FILED Serial: 231697 IN THE SUPREME COURT OF MISSISSIPPI MAY 28 2020 OFFICE OF THE CLERK No. 2017-CT-01488-SCT ci~11,'~w~i~s
FRANKIE L. WILLIAMS a/k/a FRANKIE WILLIAMS alkla FRANKIE LEE WILLIAMS
v.
STATE OF MISSISSIPPI
EN BANC ORDER
The instant matter is before the Court on the Petition for Writ of Certiorari filed by
Frankie L. Williams. The petition was granted by order of the Court on November 12, 2019.
Upon further consideration, the Court finds that there is no need for further review and that
the writ of certiorari should be dismissed.
IT IS, THEREFORE, ORDERED that the writ of certiorari is hereby dismissed on the
Court's own,motion.
SO ORDERED, this the JP ~ay of May"""""""~
J IAH DENNIS COLEMAN, JUSTICE FOR THE COURT
TO DISMISS: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.
KING, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY KITCHENS, P.J. IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-CT-01488-SCT
FRANKIE L. WILLIAMS alk/a FRANKIE WILLIAMS a/k/a FRANKIE LEE WILLIAMS
KING, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:
11. Because the Court of Appeals decided this case incorrectly, I object to the order
dismissing the petition for certiorari that this Court previously granted. This Court should
reverse the judgment of the Court of Appeals.
12. Frankie Williams was convicted of murder and possession of a firearm by a convicted
felon. He appealed, arguing that the trial court violated his right to represent himself and that
he received ineffective assistance of counsel. A divided Court of Appeals affirmed, finding
that the record did not indicate that Williams wished to waive counsel, and that even if it did,
he was incompetent to represent himself. The Court of Appeals also dismissed Williams's
ineffective assistance of counsel claim without prejudice to his ability to raise the issue in
post-conviction proceedings. Williams petitioned this Court for certiorari, which we granted
to address the issue of whether the trial court violated his right to represent himself. We now
2 dismiss the petition for certiorari, despite the trial court's error of failing to follow Rule
7 .1 (c) of the Mississippi Rules of Criminal Procedure.
FACTS AND PROCEDURAL HISTORY
,3. Prior to trial, Williams underwent mental evaluations, and the trial court held a
competency hearing in May 2017. The trial court found Williams competent to stand trial.
On October 2, 2017, the first day of trial, defense counsel requested outside of Williams's
presence that Williams be able to speak to the court. The court denied that request, stating
that "I will hear from you [counsel]. I don't need to hear from him." Defense counsel
replied that "Part of it is that I think he wants to fire counsel." The discussion continued,
BY THE COURT: Its [sic] too late for that and he is not qualified to represent himself. So, just tell him that we are going forward with the trial at this stage. I don't need to hear any more from him, I've heard enough from him. He has got two counsels who are able to represent him and we are going forward unless he want[ s] to plea. ,
BY [DEFENSE COUNSEL]: No, he does not want to plea. Is it permissible for either me or him to make a motion before the Court that he be permitted to try himself?
BY THE COURT: I'm telling you that he is not going to do that.
BY [DEFENSE COUNSEL]: I just want to make a record.
BY THE COURT: I've seen enough [ofh]is antics over the last four years to say that he is not qualified to serve as his own counsel . . . .
BY [DEFENSE COUNSEL]: All I want to know is that in going forward I want to make sure that the record is clear that we have voiced what he wants.
3 BY [DEFENSE COUNSEL]: There is one other point that he insists on making sure that I understand and that is he is going to file complaints against all of us and I told him that was his right. And I just want it to be on the record.
BY THE COURT: I'm sure that I got some judicial complaints out there somewhere. But again, ... and I understand and I think you have put your concerns on the record or his concerns on the record.
But I am again making the ruling that he can not [sic] represent himself.
BY [DEFENSE COUNSEL]: I just needed to put that on the record.
In making the ruling that Williams could not represent himself, the trial court detailed some
of the difficulties Williams had caused with prose filings and other "antics."
14. Later that day, Williams and the trial court had the following exchange:
BY MR. WILLIAMS: Yes, sir and also pertaining to the case that me and [defense counsel], he said, for the record, that I had asked them to be excused but he said for some reason that -
BY T~ COURT: Well, Mr. Williams let me tell you what I told him. I am not- he has been appointed to represent you .... Personally, we have had conversations back and forth and the Court is ruling that they are your attorneys ....
BY MR. WILLIAMS: For the record, I don't feel satisfied with his judgement[ sic].
BY THE COURT: Yes, sir.
BY MR. WILLIAMS: [O]fficially, [defense counsel], acting by counsel, rules himself what he wants to (inaudible).
4 BY THE COURT: You can take him back to lunch because we are going to lunch.
BY [DEFENSE COUNSEL]: He asked me to remove myself.
BY THE COURT: The Court has ordered you to stay on this case, [defense counsel], to try this case. Now, that is the order of the Court to try this case to the best of your ability which I know that you will do and that is all that the Court can ask you to do ....
The trial proceeded with Williams represented by defense counsel.
,5. The Court of Appeals determined that "Williams did not waive counsel and invoke
his right of self-representation." Williams v. State, No. 2017-KA-01488-COA, 2019 WL
1915376, at *6 (Miss. Ct. App. Apr. 30, 2019). The Court of Appeals then found that even
if Williams did invoke his right of self-representation, the trial court did not err by denying
Williams that right because Williams met an exception to the right of self-representation. Id.
at *7. The Court of Appeals analyzed the facts itself and found that Williams was '" so ...
mentally incompetent to speak to the jury that his right to a fair trial [would have been]
endangered' had he represented himself." Id. (quotingArmsteadv. State, 716 So. 2d 576,
580 (Miss. 1998)). The separate opinion found that Williams did indicate that he wanted to
represent himself, thus triggering the mandatory procedure found in Rule 7 .1 of the
Mississippi Rules of Criminal Procedure. Williams, 2019 WL 1915376 (Westbrooks, J.,
concurring in part and dissenting in part).
ANALYSIS
5 ,6. A criminal defendant has a constitutional right to self-representation. That right is
found explicitly in the Mississippi Constitution of 1890, which provides that "[i]n all
criminal prosecutions, the accused shall have the right to be heard by himself or counsel, or
both[.]" Miss. Const. art. 3, § 26. The right is also found implicitly in the Sixth Amendment
to the United States Constitution. U.S. Const. amend. VI; Faretta v. California, 422 U.S.
806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). "[T]his Court reviews constitutional issues de
novo." Grim v. State,
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FILED Serial: 231697 IN THE SUPREME COURT OF MISSISSIPPI MAY 28 2020 OFFICE OF THE CLERK No. 2017-CT-01488-SCT ci~11,'~w~i~s
FRANKIE L. WILLIAMS a/k/a FRANKIE WILLIAMS alkla FRANKIE LEE WILLIAMS
v.
STATE OF MISSISSIPPI
EN BANC ORDER
The instant matter is before the Court on the Petition for Writ of Certiorari filed by
Frankie L. Williams. The petition was granted by order of the Court on November 12, 2019.
Upon further consideration, the Court finds that there is no need for further review and that
the writ of certiorari should be dismissed.
IT IS, THEREFORE, ORDERED that the writ of certiorari is hereby dismissed on the
Court's own,motion.
SO ORDERED, this the JP ~ay of May"""""""~
J IAH DENNIS COLEMAN, JUSTICE FOR THE COURT
TO DISMISS: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.
KING, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY KITCHENS, P.J. IN THE SUPREME COURT OF MISSISSIPPI
NO. 2017-CT-01488-SCT
FRANKIE L. WILLIAMS alk/a FRANKIE WILLIAMS a/k/a FRANKIE LEE WILLIAMS
KING, PRESIDING JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:
11. Because the Court of Appeals decided this case incorrectly, I object to the order
dismissing the petition for certiorari that this Court previously granted. This Court should
reverse the judgment of the Court of Appeals.
12. Frankie Williams was convicted of murder and possession of a firearm by a convicted
felon. He appealed, arguing that the trial court violated his right to represent himself and that
he received ineffective assistance of counsel. A divided Court of Appeals affirmed, finding
that the record did not indicate that Williams wished to waive counsel, and that even if it did,
he was incompetent to represent himself. The Court of Appeals also dismissed Williams's
ineffective assistance of counsel claim without prejudice to his ability to raise the issue in
post-conviction proceedings. Williams petitioned this Court for certiorari, which we granted
to address the issue of whether the trial court violated his right to represent himself. We now
2 dismiss the petition for certiorari, despite the trial court's error of failing to follow Rule
7 .1 (c) of the Mississippi Rules of Criminal Procedure.
FACTS AND PROCEDURAL HISTORY
,3. Prior to trial, Williams underwent mental evaluations, and the trial court held a
competency hearing in May 2017. The trial court found Williams competent to stand trial.
On October 2, 2017, the first day of trial, defense counsel requested outside of Williams's
presence that Williams be able to speak to the court. The court denied that request, stating
that "I will hear from you [counsel]. I don't need to hear from him." Defense counsel
replied that "Part of it is that I think he wants to fire counsel." The discussion continued,
BY THE COURT: Its [sic] too late for that and he is not qualified to represent himself. So, just tell him that we are going forward with the trial at this stage. I don't need to hear any more from him, I've heard enough from him. He has got two counsels who are able to represent him and we are going forward unless he want[ s] to plea. ,
BY [DEFENSE COUNSEL]: No, he does not want to plea. Is it permissible for either me or him to make a motion before the Court that he be permitted to try himself?
BY THE COURT: I'm telling you that he is not going to do that.
BY [DEFENSE COUNSEL]: I just want to make a record.
BY THE COURT: I've seen enough [ofh]is antics over the last four years to say that he is not qualified to serve as his own counsel . . . .
BY [DEFENSE COUNSEL]: All I want to know is that in going forward I want to make sure that the record is clear that we have voiced what he wants.
3 BY [DEFENSE COUNSEL]: There is one other point that he insists on making sure that I understand and that is he is going to file complaints against all of us and I told him that was his right. And I just want it to be on the record.
BY THE COURT: I'm sure that I got some judicial complaints out there somewhere. But again, ... and I understand and I think you have put your concerns on the record or his concerns on the record.
But I am again making the ruling that he can not [sic] represent himself.
BY [DEFENSE COUNSEL]: I just needed to put that on the record.
In making the ruling that Williams could not represent himself, the trial court detailed some
of the difficulties Williams had caused with prose filings and other "antics."
14. Later that day, Williams and the trial court had the following exchange:
BY MR. WILLIAMS: Yes, sir and also pertaining to the case that me and [defense counsel], he said, for the record, that I had asked them to be excused but he said for some reason that -
BY T~ COURT: Well, Mr. Williams let me tell you what I told him. I am not- he has been appointed to represent you .... Personally, we have had conversations back and forth and the Court is ruling that they are your attorneys ....
BY MR. WILLIAMS: For the record, I don't feel satisfied with his judgement[ sic].
BY THE COURT: Yes, sir.
BY MR. WILLIAMS: [O]fficially, [defense counsel], acting by counsel, rules himself what he wants to (inaudible).
4 BY THE COURT: You can take him back to lunch because we are going to lunch.
BY [DEFENSE COUNSEL]: He asked me to remove myself.
BY THE COURT: The Court has ordered you to stay on this case, [defense counsel], to try this case. Now, that is the order of the Court to try this case to the best of your ability which I know that you will do and that is all that the Court can ask you to do ....
The trial proceeded with Williams represented by defense counsel.
,5. The Court of Appeals determined that "Williams did not waive counsel and invoke
his right of self-representation." Williams v. State, No. 2017-KA-01488-COA, 2019 WL
1915376, at *6 (Miss. Ct. App. Apr. 30, 2019). The Court of Appeals then found that even
if Williams did invoke his right of self-representation, the trial court did not err by denying
Williams that right because Williams met an exception to the right of self-representation. Id.
at *7. The Court of Appeals analyzed the facts itself and found that Williams was '" so ...
mentally incompetent to speak to the jury that his right to a fair trial [would have been]
endangered' had he represented himself." Id. (quotingArmsteadv. State, 716 So. 2d 576,
580 (Miss. 1998)). The separate opinion found that Williams did indicate that he wanted to
represent himself, thus triggering the mandatory procedure found in Rule 7 .1 of the
Mississippi Rules of Criminal Procedure. Williams, 2019 WL 1915376 (Westbrooks, J.,
concurring in part and dissenting in part).
ANALYSIS
5 ,6. A criminal defendant has a constitutional right to self-representation. That right is
found explicitly in the Mississippi Constitution of 1890, which provides that "[i]n all
criminal prosecutions, the accused shall have the right to be heard by himself or counsel, or
both[.]" Miss. Const. art. 3, § 26. The right is also found implicitly in the Sixth Amendment
to the United States Constitution. U.S. Const. amend. VI; Faretta v. California, 422 U.S.
806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). "[T]his Court reviews constitutional issues de
novo." Grim v. State, 102 So. 3d 1073, 1078 (Miss. 2012).
,1. The right to self-representation is deeply entrenched in both the state and federal
constitutions. "[F]orcing a lawyer upon an unwilling defendant is contrary to his basic right
to defend himself if he truly wants to do so." F aretta, 422 U.S. at 81 7 (also examining the
lengthy history of self-representation). A refusal to allow a defendant to argue his own case
"is in direct violation of [Mississippi Constitution article 3, section 26] and requires
reversal." Gray v. State, 351 So. 2d 1342, 1345 (Miss. 1977). To protect a defendant's
rights in waiving counsel, Rule 7 .1 (c) ofthe Mississippi Rules of Criminal Procedure "adopts
the constitutional standard" for waiver of the right to counsel. MRCrP 7 .1 (c) cmt.; see
Faretta, 422 U.S. at 835; Patton v. State, 34 So. 3d 563, 565-69 (Miss. 2010). Rule 7.l(c)
provides that"[w]hen the court learns that a defendant desires to act as his/her own attorney,
the court shall conduct an on-the-record examination of the defendant to determine if the
defendant knowingly and voluntarily desires to act as his/her own attorney." MRCrP 7 .1 (c)
(emphases added). When defense counsel asked that Williams be allowed to speak to the
6 trial court, the trial court refused the request. The trial court then detailed why it would not
let Williams represent himself. When defense counsel requested that he or Williams be
allowed to make a motion that Williams represent himself, the trial court declined the
request. It then detailed several more times why it would not allow Williams to represent
himself. Clearly, the trial court "learned" that Williams desired to represent himself,
triggering Rule 7.l(c). Had the trial court not "learned" of this, its repeated statements that
it would not allow Williams to represent himself would amount to nonsense. 1 Rule 7.1 (c)
provides that once the trial court "learns" of the defendant's "desire" to self-represent, it
"shall" conduct the procedure provided in Rule 7.l(c). "Shall" is mandatory. Moore v.
State, 287 So. 3d 905, 918 (Miss. 2019); Newberry v. State, 145 So. 3d 652, 656 (Miss.
2014). The Court of Appeals' determination that Williams did not "waive" counsel or
"invoke" the right to self-representation ignores the plain language of Rule 7.l(c), and
appears to require Williams to use "magic words" to invoke his rights. Williams was not
required to waive counsel to invoke Rule 7.l(c); indeed, the procedures in Rule 7.l(c) are
how a trial court determines whether a defendant waives counsel, and those procedures were
not followed in this case. A trial court need only "learn" of the "desire" to self-represent to
trigger the mandatory procedures found in Rule 7 .1 (c), and that clearly occurred in this case.
1Furthermore, the fault for any alleged lack of clarity regardi1_1g whether Williams desired to represent himself lies squarely with the trial court, as it refused to allow Williams to move to represent himself. The trial court's refusals to allow him to make a formal request should not be held against Williams.
7 Absent narrow exceptions, a defendant has an absolute right to self-representation, and the
State may not force counsel onto a defendant. Faretta, 422 U.S. 806. The trial court failed
to make the appropriate determination regarding whether Williams knowingly and voluntarily
waived counsel, and, if so, whether he met one of the narrow exceptions that may deprive a
defendant of the right to self-representation.
,s. Further, the Court of Appeals' determination that Williams met one of the exceptions
to the right to self-representation was inappropriate. The trial court did not make any such
determination. As an appellate court, the Court of Appeals should not generally determine
an issue not determined by the trial court, nor should it engage in fact-finding. See Miss.
Const. art. 6, § 146.
,9. As the separate opinion noted, self-representation is usually unwise, and it is not
"unreasonable to conclude that Williams's interest in self-representation was primarily a
means to prolong his trial." Williams, 2019 WL 1915376 at *9 (Westbrooks, J., concurring
in part and dissenting in part). But such notions do not relieve the trial court of its duties to
follow the procedures in Rule 7 .1 (c), to determine whether a proper waiver of the right to
counsel has occurred, or to determine whether an exception to the right to self-representation
is met, if applicable.
,10. Because the trial court erred by failing to make an on-the-record determination under
Rule 7 .1 (c) regarding whether Williams waived the right to counsel, and because the right
to self-representation is firmly entrenched in both our state and federal constitutions, I would
8 grant Williams' s petition for certiorari, reverse Williams' s conviction, vacate the portion of
the Court of Appeals opinion that affirms Williams' s conviction, and remand the case to the
trial court for a new trial.
KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.