          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                               GIBSON PAUL,
                                 Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                               No. 4D11-2420

                             [October 15, 2014]


  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen Miller, Judge; L.T. Case No. 11CF001695AMB.

   Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   The defendant appeals his convictions and sentences for first degree
murder with a firearm, aggravated assault with a firearm, shooting into an
occupied vehicle, and possession of a firearm by a convicted felon.1 He
raises three issues on appeal. We affirm on all, but write to discuss his
argument that the court erred in restricting his use of standby counsel.

    The charges arose out of an altercation between the defendant and one
of the victims. The defendant shot and killed the victim in her car, and
shot another victim. The details of the incident are irrelevant to the issue
to be addressed.




1
 The defendant was also charged with aggravated battery with a firearm, but was
acquitted on that charge.
                              Pre-trial Hearings

   Prior to trial, the defendant was assigned a public defender. Conflicts
arose between them about how to proceed with the case. The main
disagreement involved the defendant’s desire to expedite the case for trial.
While represented, the defendant filed a pro se demand for speedy trial,
which his counsel moved to strike. The defendant then decided to
represent himself and discharged his counsel.2

   After discharging counsel, the defendant again demanded speedy trial.
Noting that it was his choice, the judge asked the defendant whether he
thought “it would be beneficial to give [himself] an opportunity to do some
discovery?” The defendant declared he was ready and had demanded
speedy trial months ago. The court set the trial with the assigned public
defender appointed as standby counsel.

   At a subsequent hearing before trial, the judge conducted a Faretta3
hearing and explained the defendant’s right to have an attorney represent
him, and the benefits of having an attorney. Because of their ongoing
disagreement, standby counsel moved to withdraw:

      And Judge, I understand why we are appointed. It’s to assist
      the Court. So I don’t want the Court to think that I am not
      trying to help out with that. I just feel that we were – the
      Public Defender’s Office, we withdrew the last time Mr. Paul
      wanted to represent himself, so the Public Defender’s Office
      withdrew but the Court appointed myself as standby counsel
      which the Court has discretion to do. I just feel – but the
      purpose of that would be to kind of help the process move
      along.

    The judge responded, “No, the purpose of standby counsel is if this
gentleman ever has an epiphany during the course of the trial, someone is
available to step in at that moment and say okay, I will finish this trial.
That’s what it would be for.” Standby counsel then explained that he
would not be able to resume the trial for the defendant should the
defendant decide to let him take over: “We would not be prepared to go to
trial. I would waive speedy trial if I were to take over and properly work
up this case like it should be.” The judge then asked the defendant:

2  The trial judge transferred the case to the Mental Health Division for a
competency determination before proceeding.     The defendant was found
competent to proceed.
3 Faretta v. California, 422 U.S. 806 (1975).


                                     2
      THE COURT: [A] lot of people think it’s helpful to do discovery
      in order to prepare for a trial, do you agree with that?

      THE DEFENDANT: Yes, ma’am. I went through all of my
      discovery. I done went through my whole case.

      THE COURT: Okay. And you are good to go with whatever
      you have, that’s your position?

      THE DEFENDANT: Yes, ma’am.

   The defendant decided that he did not want his public defender as
standby counsel: “I don’t want him to standby. I don’t need him standing
by no one. Period. I don’t know why he is in the Courtroom today anyway.”
The court granted standby counsel’s motion to withdraw, but before doing
so, the court found that standby counsel was an experienced criminal
defense attorney:

      THE COURT: And that is at the Defendant’s specific request
      that you not even have standby counsel. Is that what you are
      asking for, sir?

      THE DEFENDANT: I asked for co-counsel.

      THE COURT: Well, you’re not a lawyer so you can’t have co-
      counsel.

      THE DEFENDANT: If I request to discharge my counsel, why
      would you have him as standby?

      THE COURT: In the event that you change your mind and
      you don’t want to represent yourself as a pro se non-lawyer.

      THE DEFENDANT: That won’t happen.

                             Trial and Verdict

   On the first day of trial, the court conducted another Faretta hearing,
reviewing the defendant’s highest level of education, whether he was under
the influence of drugs or alcohol, and whether he had ever been declared
incompetent. The court again emphasized the benefits of having an
attorney. After a brief recess, the court conducted yet another Faretta
hearing. The defendant stated that he wanted to represent himself.


                                    3
   At this point, the elected Public Defender for the Circuit intervened.
She advised the court that she had spoken with the defendant and told
him that if he wanted standby counsel, it would be the assigned public
defender because no one else knew anything about the case. The
defendant then decided that he did, in fact, want standby counsel. The
court reappointed the same public defender as standby counsel.

    The defendant conducted his own opening statement, with the State
lodging an objection after his first sentence. The defendant responded,
“I’m going to need more time.” The court reminded the defendant that he
had demanded a speedy trial and it was time for opening statement.

   After the defendant cross-examined the first witness, the court held a
sidebar with the State and the defendant. While it is unclear from the
record, it appears that the defendant began consulting with standby
counsel:

      THE COURT: Mr. [Paul], you are entitled to represent
      yourself. You are entitled to have standby counsel. You don’t
      have anything in the middle. So if and until you elect to bring
      [your standby counsel] back on board, you can’t consult back
      and forth. He’s either in or off, so do you want him to
      represent you?

      THE DEFENDANT: I got the names confused of the officers.

      THE COURT: Well, I don’t know what to help you with. You
      can either be represented by an attorney or not.

      THE DEFENDANT: So, what, waive my trial? Is it going to
      waive?

      THE COURT: That witness has gone. Whether you want to
      call him back, that’s up to you, but you can’t straddle the
      fence. You either have [standby counsel] or you don’t. He is
      not consulting with you. I’m going to have him sit in the back
      of the courtroom up until the time—

      THE DEFENDANT: If I say I want an attorney, I go stop?

      THE COURT: No.

      THE DEFENDANT: That’s what I thought. I was going to
      continue my trial if I bring him on I thought, that’s what I

                                    4
     thought.

     THE COURT: You want [standby counsel] to assist you or
     not?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: You do or you do not?

     THE DEFENDANT: Yes, ma’am.

     THE COURT: Okay. [Standby counsel].

     [STANDBY COUNSEL]: If that—this is what I talked about last
     week.

     THE DEFENDANT: I want to continue.

     [STANDBY COUNSEL]: In order for me to properly represent
     Mr. Paul, work has to be done, we have to take depositions.

     THE COURT: That’s not the way it’s going to work. Mr. Paul
     made the decision, he has been in court every single time. We
     have gone through the colloquy.        We talked about the
     education, the fact that he reads, writes English. We talked
     about the pros of having a lawyer, couldn’t really think of any
     pros of him representing himself. I advised him all along that,
     yes, he understands that question every time he comes into
     court, yes, he understands. We have had it three times today,
     yes, I understand that. Then if at any point Mr. Paul changes
     his mind, you step in, you go forward. Mr. Paul has created
     this situation.

     [STANDBY COUNSEL]: I understand that, Judge. I am not
     trying to argue with the Court. I am in no position to take
     over a first degree murder. I have had the case six weeks. I
     am not in a position to effectively represent Mr. Paul in going
     forward right now.

The defendant requested to have his standby counsel represent him.

   Standby counsel immediately moved for a mistrial reiterating that he
was unprepared. The judge denied the motion. Standby counsel then
requested a continuance until the next morning, to which the State

                                   5
objected due to witnesses who had travelled to be at trial that day. The
court denied the motion for continuance. The trial continued with standby
counsel now representing the defendant.

   After the State presented the testimony of another witness, standby
counsel again moved for mistrial, “I am not prepared to effectively cross-
examine this particular witness.” The trial court denied the motion. At
the end of the first day, standby counsel again moved for mistrial:

      THE COURT: Do you have any type of authority that would
      support that the fact that this gentleman has been through
      umpteen Faretta hearings, has always said – even went so far
      as to say that he didn’t even want you involved as standby
      counsel. He’s been evaluated to see whether he’s competent.
      He’s competent, it’s his choice. He can make his choice, he
      made it, so this is the position that he’s in. We are going to
      go forward. I’m not frustrated or anything with you. I
      understand you are laying a record. This is the position that
      Mr. Paul has found himself in based on the decision that Mr.
      Paul has made throughout the course of these proceedings.

      [STANDBY COUNSEL]: It’s just a matter of Defense being
      prepared for trial, that’s all. I’m being ineffective.

      THE COURT: Well, I don’t think that the ineffective—the fact
      that Mr. Paul elected to discharge his lawyer, demand a
      speedy trial, go to trial without having any discovery, that’s
      his choice, because we had multiple, multiple Faretta
      hearings. And, in fact, when he filed the Nelson hearing
      because you said you wanted to take the time to prepare for
      the case, I didn’t even let him have the Nelson hearing until
      he was evaluated to see whether or not he was competent.
      Whether it’s a good decision or bad decision to represent
      himself, that is a decision that he’s entitled to make and he
      made that.

  On the second day of trial, standby counsel renewed his motion for
mistrial:

      [STANDBY COUNSEL]: The Defense got appointed with no
      preparation done in this case whatsoever. Yesterday I was
      cross-examining witnesses I don’t even know who they are.

      THE STATE: Judge, I think this was not unexpected, and the

                                    6
      defendant put himself in this position by demanding speedy
      trial, by asking to represent himself and by having the trial
      started, and even one or two witnesses, I don’t remember how
      many already testified, by the time, he has now decided to
      have a lawyer. So because he has put himself in this position,
      he is not entitled to change the way that the Court is able to
      administer justice by asking for a continuance, trying to
      establish error. So we would object to any motion for mistrial
      being granted.

The court denied the motion.

   After the State rested, standby counsel moved for a judgment of
acquittal arguing that the State failed to make a prima facie case. The
judge denied the motion. The defendant briefly testified that he was
already out of state when the shooting occurred. Standby counsel again
moved for a judgment of acquittal. The judge denied the motion.

    The jury found the defendant guilty of first degree murder with a
firearm, aggravated assault with a firearm, shooting into an occupied
vehicle, and possession of a firearm by a felon. The court sentenced the
defendant to life in prison on the murder charge.4

   On appeal, the defendant argues that the trial court misunderstood the
role of standby counsel and erred in not allowing him to ask questions or
otherwise communicate with his standby counsel. He contends that,
because of the court’s improper restriction, he was forced to give up his
constitutionally guaranteed right to represent himself. The State responds
that the trial court clearly advised the defendant of the reason she was
appointing standby counsel, which she had the discretion to do, and that
this issue is not preserved and is based on speculative grounds.

                                 Preservation

   A defendant must preserve issues for appellate review by first raising
them in the trial court. Harrell v. State, 894 So. 2d 935, 939 (Fla. 2005).
Here, the defendant did not object to the trial court’s restriction on his
access to standby counsel. In fact, on more than one occasion, the

4 The court also sentenced the defendant to twenty consecutive years for the
aggravated assault with a firearm charge, fifteen consecutive years for the
shooting into an occupied vehicle charge, and fifteen years for the felon in
possession of a firearm charge, with a three year minimum mandatory to run
concurrent with the murder charge.

                                     7
defendant discharged standby counsel.           This claim is therefore
unpreserved for our review. See McKenzie v. State, 29 So. 3d 272, 283
(Fla. 2010) (finding the defendant’s claim that the trial court improperly
restricted his access to standby counsel was unpreserved because
defendant failed to object on those grounds).

    Even if the defendant had challenged the restricted use of standby
counsel, we see no error in the trial court’s appointment of standby
counsel for the purpose of conducting the trial should the defendant
change his mind about his representation. We review trial court decisions
regarding the right to self-representation for an abuse of discretion. Neal
v. State, 60 So. 3d 1132, 1134–35 (Fla. 4th DCA 2011).

                        The Role of Standby Counsel

    With some limitation, a defendant in a criminal trial has the right to
self-representation. Faretta v. California, 422 U.S. 806, 834 (1975). A
defendant who decides to represent himself bears the entire responsibility
for his defense, even if he is appointed standby counsel. Behr v. Bell, 665
So. 2d 1055, 1056–57 (Fla. 1996).

   A defendant has no constitutional right to standby counsel. Jones v.
State, 449 So. 2d 253, 258 (Fla. 1984). And the trial court has the
discretion to appoint standby counsel.        Id.   No defendant has a
constitutional right to “hybrid representation.” Sheppard v. State, 17 So.
3d 275, 279–80 (Fla. 2009).

   A criminal defendant is entitled to change his mind regarding self-
representation, but it is “implicit in Faretta that the right to appointed
counsel, like the obverse right to self-representation, is not a license to
abuse the dignity of the court or to frustrate orderly proceedings, and a
defendant may not manipulate the proceedings by willy-nilly leaping back
and forth between the choices.” Brown v. State, 45 So. 3d 110, 115–16
(Fla. 1st DCA 2010) (quoting Jones, 449 So. 2d at 259). In fact, standby
counsel’s role has been described as “assist[ing] the court in conducting
orderly and timely proceedings.” Behr, 665 So. 2d at 1056.

    The Supreme Court of the United States touched upon the role of
standby counsel in both Faretta and McKaskle v. Wiggins, 465 U.S. 168
(1984). In Faretta, the Court recognized that a trial court may “appoint a
‘standby counsel’ to aid the accused if and when the accused requests
help, and to be available to represent the accused in the event that
termination of the defendant’s self-representation is necessary.” 422 U.S.
at 834 n.46. In McKaskle, the Court further explained:

                                    8
      A defendant’s Sixth Amendment rights are not violated when
      a trial judge appoints standby counsel—even over the
      defendant’s objection—to relieve the judge of the need to
      explain and enforce basic rules of courtroom protocol or to
      assist the defendant in overcoming routine obstacles that
      stand in the way of the defendant’s achievement of his own
      clearly indicated goals. Participation by counsel to steer a
      defendant through the basic procedures of trial is permissible
      ....

McKaskle, 465 U.S. at 184.

    Our supreme court discussed standby counsel in State v. Knight, 866
So. 2d 1195 (Fla. 2003). There, the state appealed an order vacating a
death sentence and granting the defendant a new sentencing proceeding.
Id. at 1198. The defendant cross-appealed and filed a petition for writ of
habeas corpus, asserting five claims of ineffective assistance of appellate
counsel. Id. at 1203. One of those claims was the failure to raise any
issues regarding the limitation on his use of standby counsel during the
trial. Id.

   The court reviewed the transcript and found that the defendant
specifically refused assistance of standby counsel and “wanted to make
sure that there was no insinuation or appearance that [standby counsel]
was in any way acting as his counsel.” Id. at 1205. The court found it
clear that the defendant did not want it to appear that he had acquiesced
to the limited role that his standby counsel performed. Id. The court
denied the petition. Id. at 1210.

   Similarly here, the defendant refused standby counsel and, in fact, had
discharged his lawyer before and after his lawyer was appointed as
standby counsel. “I don’t want him to standby. I don’t need him standing
by no one. Period. I don’t know why he is in the Courtroom today anyway.”
We fail to see how any limitation on the use of standby counsel can now
be argued when the defendant made clear that he did not want standby
counsel.

    We acknowledge the herculean effort of the public defender to help this
defendant before and during the trial. At every turn, the public defender
gave sage advice to forgo a demand for speedy trial, to properly prepare for
trial, and undertake discovery. Unfortunately, that advice went unheeded
by the defendant.

   We also acknowledge the patience and diligence of the trial judge to

                                     9
insure the defendant was competent, aware of the advantages of having
counsel and the disadvantages of representing himself, and give him
multiple opportunities to reconsider his decision. In the end, the
defendant chose to represent himself. The outcome was not unexpected.
Given the defendant’s choice, which is guaranteed by the Constitution, we
see no error in the court’s handling of standby counsel or any of the other
issues raised.

   Affirmed.

CIKLIN, J., concurs specially with opinion.
LEVINE, J., concurs specially with opinion, in which CIKLIN, J., concurs.

LEVINE, J., concurring specially.

   I concur because there is no evidence in the record that the trial court’s
statements or actions actually prevented appellant from consulting with
standby counsel. However, I write to emphasize that the trial court defined
the role of standby counsel too narrowly by highlighting only one of the
two purposes for appointing such counsel as enunciated by the United
States Supreme Court.

    As quoted by the majority, the trial court stated that standby counsel
had only one purpose. During a pretrial hearing, the trial judge said, “No,
the purpose of standby counsel is if this gentleman ever has an
epiphany during the course of the trial, someone is available to step in at
that moment and say okay, I will finish this trial. That’s what it would
be for.” (emphasis added). The trial court later reiterated this during the
trial when it informed appellant that he could either represent himself or
have standby counsel fully represent him, but could not “have anything in
the middle.” The court told appellant, “[I]f and until you elect to bring
[counsel] back on board, you can’t consult back and forth,” and that
“[y]ou either have [counsel] or you don’t. He is not consulting with you.
I’m going to have him sit in the back of the courtroom up until the
time . . . .” (emphasis added). At that point, appellant stated that he
wanted counsel to represent him. Appellant’s counsel moved for a mistrial
several times based on his unpreparedness and alternatively requested a
continuance, but the trial court denied all his requests. It is clear that the
trial court felt that appellant could either have the standby counsel
represent him as his counsel or have standby counsel on standby and not
consult or speak with appellant.

  In Faretta v. California, 422 U.S. 806 (1975), the United States Supreme
Court recognized the role of standby counsel. “Of course, a State may—

                                     10
even over objection by the accused—appoint a ‘standby counsel’ to aid the
accused if and when the accused requests help, and to be available to
represent the accused in the event that termination of the defendant’s self-
representation is necessary.” Id. at 834 n.46 (emphasis added) (citing
United States v. Daugherty, 473 F.2d 1113, 1124–26 (D.C. Cir. 1972)).

    In McKaskle v. Wiggins, 465 U.S. 168 (1984), the Supreme Court
further explained the purposes and functions of standby counsel. The
court stated that standby counsel could assist “the pro se defendant in
overcoming routine procedural or evidentiary obstacles to the completion
of some specific task, such as introducing evidence or objecting to
testimony, that the defendant has clearly shown he wishes to complete.”
Id. at 183.      Further, standby counsel may help the “defendant’s
compliance with basic rules of courtroom protocol and procedure,” as well
as “steer a defendant through the basic procedures of trial.” Id. at 183–
84. See also United States v. Bertoli, 994 F.2d 1002, 1018–19 (3d Cir.
1993) (“Essentially, standby counsel has two purposes—to act as a safety
net to insure that the litigant receives a fair hearing of his claims and to
allow the trial to proceed without the undue delays likely to arise when a
layman presents his own case. Alternately, we can identify at least four
functions that standby counsel can serve: (1) Standby counsel must be
available if and when the accused requests help. (2) Standby counsel must
be ready to step in if the accused wishes to terminate his own
representation. (3) The court may appoint standby counsel in order to
explain and enforce the basic rules of courtroom protocol to the accused.
(4) The court may appoint standby counsel in order to overcome routine
obstacles that may hinder effective pro se representation.”) (citations
omitted).

   Of course, “Faretta does not require a trial judge to permit ‘hybrid’
representation” nor is standby counsel constitutionally required.
McKaskle, 465 U.S. at 183. However, where the trial court appoints
standby counsel, it needs to be mindful of the two objectives and roles of
standby counsel as referenced in Faretta and McKaskle: one, to aid the
accused if and when the accused requests help; two, to be available to
represent the accused when the accused withdraws his right to self-
representation.

   Clearly, standby counsel is envisioned as having a greater role than
merely being silent at the back of the courtroom ready to participate, if
and only when the defendant acquiesces to waiving his right to self-
representation and allowing standby counsel to take over as counsel.
Because this is what the trial court here proposed, I find the court was too
narrow in its construct of standby counsel. Nevertheless, although implied

                                    11
in the record, there is no evidence that the court actually prevented
appellant from speaking with standby counsel. Thus, I concur and write
only to highlight that once standby counsel is appointed, a trial court
should not prevent a defendant from seeking the aid and assistance of
standby counsel to “explain and enforce the basic rules of courtroom
protocol” and to overcome “routine procedural or evidentiary obstacles”
that “may hinder effective pro se representation” such as introducing
evidence or objecting to testimony. Bertoli, 994 F.2d at 1019; see
McKaskle, 465 U.S. at 183; Faretta, 422 U.S. at 834 n.46.

CIKLIN, J., concurring specially.

   I also write separately to caution readers of this opinion that the
majority opinion does not either expressly or impliedly affirm or in any way
endorse the trial court’s apparent suggestion that—once a trial judge
exercises his or her discretion to appoint standby counsel—the court may
then attach a metaphorical asterisk by imposing limitations on the
defendant’s access to his attorney’s advice and counsel.

   As a trial judge for over fourteen years, I can appreciate the trial court’s
exasperation quite understandably caused by the maddening
indecisiveness of the defendant—perhaps even bordering on an intentional
manipulation of the proceedings. Indeed, this is one of those situations
that best demonstrates the exceedingly difficult job of a Florida trial judge.
A truly wonderful, rewarding, and gratifying occupation indeed but one
which can also cause many a sleepless night and test the patience and
stamina of even the most Job-like jurist.

   Because it is not clear from the record that the defendant actually tried
to consult with standby counsel, I concur with the majority and affirm the
conviction.

  And I wholeheartedly join with Judge Levine in offering a cautionary
warning to our trial court colleagues.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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