoning instead that
"Respondent has waived his right to counsel in his second trial . . . ." From this
waiver finding, the dissent concludes not that respondent must proceed pro se at
this retrial, but rather that the waiver should result in the reinstatement of his first
conviction. Thus, the dissent would not accord respondent a review of the non-
Faretta issues raised in his first appeal, a review that even the State recognizes is
appropriate. The dissent's position rests not upon any constitutional or procedural
basis, but instead upon its characterization of respondent's motives as "an effort to
manipulate the system and pollute the administration of justice." Even if we
believe that a criminal defendant's exercise of his constitutional rights stem from
impure motives, that motivation alone is not a basis to deny him these rights.
Further, while it is unethical for an attorney to engage in conduct which tends to
pollute the administration of justice (Rule 7(a)(5), Rule 413, SCACR), we are
unaware that this principle applies to a criminal defendant.
                                       ISSUE

             Must this Court reconsider its decision in State v. Barnes, 407
             S.C. 27, 753 S.E.2d 545 (2014), in light of respondent's request
             for counsel in his second trial?

                                    ANALYSIS

The State argues that by requesting counsel at a pretrial hearing, respondent has
conceded that there was no constitutional infirmity in his first trial. Before
addressing the merits of his claim, we look first at the procedural hurdle which the
State must clear.

In order to effect a review of respondent's first appeal, this Court would need to
recall the remittitur from the circuit court. "In order to justify this court in
exercising the unusual power of recalling the remittitur after it has been sent down,
a very strong showing would be required that the remittitur was sent down through
some mistake or inadvertence on the part of this court or its officer . . . ." State v.
Keels, 39 S.C. 553, 17 S.E. 802 (1893). The State cites no authority, and we are
aware of none, that permits the remittitur to be recalled, not because of an error or
inadvertence on the part of the Supreme Court, but rather because of post-remittitur
conduct by a party. Accordingly, we do not believe that even if we were to find
merit to the State's position, that we would be empowered to grant the relief it
seeks. See also Earle v. City of Greenville, 84 S.C. 193, 65 S.E. 1050 (1909).2 As
explained below, we find no authority supporting the State's position in this
matter.3

2
  "[W]hen points arising in a case before this Court have been decided, they
become res judicata, and, when the remittitur has been sent down, this Court loses
jurisdiction, and cannot, therefore, in the further progress of the case, render a
different decision upon the points decided, so as to affect the particular case in
which the decision was rendered." Id. at 196, 65 S.E. at 1051.
3
  Even if we were to find merit to the State's position, the issue would not be ripe.
Respondent's right to self-representation is a trial right, and one that he may seek
to exercise under state law at any time up until that trial commences. See State v.
Winkler, 388 S.C. 574, 698 S.E.2d 596 (2010). See McKaskle v. Wiggins, 465 U.S.
168, 178 (1984) (The "core" of the right to self-representation is the defendant's
right "to preserve actual control over the case he chooses to present to the jury.").
The State relies upon three decisions to support its contention that respondent's
original conviction should be reinstated, and the appellate issues not reached in the
appeal be considered now, if he persists in seeking counsel at his second
proceeding: United States v. Johnson, 223 F.3d 665 (7th Cir. 2000); Edwards v.
Commonwealth, 644 S.E.2d 396 (Va. Ct. App. 2007); and People v. Carson, 104
P.3d 837 (Cal. 2005). Read correctly, none of these decisions provide authority for
the State's position.

In Johnson, the question on appeal was whether the defendant waived his right to
represent himself at trial. The court held the defendant "acquiesced in the denial
by judicial inaction of his motion and thereby deliberately relinquished his right of
self-representation." Johnson, 223 F.3d at 669. Despite finding waiver, the
opinion goes on in obiter dictum:

             We add that as he has made no representation that if we order a
             new trial he will persist in his desire to represent himself, his
             claim that his right of self-representation was infringed may be
             moot, as well as having no merit for the reasons just indicated.
             For if as we expect he would be represented by lawyers at any
             new trial, he would not have vindicated the right of self-
             representation upon which he premises his appeal from the
             denial of that right. The point is not that at a subsequent
             trial he would be estopped to invoke his right to counsel, an
             argument rejected in the only cases to have considered the
             issue. United States v. McKinley, 58 F.3d 1475, 1483 (10th Cir.
             1995); Johnstone v. Kelly, 812 F.2d 821 (2d Cir. 1987) (per
             curiam). The point is rather that if he wants on remand exactly
             what he had in his first trial, namely representation by
             competent lawyers, it is difficult to understand what he lost by
             the denial of his motion: he had at the first trial what he wants
             at the second. (emphasis supplied).

Id.



That respondent seeks attorneys at this juncture, attorneys who have access to
witnesses, investigators, discovery, law libraries, and other resources, does not
mean that he will not choose to exercise his constitutional right to proceed pro se at
the next trial.
While this dicta merely speculates about the consequences had the court found the
defendant was entitled to a new trial, it also recognizes that precedent is squarely
against the position now espoused by the State. See United States v. McKinley,
supra; Johnstone v. Kelly, supra; see also United States v. Kennard, 799 F.2d 556,
557 (9th Cir. 1986) ("We reject the government's contention that, once a waiver of
counsel has been given, a defendant is forever precluded from asking for an
attorney in a later proceeding"); Buhl v. Cooksey, 233 F.3d 783, 807 fn.25 (3rd Cir.
2000); State v. Figueroa, 897 A.2d 1050, 1053 (N.J. 2006) (and cases cited
therein). The State nowhere addresses McKinley or Johnstone, despite the fact that
the dicta it relies upon in Johnson expressly acknowledges them.

The State's reliance on the Virginia Court of Appeals' decision in Edwards v.
Commonwealth, supra, is also misplaced. The Edwards court remanded the case
to the trial court for reconsideration of the defendant's Faretta request. The court
indicated that if on remand the defendant withdrew his Faretta request, no retrial
would be necessary. This is only logical since the trial court was being asked to
make an initial Faretta determination. This decision cites the dicta from Johnson,
supra, for the proposition that the defendant must persist in his Faretta request on
remand or have his conviction reinstated. This Court, however, did not remand
respondent's first appeal, but rather decided the merits of his Faretta issue, agreed
with respondent, and reversed his conviction and sentence, leaving the State to
decide whether to retry him. Finally, the issue in People v. Carson, supra, was
whether the trial court erred in terminating the defendant's self-representation
because of the defendant's pre-trial out-of-court conduct. Carson reversed the trial
court's order, but instructed the trial court to hold another hearing to determine if
the defendant's Faretta rights had been properly terminated. If they were found to
have been, the judgment was to be reinstated, but if not, the State could retry him.
In our view, Carson adds nothing to the State's contention that at a second trial
respondent must proceed pro se or have his first appeal reinstated and the non-
Faretta issues decided. If relevant at all, Carson holds that a Faretta violation
mandates reversal of a criminal defendant's conviction.

The State relies on appellate decisions that remanded the question of the
defendant's waiver of his right to counsel to the trial court for reconsideration. It is
apparent to us that the State now regrets that in respondent's first appeal it chose to
argue only that the trial court's adoption and application of the standard announced
in Edwards, supra, was correct, rather than to ask in the alternative for a remand if
the Court were not to adopt Edwards. The State did not seek this alternative relief,
we decided the appeal on its merits, and properly returned the remittitur to the
circuit court. Respondent is entitled to the new trial, with all its attendant
constitutional rights, pursuant to our decision in his first appeal.

We also note with concern the implication of the State's argument. The State's
position is that the erroneous denial of a defendant's sixth amendment right to self-
representation at the first proceeding results in that defendant having a diminished
sixth amendment right in a second trial. In other words, the State seeks to punish
the defendant whose constitutional rights have been violated, a concept that is
contrary to both justice and common sense. Finally, it appears that the State's
argument is an attempt to introduce a prejudice component into what is admittedly
a structural error. See United States v. Gonzalez-Lopez, 548 U.S. 140, 150-51
(2006) (prejudice is irrelevant when the constitutional right to self-representation is
violated). As the Supreme Court explained "[s]ince the right of self-representation
is a right that when exercised usually increases the likelihood of a trial outcome
unfavorable to the defendant, its denial is not amenable to 'harmless error' analysis.
The right is either respected or denied; its deprivation cannot be harmless."
McKaskle, 465 U.S. at 177, fn. 8. To the extent the State's argument can be
characterized as "no harm, no foul," it conflicts with the United States Supreme
Court's pronouncements on the sanctity of an individual's sixth amendment right to
counsel/right to self-representation.

                                   CONCLUSION

For the reasons given above, the circuit court's ruling is

AFFIRMED.

BEATTY and HEARN, JJ., concur. KITTREDGE, J. concurring in result
only. TOAL, C.J., dissenting in a separate opinion.
CHIEF JUSTICE TOAL:             I respectfully dissent. I would find that Respondent
waived his right to insist on counsel by arguing and obtaining a ruling that he was
deprived of his right to represent himself in his first trial. In my opinion, such
waiver should be assessed on a case-by-case basis; however, the facts of this case
warrant a finding of waiver.

        Here, Respondent has already received a full and fair trial. However, in his
initial trial, Respondent took the position that he desired to represent himself.
Pursuant to Indiana v. Edwards,4 the trial judge decided that Respondent was not
capable of representing himself because of his lack of understanding of the
complexities inherent in a death penalty case. We reversed on appeal, finding the
judge erred in applying the Edwards competency standard to Respondent's request
to waive his right of counsel and proceed pro se. See State v. Barnes, 407 S.C. 27,
37, 753 S.E.2d 545, 550 (2014).

       Now that he has been granted a new trial on this basis, Respondent is
requesting counsel. In my opinion, he cannot have it both ways. Therefore, I
would find that Respondent has waived his right to counsel in his second trial
because he already had a trial where he was represented by counsel. See Barnes,
407 S.C. at 35, 753 S.E.2d at 550 ("A South Carolina criminal defendant has the
constitutional right to represent himself under both the federal and state
constitutions. A capital defendant, like any other criminal defendant, may waive
his right to counsel. So long as the defendant makes his request prior to trial, the
only proper inquiry is that mandated by Faretta [v. California, 422 U.S. 806
(1975)]." (internal footnote omitted) (internal citations omitted)). Respondent's
conduct here should be examined for what it is: an effort to manipulate the system
and pollute the administration of justice.

        For these reasons, I would reinstate Respondent's prior conviction.




4
    554 U.S. 164 (2008).
