                                                   Supreme Court

                                                   No. 2013-281-C.A.
                                                   (P3/12-3306A)

      State                      :

        v.                       :

  Ana M. Cruz.                   :




NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone 222-
3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
                                                                     Supreme Court

                                                                     No. 2013-281-C.A.
                                                                     (P3/12-3306A)

                      State                       :

                        v.                        :

                  Ana M. Cruz.                    :

               Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

         Chief Justice Suttell, for the Court. The defendant, Ana M. Cruz, appeals from a

Superior Court judgment of conviction, having been found guilty on two counts: (1) resisting

arrest in violation of G.L. 1956 § 12-7-10; and (2) disorderly conduct in violation of G.L. 1956

§ 11-45-1. On appeal, the defendant argues that her right to counsel, guaranteed by the Sixth

Amendment to the United States Constitution and article 1, section 10 of the Rhode Island

Constitution, was violated when the trial justice allowed her to represent herself at trial without

first determining whether she had made a knowing and intelligent waiver of her right to counsel.

This case came before the Supreme Court pursuant to an order directing the parties to appear and

show cause why the issues raised in this appeal should not be summarily decided.             After

considering the parties’ written and oral submissions and reviewing the record, we conclude that

cause has not been shown and that this case may be decided without further briefing or

argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior

Court.




                                                -1-
                                                  I

                                 Facts and Procedural History

       On July 7, 2012, police officer Jared Hardy of the Cranston police department received a

dispatch call regarding a “report of a one-year-old walking around nude in the street” near 57

Lakeside Drive. Because that area in Cranston was part of Officer Hardy’s “beat,” he drove

there immediately in order to respond to the call. Officer Hardy arrived, ninety seconds later, at

57 Lakeside Drive in his patrol car and dressed in his police uniform. After scanning the area for

children, he did not find a nude child in front of that address. Therefore, he approached the

residence at 57 Lakeside Drive and unsuccessfully tried to “raise the resident.” He testified that

he rang the doorbell, as well as knocked several times. Officer Hardy testified that he heard

“children’s voices coming from the backyard,” which led him to go around to the back, because

“that[] [was] the nature of the call.” Next, he entered the backyard; he testified that he did not

have to pass through a fence or gate to do so.

       Once in the backyard, Officer Hardy testified, he saw two young males, approximately

five and three years of age. Further, he described, “[t]he three-year-old was wearing a T-shirt,

underwear, no pants and he was playing around in a patio that had several pieces of broken glass

spread about it.” Officer Hardy testified that the backyard was on a steep hill, which led directly

down to a lake without anything besides “a lightly wooded area” obstructing access to the water.

He stated that these children were not being supervised at the time in the backyard. At trial,

defendant’s daughter, Esmerelda Morontoro, testified that she was in the upstairs window at the

time throwing a toy parachute down to the children while they were playing in the backyard.

While still in the backyard, the officer questioned the children about the present location of their

parents. In response, the smaller child indicated that his mother was inside and offered to bring


                                                 -2-
the officer to her. Officer Hardy testified that “[t]here [wa]s a three-year-old I don’t think should

be unsupervised especially around a lake, pantless and barefoot in a glassy area. I think it was a

dereliction of my duty if I walked away from that three-year-old with no adult supervision.”

Consequently, the officer followed the two children into the home to find the boy’s mother.

          After walking through a playroom and kitchen, he entered a living room where he came

upon four women in conversation. Officer Hardy testified that defendant was among the group

and that he asked the women which one was the mother of the scantily-clad three-year-old. At

trial, defendant testified that she was cleaning up the living room when the officer entered her

home and she asked, “could I help you?” Because Officer Hardy entered the home to find the

smaller child’s mother, he continued to pursue that line of questioning with the women. At trial,

the officer testified that he believed one of the women, Crystal Bretton, was the smaller child’s

mother based upon his observations of the child pointing to her and her ensuing nervous

demeanor. According to defendant’s testimony, Bretton was upstairs when the officer entered;

shortly after she came downstairs, Officer Hardy said that he was going to call the Department of

Children, Youth and Families (DCYF). Officer Hardy, however, repeatedly denied that he ever

made any call or reference to DCYF.

          Officer Hardy testified that defendant was “getting between me and [Bretton] and

beginning to raise her voice.” Furthermore, he testified that defendant was “pointing her finger

in my face. Everything she sa[id] [wa]s in an aggressive manner, you don’t have a right to be

talking to my daughter,[1] you don’t have the right to be in here.” Officer Hardy testified that

defendant had put her hands on him “several times,” including pushing his hand down as he tried

to write. As this behavior continued, tensions escalated among the parties. Abruptly, Bretton



1
    The defendant stated to the trial justice that Bretton was her daughter.
                                                  -3-
ran from the house and Officer Hardy pursued her. This swift departure prompted defendant to

go out into the street where, according to the officer, she yelled, “you don’t have the right to ask

her any questions, don’t tell him anything.” While defendant, Officer Hardy, and Bretton were

outside, the melee intensified; Officer Hardy testified that defendant grabbed Bretton and told

her to run to the house, then the officer grabbed Bretton and felt defendant “jump onto [his]

back.” 2 Officer Hardy explained that he used his shoulder radio to call for backup, saying

“they’re fighting with me.” He further testified that this trio then re-entered the house with

defendant still on his back. Soon after other police officers arrived, Officer Hardy was finally

able to handcuff and arrest defendant when he “pushed [defendant] into a bedroom and pushed

her facedown on the bed.” After the arrest, the officer escorted defendant outside and placed her

in a police cruiser. Subsequently, Bretton was also apprehended and arrested.

       Following the chaotic events at her home, defendant was charged with: (1) assault and

battery in violation of G.L. 1956 § 11-5-3; (2) resisting arrest in violation of § 12-7-10; and (3)

disorderly conduct in violation of § 11-45-1. After a District Court trial on November 28, 2012,

defendant was found not guilty of assault and battery and guilty of resisting arrest and disorderly

conduct. The defendant received a one-year guilty filing on the resisting arrest offense and

twenty hours of community service on the disorderly conduct offense. The defendant appealed

her conviction to the Superior Court on November 28, 2012. A jury trial occurred in the

Superior Court on June 11 and 13, 2013, on the counts of resisting arrest and disorderly conduct.




2
  Following Officer Hardy’s testimony regarding these alleged actions of defendant, the trial
justice instructed the jury that defendant was found not guilty of the charge of assault in a prior
proceeding before a different judge. Subsequently, the trial justice in her jury instructions told
the jurors that they should not consider any evidence of alleged facts giving rise to the assault
charge of which defendant was previously found not guilty in District Court.
                                               -4-
                                      Waiver of Counsel

       Prior to the trial, the trial justice offered defendant, who at the time was represented by

counsel, the opportunity to accept a one-year filing, during which period defendant would

maintain her not-guilty plea on the condition that she “keep the peace and be of good behavior.”

The charges would then be dismissed. The defendant rejected the offer, and the trial justice

proceeded to empanel a jury. 3



3
 The trial justice engaged in a colloquy with defendant regarding her option to maintain her not-
guilty plea on a one-year filing rather than proceed to trial, a portion of which we quote below:
                        “THE COURT: * * * If you abide by that condition of
                being peaceful and not committing any new crimes for a one-year
                period, after the year ends, everything, all these records, are
                destroyed, the case goes away completely. So that is my intention
                here because it allows you to continue to say not guilty, you get the
                benefit of not having a jury find you guilty and potentially being
                sentenced more harshly than you were in the District Court. You
                don’t have to admit guilt. * * *

                        “THE DEFENDANT: Your Honor, the way I see things is
               no matter what it is I’m still guilty. We are in my own home and
               this officer comes into my back door. We haven’t done anything
               wrong. He comes in. * * * I’m Spanish. I have never had any
               problems. I lived there for seven years. I’m hard-working in the
               community. I do a lot of community work all my life, plus I have
               my job and I feel that my rights were violated. If I decide to take
               this deal, no matter what, they are allowed to come back into my
               house and find me guilty of anything because this is not the first
               time that a police officer comes into my home without me opening
               my door and accusing. I am not drug dealing, I am not a prostitute
               and I am not a thief. Because I’m Spanish, I’m in the wrong
               neighborhood.

                         “* * *

                         “THE COURT: Even though I’m saying that you’re not
               guilty?
                       “THE DEFENDANT: Your Honor --
                       “THE COURT: Are you telling me that you would rather
               have a jury trial?
                       “THE DEFENDANT: Yes.
                                              -5-
       Partway through jury selection, after the luncheon recess, defendant’s counsel informed

the trial justice that defendant had told him that she wanted to represent herself at trial. The trial

justice then engaged in a detailed discussion with defendant on the record regarding her decision

to proceed without representation. Because defendant’s knowing and intelligent waiver of her

right to counsel lies at the heart of this appeal, we reproduce the colloquy in its entirety:

                       “THE DEFENDANT: Yes, your Honor. I believe if I don’t
               have a chance to get another lawyer, I would like to represent
               myself.

                      “THE COURT: Well, the problem is we’re in the middle of
               picking a jury and you wanted a trial this morning.

                        “THE DEFENDANT: Yes.

                      “THE COURT: You had no trouble with your lawyer then.
               You had no trouble with your lawyer, to my knowledge, while we
               were picking the jury and I’m going to finish the trial.

                     “THE DEFENDANT: The problem was when I came out
               what my lawyer has told me I feel that I could do it better myself.

                        “THE COURT: So do you want to represent yourself in this
               trial?

                        “THE DEFENDANT: Yes.

                       “THE COURT: Do you understand that you’ll be required
               to do everything at this point?

                       “THE DEFENDANT: Your Honor, I do not know how to
               write and read. Is that a problem? If I represent myself, would that
               be a problem?

                        “THE COURT: Do you know how to represent yourself?

                        “THE DEFENDANT: No, your Honor.



                        “THE COURT: Okay, let’s have a trial. I understand your
               introspective. The state wants to push this case to trial. We’ll go,
               all right?”
                                                 -6-
       “THE COURT: Well, how do you intend to proceed on
your own?

        “THE DEFENDANT: What I believe is whatever they say
and whatever I believe that it’s not. I’m going to say things how it
really happened and I would like to have myself say exactly what
happened and I would not hold anything back to help my own
case.

        “THE COURT: There are, I think, three choices for you at
this point given where we are, okay? You can have [counsel]
represent you still, you can represent yourself which means you
have to pick the jury. You have to follow our rules in doing that.
You have to be able to examine any witness that the state puts on
the stand, if you wish to do that.

       “THE DEFENDANT: That’s fine, your Honor.

        “THE COURT: And alternatively, we can go back to the
plan that I said this morning which allows you to maintain your not
guilty plea and keep the peace and be of good behavior.

       “THE DEFENDANT: I don’t believe in that. I believe --

       “THE COURT: Well, I can do it without your agreement.

        “THE DEFENDANT: I haven’t done anything wrong, your
Honor. My house has been violated more than one time and this
has got to stop.

       “THE COURT: It would not be admitting you did anything
wrong, just the opposite. It would be you saying I’m not guilty and
the Court agreeing that you can maintain that belief.

       “THE DEFENDANT: My problem there, your Honor, is
the same way. If you said that I have to stay for one year, I don’t
have to go out to look for the trouble, they came to my home. They
could do it again. This has been going on since I moved there.
They want me to move out. I’m a homeowner. My husband died.
I’m not going anywhere. I’m fifty-two years old. There, this is my
problem. If I take your plea, they could come to my house and do
anything. I am the only Spanish one there. There was other
Spanish people, they made them move. The people that I bought
the house from, they always were Spanish and they move and after
I bought the house they told me the truth why they got rid of the
house for the same problem I’m going through right now and they

                               -7-
want me out. They’re going to come back and say anything that I
have done, not doing anything. I cannot run away from this
problem. I’m going to confront this problem. I have not done
anything wrong. My kids are teachers.

        “THE COURT: I understand.

        “THE DEFENDANT: My kids are supervisors.

        “THE COURT: Listen to me, Ms. Cruz. This is why I’m
saying that you maintain your not guilty plea. That’s why I don’t
do that in very many cases. It would allow you to say I’m not
guilty. Yes, it would keep you on probation for a year. You don’t
want that?

        “THE DEFENDANT: Your Honor, if I accept this, I have
not done anything wrong. I will be on probation. Any officer could
come back in my house and the same thing they have right now.
Where does that leave me? Go to jail for not doing anything just
because I bought a house in a white neighborhood? That’s the only
wrong thing I have done, move into the wrong area, that’s all I
have done. I have been working so many years in the community.
Everybody loves me. I’m respectful. I’m always helping kids.
Where does that put me? I could go to jail because they don’t want
me to be in the neighborhood. They don’t want me there in my
community because I’m Spanish. I have not been any trouble. I’m
fifty-two years old.

        “THE COURT: Why do you think you would be going to
jail?

        “THE DEFENDANT: Because they invented all things.
They came in my home, okay, and they’ve been coming before
this. They come to my house. They come inside my house, police
officers. I have a complaint. They have come into my home every
time I’m in the country with not me opening my door. They have
coffee in my driveway. What does that call? There is no control
instead of me moving out and I’m not going to move out. I bought
that house. I work so hard in my life to have today what I have.

       “THE COURT: Let’s go back to your options. We’re
picking a jury. You wanted a jury. You wanted a trial.

        “THE DEFENDANT: Yes.



                              -8-
       “THE COURT: The only question is do you want to
represent yourself? Do you want [counsel] to continue representing
you?

        “THE DEFENDANT: I will represent myself.

        “THE COURT: And you understand that if something goes
wrong during you representing yourself, I may have no choice but
to suspend that trial. It’s a difficult thing to represent yourself. I’m
willing to let you do it. I’ve seen people do it before and do it
successfully but you have to do that and play by the rules that
apply in the courtroom.

        “THE DEFENDANT: I will do it, your Honor.

       “THE COURT: Do you want [counsel] to stand by so that
if you need to talk to him, you can talk to him? If you have a
question that you don’t know what to do, you can ask him?

       “THE DEFENDANT: As long as I say what really
happened, it’s fine, because he doesn’t want me to say exactly
what happened. He wants me to go along with everything. I don’t
believe in that. I believe in saying what happened. I don’t care if
they believe me or not.

        “THE COURT: I have another suggestion, how about this:
[counsel] continues to act as your lawyer, he helps you pick a jury,
he makes an opening statement, if you want and he wants to,
saying what your side of the story is. If he wants, he thinks that’s
an advisable thing, he can do that later. He can cross examine the
officer on your behalf and then the time will come during this trial
where you will have to make a decision whether you want to
testify or not, okay. You can talk to [counsel] about that and I’ll
address both of you at that point.

        “THE DEFENDANT: That’s fine, your Honor.

        “THE COURT: Does that work?

        “THE DEFENDANT: (NONVERBAL RESPONSE).

        “THE COURT: You sure?

        “THE DEFENDANT: (NONVERBAL RESPONSE).

        “THE COURT: Do you have confidence in him?

                                 -9-
       “THE DEFENDANT: No.

        “THE COURT: Do you have enough confidence to handle
the parts of the trial up to the point where you would testify? It’s
your decision whether you want to take the stand or not, it’s your
decision.

       “THE DEFENDANT: I’ll do it, your Honor.

        “THE COURT: I don’t want to make you do it. You can do
it yourself, if you want. He can be here to assist, but I’m concerned
that if you don’t know the procedure this is going to get very
complicated and we don’t want that to happen because that can
cause a trial not to be fair.

       “THE DEFENDANT: I believe in God and he will be with
me. I will do it on my own.

       “THE COURT: You’ll do everything on your own? Would
you like [counsel] to stand by and assist you?

       “THE DEFENDANT: No.

       “THE COURT: You don’t want him in the courtroom at
all?

       “THE DEFENDANT: I’m going to do it on my own.

       “THE COURT: And how are you going to pick a jury?

       “THE DEFENDANT: I’ll just pick it up. It doesn’t matter.

       “THE COURT: I will do my best to assist you. I can’t act
as your lawyer, I can’t. You know that wouldn’t be fair, right? And
you don’t want him even in the courtroom in case you have a
question that you can’t resolve?

       “THE DEFENDANT: I have God and he will lead me.

        “THE COURT: The other problem I have is that he stood
up and told this jury that he was your lawyer. Now I have to tell
the jury you don’t want him as your lawyer and that could hurt
your case.

       “THE DEFENDANT: That’s okay.

                               - 10 -
                        “THE COURT: All right. You ready to go?

                        “THE DEFENDANT: (NONVERBAL RESPONSE).

                        “THE COURT: Are you sure?

                        “THE DEFENDANT: (NONVERBAL RESPONSE).

                        “THE COURT: [Counsel]?

                        “[COUNSEL]: Yes, Judge.

                        “THE COURT: I think the defendant does not want you to
                act as her attorney anymore.

                        “[COUNSEL]: That’s her desire, Judge. I mean, I can’t
                change her mind. I’m willing to sit here. If she doesn’t want me
                here, I guess you have to let me go and what I’ll do in the
                meantime while she’s doing the jury is I’ll make copies of
                everything. I don’t know what good that is going do [sic] because
                she doesn’t know how to read. I’ll give copies prior to going back
                today. That’s all I can do, Judge. I wouldn’t mind staying here
                assisting her. If she doesn’t want my assistance, I can’t make her.

                        “THE COURT: Ms. Cruz, before I let [counsel] go, I need
                to be sure you don’t want him here for any reason.

                        “THE DEFENDANT: I don’t, your Honor.”

         After releasing her attorney, defendant continued without representation for the duration

of the trial. After a two-day jury trial in Superior Court, the jury found defendant guilty of both

resisting arrest and disorderly conduct. The defendant was sentenced to five months of probation

for each count, ordered to run concurrently. 4 Subsequently, defendant filed a timely pro se

notice of appeal on July 15, 2013. On appeal, defendant is now represented by counsel.




4
    According to defendant, she successfully completed her probation in November 2013.
                                               - 11 -
                                                 II

                                       Standard of Review

       “With respect to a trial justice’s determination as to whether or not a criminal defendant’s

waiver of his or her Sixth Amendment right to counsel is knowing, voluntary, and intelligent,”

this Court reviews this constitutional inquiry de novo. State v. Sampson, 24 A.3d 1131, 1139

(R.I. 2011); see also State v. Brumfield, 900 A.2d 1151, 1153 (R.I. 2006); State v. Laurence, 848

A.2d 238, 253 (R.I. 2004); State v. Thornton, 800 A.2d 1016, 1026 (R.I. 2002). Nevertheless,

“[e]ven when the de novo standard is applied to issues of constitutional dimension, we still

accord a hearing justice’s findings of historical fact, and inferences drawn from those facts, great

deference in conducting our review.” State v. Eddy, 68 A.3d 1089, 1098 (R.I. 2013) (quoting

Thornton v. State, 948 A.2d 312, 316 (R.I. 2008)).

                                                III

                                            Discussion

       On appeal, defendant argues that her Sixth Amendment right to counsel was violated

because the trial justice permitted her to represent herself without first determining whether she

had made a constitutionally valid, knowing and intelligent waiver of counsel. In particular,

defendant contends that the trial justice failed to determine whether she “understood the dangers

and disadvantages of self-representation * * *.”         The state argues that defendant made a

voluntary waiver of her right to counsel and “that she appreciated the risks in so doing[] * * *.”

Additionally, the state asserts that the colloquies at trial demonstrate that defendant’s waiver of

counsel was constitutionally valid in that it was “knowing and informed.”

       The Sixth Amendment to the United States Constitution and article 1, section 10 of the

Rhode Island Constitution afford an accused the right to the assistance of counsel in all criminal


                                               - 12 -
prosecutions. See Laurence, 848 A.2d at 252.            “Whether defense counsel is retained or

appointed, this right ensures that the trial is fair.” Id. A criminal defendant also has the right to

proceed pro se at trial representing himself or herself, provided that his or her waiver of counsel

is valid. E.g., State v. Spencer, 783 A.2d 413, 416 (R.I. 2001); State v. Chabot, 682 A.2d 1377,

1379-80 (R.I. 1996); see also Faretta v. California, 422 U.S. 806, 819 (1975) (“The Sixth

Amendment does not provide merely that a defense shall be made for the accused; it grants to the

accused personally the right to make his [or her] defense.”). In order for a waiver to be valid, a

defendant must waive his or her right to counsel voluntarily, knowingly, and intelligently. State

v. Bluitt, 850 A.2d 83, 88 (R.I. 2004); see also Iowa v. Tovar, 541 U.S. 77, 88 (2004). When

confronted with a defendant’s purported waiver of counsel, this Court employs a two-prong

analysis to determine the validity of that waiver. Laurence, 848 A.2d at 253. It is well settled

that we must first determine whether the waiver was “voluntary,” and then we must determine

whether the waiver was “knowing and intelligent.” Id. (quoting Thornton, 800 A.2d at 1025); see

also Bluitt, 850 A.2d at 87.

       In conducting this constitutional inquiry, this Court examines the totality of the

circumstances. Chabot, 682 A.2d at 1379-80. A valid waiver is effective only if a “defendant

‘knows what he [or she] is doing and his [or her] choice is made with eyes open.’” Id. at 1380

(emphasis omitted) (quoting Faretta, 422 U.S. at 835). A criminal defendant, therefore, should

be “made aware of the dangers and disadvantages of self-representation.” Id. (quoting Faretta,

422 U.S. at 835). To that end, the presence of a detailed colloquy between a trial justice and a

defendant on the record assists the trial justice in ascertaining the knowing and intelligent nature

of a defendant’s waiver. See Spencer, 783 A.2d at 416. However, this Court has recognized that

“such an inquiry is not constitutionally required.” Id.; see also Thornton, 800 A.2d at 1026.


                                               - 13 -
Instead, “[w]e are persuaded that an examination of the totality of the circumstances, in light of

the particular stage of the proceedings at the time the waiver is proposed, is the better approach

to determine whether a waiver of counsel is knowing, voluntary and intelligent.” Thornton, 800

A.2d at 1027 (quoting Spencer, 783 A.2d at 417). Moreover, a trial justice “need not make any

assessment of the extent of the defendant’s technical legal knowledge in determining the

defendant’s knowing exercise of the right to defend himself.” State v. Briggs, 787 A.2d 479, 485

(R.I. 2001) (quoting State v. Costa, 604 A.2d 329, 330 (R.I. 1992)).

       In Chabot, 682 A.2d at 1380, we elucidated six factors (Chabot factors) to aid trial

justices in assessing the validity of a waiver of counsel when the competence of a defendant is in

question at the time of the ostensible waiver. These factors include:

               “(1) the background, the experience, and the conduct of the
               defendant at the hearing, including his age, his education, and his
               physical and mental health; (2) the extent to which the defendant
               has had prior contact with lawyers before the hearing; (3) the
               defendant’s knowledge of the nature of the proceeding and the
               sentence that may potentially be []imposed; (4) the question of
               whether standby counsel has been appointed and the extent to
               which he or she has aided the defendant before or at the hearing;
               (5) the question of whether the waiver of counsel was the result of
               mistreatment or coercion; and (6) the question of whether the
               defendant is trying to manipulate the events of the hearing.” Id.


This Court has articulated that the application of these factors by a trial justice is mandatory only

when the mental competency5 of a defendant is at issue. Laurence, 848 A.2d at 254. Moreover,




5
  The Supreme Court has recognized that there is no meaningful distinction between the
competency of a defendant to stand trial and the competency of a defendant to waive counsel.
Godinez v. Moran, 509 U.S. 387, 399 (1993). In Godinez, the Supreme Court stated:
                     “Nor do we think that a defendant who waives his [or her]
             right to the assistance of counsel must be more competent than a
             defendant who does not, since there is no reason to believe that the
             decision to waive counsel requires an appreciably higher level of
                                               - 14 -
we recommend, but do not require, the consideration of the Chabot factors under a trial justice’s

analysis of the totality of circumstances even in cases in which a defendant is considered

competent. Laurence, 848 A.2d at 253-54; Briggs, 787 A.2d at 486 (“While not mandatory, the

factors set forth in Chabot may be used as a guide in determining a valid waiver of counsel.”);

see Spencer, 783 A.2d at 417.

       We first consider the voluntariness of defendant’s waiver of counsel.          On appeal,

defendant’s arguments appear to focus on the second prong of our waiver analysis, alleging a

constitutional deficiency in the knowing and intelligent nature of her waiver. Nevertheless, we

briefly examine whether defendant waived her right to counsel voluntarily. On the heels of her

request to release counsel, defendant plainly conveyed to the trial justice, “I will represent

myself.” As this Court has previously recognized, “[i]t is generally acknowledged that absent

any showing of ‘good cause’ for a defendant’s refusal to accept court-appointed counsel, such

refusal is functionally equivalent to a voluntary waiver of the right to counsel.” Laurence, 848

A.2d at 253 (quoting Thornton, 800 A.2d at 1025). Moreover, on the record before us, the



                mental functioning than the decision to waive other constitutional
                rights.” Id.
Nevertheless, the Supreme Court did establish that states may “adopt competency standards that
are more elaborate than the [Dusky v. United States, 362 U.S. 402 (1960),] formulation * * *.”
Godinez, 509 U.S. at 396, 402 (“In [Dusky], we held that the standard for competence to stand
trial is whether the defendant has a ‘sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding’ and has ‘a rational as well as factual understanding
of the proceedings against him.’”). Under this Court’s precedent, “[w]e previously have
determined that a defendant is subjected to a heightened standard of competency when he [or
she] attempts to waive counsel and appear pro se.” State v. Thomas, 794 A.2d 990, 994 (R.I.
2002). This heightened standard requires the application of the Chabot factors when a
defendant’s mental competency is in question at the time of the waiver, in order to determine
whether a defendant is making a voluntary, knowing, and intelligent waiver. State v. Chabot, 682
A.2d 1377, 1380 (R.I. 1996). In the present case, no suggestion was made either at trial or on
appeal that defendant was not competent to stand trial. This opinion is confined to the facts of
this case and the only issue on appeal, which is whether defendant’s waiver of counsel was
constitutionally valid.
                                              - 15 -
lengthy colloquies between the trial justice and defendant establish that defendant’s decision—to

waive counsel and proceed pro se at trial—was a product of her own free will. For these reasons,

we are satisfied that defendant’s waiver of counsel was voluntary.

       Next, we consider whether defendant’s waiver of counsel was knowingly and

intelligently executed. The trial justice engaged in an extended colloquy with defendant, during

which she had the benefit of seeing and hearing defendant firsthand, to augment defendant’s

rationale and responses now on the record before us. The defendant’s conduct throughout that

colloquy demonstrated her dissatisfaction with her counsel and her belief that “[she] could do it

better [her]self.”   Accordingly, the trial justice inquired whether defendant knew how to

represent herself at trial. In response, defendant informed the trial justice that she was unable to

read or write and did not know how to represent herself, but nevertheless she made it clear that it

was her intent to proceed pro se. Over the course of the colloquy, the trial justice endeavored to,

and in our opinion did, make defendant “aware of the dangers and disadvantages of self-

representation.” Chabot, 682 A.2d at 1380 (quoting Faretta, 422 U.S. at 835). In particular, the

trial justice explained the potential difficulties of self-representation given the complex rules of

the courtroom, which the trial justice made clear she would require defendant to follow.

Furthermore, the trial justice expressed her concerns that defendant’s lack of knowledge of law

and trial procedure “c[ould] cause a trial not to be fair.” Despite the trial justice’s repeated

admonitions, defendant remained firm in her choice to represent herself without any assistance of

counsel.

       In exploring defendant’s options moving forward, the trial justice did revisit her offer of a

not-guilty filing provided defendant “keep the peace and be of good behavior.” In response,

defendant again explained the rationale behind her refusal to accept the not-guilty filing, which


                                               - 16 -
demonstrated her reasonable apprehension and concern based on her previous interactions with

police and her neighbors. When she initially rejected the trial justice’s offer of a not-guilty

filing, defendant explained: “I came from the Dominican Republic. I have an organization. I help

a lot of kids to keep them off the street, teach them about their rights, the same way I’m going

through right now and I’m innocent and if I decide to take this, I will not live with myself at all.”

The defendant’s introspection evidences her grasp of the circumstances before her, as well as the

potential perils beyond her control associated with the not-guilty filing. Later in the colloquy,

when defendant did not appear amenable to any option besides proceeding pro se, the trial justice

presented the option of having her attorney serve as standby counsel.

       Although the trial justice engaged in a colloquy with defendant, she did not explicitly

apply the Chabot factors. Nevertheless, even though the factors remain relevant, this Court has

consistently stated that a trial justice is required only to employ the Chabot factors when there

are questions regarding the mental competency of a defendant. See, e.g., Thornton, 800 A.2d at

1027; Briggs, 787 A.2d at 486; Spencer, 783 A.2d at 416-17. Now, on appeal, the argument that

defendant advances suggests that, as the trial progressed, her conduct brought to light questions

concerning her mental competency. She contends that the trial justice erred in not probing more

deeply into her mental health because “red flags were waving for Chabot’s application in this

matter since there were legitimate doubts about most of the Chabot factors.” 6 A self-represented

litigant’s performance at trial, however, does not inform the knowing and intelligent nature of his

or her original waiver of counsel. Rather, the relevant time frame for assessing the validity of a



6
  “In Chabot, this Court held that if a defendant waives his [or her] right to counsel and, in doing
so, creates a legitimate doubt about his [or her] mental condition, then ‘it [is] incumbent upon the
trial justice to conduct a more searching inquiry of [the] defendant’s then existing mental health
and physical condition[.]’” Rose v. State, 994 A.2d 662, 664 (R.I. 2010) (mem.) (quoting
Chabot, 682 A.2d at 1380).
                                               - 17 -
defendant’s waiver of counsel and, similarly, questions regarding her competency to do so, is at

the time of the waiver. See Rose v. State, 994 A.2d 662, 664 (R.I. 2010) (mem.); State v.

Holdsworth, 798 A.2d 917, 923 (R.I. 2002). In this case, the record is devoid of any concern

raised in the colloquy between the trial justice and defendant, or by her former counsel, as to her

mental competency. Thus, considering the facts before the trial justice at the time of defendant’s

waiver, it is unlikely that they gave rise to “legitimate doubts about * * * defendant’s mental

condition.” Chabot, 682 A.2d at 1380.

       Moreover, the trial justice had no circumstances before her to suggest that defendant was

presently affected by or had a history of any psychiatric diagnosis or treatment. See Rose, 994

A.2d at 664-65, 665 n.6 (noting that there was no evidence in the record to alert the hearing

justice to the defendant having any potential mental disability that warranted the application of

the Chabot factors). As such, the facts of this case are distinct from those in Chabot, 682 A.2d at

1380, where the trial justice knew that the defendant had been a patient and had been prescribed

medication in a psychiatric care unit for five months before the probation-revocation hearing. In

that case, we held that the defendant’s waiver of counsel was not valid because a more thorough

inquiry, involving the Chabot factors, was necessary based on those facts. Id. at 1380-81.

Similarly, in Holdsworth, 798 A.2d at 924, the trial justice was aware that the defendant had

previously been a patient at a mental health facility. In light of that fact, this Court determined

that the defendant’s waiver of counsel was not valid because the trial justice had not applied the

Chabot factors. Id. at 924-25.

       At the time of defendant’s waiver of counsel, the record before us, however, does not

present analogous facts. Therefore, although an explicit Chabot discussion would have been

preferable, the absence of such a colloquy does not infect defendant’s waiver of counsel with any


                                              - 18 -
constitutional defect. As our review is confined to the written record, we emphasize the fact that

the trial justice, who had the benefit of seeing and hearing defendant firsthand, made the decision

that application of the Chabot factors was not necessary. 7 Moreover, much of the information

that a Chabot analysis is intended to mine was unearthed during the colloquy between the trial

justice and defendant. It was revealed that defendant was at the time a fifty-two-year-old widow

who owned her own home; her children were teachers and she was involved in the community,

particularly with “kids.” She acknowledged that she could not read or write, but she answered

the trial justice’s questions and at all times was respectful to the court. Not only was defendant

represented by counsel during all preliminary proceedings in Superior Court, she was also

represented by counsel throughout her trial and conviction in the District Court. Further, there is

absolutely no indication that she was trying to manipulate the proceedings or that her waiver was

the result of mistreatment or coercion. On the contrary, defendant resolutely maintained her

desire to waive counsel and proceed on her own behalf before the court.

       Also, defendant repeatedly expressed her unwillingness to accept a one-year not-guilty

filing of the charges, realizing that the charges would not disappear during that year. She

explained that she lived in a predominantly white neighborhood, which she described as “the

wrong neighborhood,” and she expressed a distrust of both her neighbors and the police because

she is “Spanish.” She indicated that this incident was not the first time the police had come into

her house without an invitation. She maintained her innocence and clearly did not want these

charges hanging over her head for another year. Rather, she wanted them resolved by a jury




7
  See Commonwealth v. Simpson, 704 N.E.2d 1131, 1136 (Mass. 1999) (addressing the issue of
the defendant’s competency to stand trial and noting that “[t]he [trial] judge, unlike appellate
judges, had the advantage of seeing and hearing the defendant.”); Commonwealth v. DeMinico,
557 N.E.2d 744, 748 (Mass. 1990) (same).
                                              - 19 -
trial. We cannot conclude that, as defendant argues on appeal, the very fact that she rejected a

not-guilty filing “was not a rational decision.”

       We next turn to address defendant’s appellate argument that chronicles her many

deficiencies in self-representation at trial to bolster her contention that the Chabot factors should

have been applied. The Supreme Court has established that “the competence that is required of a

defendant seeking to waive h[er] right to counsel is the competence to waive the right, not the

competence to represent h[er]self.” Godinez v. Moran, 509 U.S. 387, 399 (1993). “Thus, while

‘[i]t is undeniable that in most criminal prosecutions defendants could better defend with

counsel’s guidance than by their own unskilled efforts,’ * * * a criminal defendant’s ability to

represent h[er]self has no bearing upon h[er] competence to choose self-representation.” Id. at

400 (quoting Faretta, 422 U.S. at 834).

       Further, the Supreme Court, as well as this Court, has made clear that “technical legal

knowledge” is not relevant to whether a defendant made a knowing and intelligent waiver of

counsel. See, e.g., Faretta, 422 U.S. at 836; Sampson, 24 A.3d at 1143; Costa, 604 A.2d at 330.

Consequently, we do not consider defendant’s missteps at trial due—at least in large part—to her

lack of knowledge of law and trial procedure as part of the knowing and intelligent inquiry in our

waiver validity analysis. Moreover, we echo one of the Supreme Court’s fundamental teachings

on the right of self-representation that, “although [defendant] may conduct h[er] own defense

ultimately to h[er] own detriment, h[er] choice must be honored out of ‘that respect for the

individual which is the lifeblood of the law.’” Faretta, 422 U.S. at 834 (quoting Illinois v. Allen,

397 U.S. 337, 350-51 (1970) (Brennan, J., concurring)).

       Although it would have been preferable for the trial justice to specifically address some

of the pertinent Chabot factors, we are not persuaded that such an inquiry would have produced


                                               - 20 -
any evidence to suggest that defendant’s waiver of counsel was not knowing and intelligent. See

Spencer, 783 A.2d at 417-18. Accordingly, in light of the particular stage of the proceedings, the

facts before the trial justice at the time of waiver, and the trial justice having the benefit of seeing

and hearing defendant, we believe that the trial justice engaged in a pragmatic colloquy sufficient

to establish the validity of defendant’s waiver. See id.

       After careful consideration of the totality of the circumstances at the time of the

defendant’s waiver, we conclude that the record establishes the defendant’s voluntary, knowing,

and intelligent waiver of her right to counsel. The defendant made her choice—eyes wide

open—to waive counsel and represent herself at trial.



                                                  IV

                                             Conclusion

       For the reasons stated herein, the judgment of the Superior Court is affirmed. The record

of this case shall be returned to the Superior Court.




                                                 - 21 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        State v. Ana M. Cruz.

CASE NO:              No. 2013-282-C.A.
                      (P3/12-3306A)

COURT:                Supreme Court

DATE OPINION FILED: February 11, 2015

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Chief Justice Paul A. Suttell

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Judith C. Savage

ATTORNEYS ON APPEAL:

                      For State: Aaron L. Weisman
                                 Department of Attorney General

                      For Defendant: Catherine Gibran
                                     Office of the Public Defender
