Smith v. State

757 S.W.2d 14, 1988 Tenn. Crim. App. LEXIS 333
CourtCourt of Criminal Appeals of Tennessee
DecidedMay 5, 1988
StatusPublished
Cited by19 cases

This text of 757 S.W.2d 14 (Smith v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. State, 757 S.W.2d 14, 1988 Tenn. Crim. App. LEXIS 333 (Tenn. Ct. App. 1988).

Opinion

OPINION

DAUGHTREY, Judge.

The petitioner, Robert L. Smith, appeals the denial of his petition for post-conviction relief. He was convicted of aggravated kidnapping, aggravated rape, armed robbery, and assault with intent to commit murder in the first degree, and his punishment was fixed at four consecutive life sentences. This court affirmed his convictions in State of Tennessee v. Robert L. Smith, filed at Nashville, February 8, 1984. The Supreme Court denied permission to appeal on May 29, 1984.

Petitioner Smith contends (1) that he was improperly denied the right to represent himself with the “elbow assistance of counsel”; (2) that he received ineffective assistance of counsel; and (3) that he was denied due process because of alleged misconduct by the trial judge and prosecuting attorneys. After a full evidentiary hearing, the trial judge denied Smith’s petition. We find no reversible error and affirm.

I.

The petitioner alleges that the trial court violated his right both to represent himself at trial and at the same time be represented by counsel, a right which he claims is guaranteed by the state and federal constitutions. The state asserts in response that there is no such constitutional guarantee.

The record reveals that Smith asked to represent himself on two occasions before trial. In response to the trial judge’s questioning, Smith alleged that his attorneys had been negligent in investigating the case, that certain witnesses had perjured themselves, and that he wanted the court’s permission to question certain witnesses, while his attorneys handled the remainder of his defense. The trial judge informed Smith that he could represent himself and confer with counsel after every question asked of each witness, but that he could not act as co-counsel intermittently [16]*16throughout the trial. In effect, the trial judge gave Smith the option of representing himself or accepting the representation of two “very competent attorneys.” Although not pleased with the choices, Smith chose to be represented by counsel.

Smith contends that State v. Burkhart, 541 S.W.2d 365 (Tenn. 1976), recognized the right of a defendant to represent himself with the “elbow assistance of counsel.” He argues that the “elbow assistance” option mentioned in Burkhart is actually a fourth method of representation recognized in Tennessee, the other three being self-representation, representation by counsel, and “hybrid representation.” According to Smith’s argument on appeal, “elbow assistance” involves the defendant conducting his own defense with counsel present merely to provide technical legal advice, on such things as proper objections and courtroom decorum. “Hybrid counsel,” he contends, involves both the defendant and counsel jointly planning strategy, making decisions, and conducting the defense at trial. He concedes that hybrid representation is a matter of discretion with the trial judge, but argues that elbow-assisted self-representation is separate from hybrid representation and is guaranteed by the Tennessee Constitution.

In support of his argument, petitioner Smith cites the following portion of the Burkhart opinion:

He [the defendant] does not have a constitutional right under the State or Federal Constitution to participate in pro-pria persona in his own defense and simultaneously to be represented by participating counsel.
He may conduct his own defense without benefit of counsel or with an attorney present in the capacity of ‘elbow counsel.’
The choice is his; he represents himself or he is represented — one or the other, but not both.

541 S.W.2d at 371.

We reject as totally unfounded the defendant’s argument that the reference to “elbow counsel” in Burkhart creates a constitutional right to an additional method of self-representation. By its own terms, Burkhart precludes such a possibility, as our Supreme Court recognized in a later case:

The right of a defendant to participate in his own defense is an alternative one. That is, one has a right either to be represented by counsel or to represent himself, to conduct his own defense. Burkhart, supra, and cases cited therein. It is entirely a matter of grace for a defendant to represent himself and have counsel, and such privilege should be granted by the trial court only in exceptional circumstances.

State v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982), cert. denied 459 U.S. 1137, 103 S.Ct. 770, 74 L.Ed.2d 983 (1983).

We conclude that the reference to “elbow counsel” in Burkhart is merely a shorthand form of saying that a criminal defendant has the right to conduct his own defense and in the process can confer with what has also been referred to as “standby counsel.” See e.g., Faretta v. California, 422 U.S. 806, 834, n. 46, 95 S.Ct. 2525, 2541, n. 46, 45 L.Ed.2d 562 (1975). This option is entirely different from the dual (or “hybrid”) representation sought by the defendant in this case.

The law is well-settled that a defendant has no constitutional right to act as co-counsel when he is represented by counsel. State v. Burkhart, 541 S.W.2d at 370-371 (Tenn. 1976); State v. Franklin, 714 S.W.2d 252 (Tenn. 1986); State v. Melson, 638 S.W.2d at 359. Both the state and federal constitutions provide for a right of self-representation or representation by counsel, but the ability of a defendant to act as co-counsel is a privilege conferred upon the defendant at the discretion of the trial judge. Burkhart, 541 S.W.2d at 371.

The Burkhart court warned that the privilege of dual representation should be granted only in exceptional cases when the interests of justice require. Id. Before the trial court may allow a defendant to participate in the defense, the court must determine “that the defendant (1) is not seeking to disrupt orderly trial procedure and (2) that the defendant has the intelli[17]*17gence, ability and general competence to participate in his own defense.” Id. Even when the trial judge determines that both factors are satisfied, the judge may nevertheless decline to permit hybrid representation. State v. Franklin, 714 S.W.2d at 261.

Petitioner Smith’s reasons for wanting to act as co-counsel are inadequate to convince us that the trial judge abused his discretion in refusing Smith’s request. The only concrete reason given by Smith for wanting to act as co-counsel was his conclusion that “[tjhere has been statements and people telling the alleged victim what to say” and that they turn around and perjure themselves on the stand, under oath, saying that this never occurred when they know, in fact, that it did and it is on tape.” As the trial judge correctly pointed out, perjury may be exposed through cross-examination, and there is nothing in the record to suggest that the defendant was the only person capable of exposing the alleged perjury. Additionally, the judge’s offer to allow Smith to consult with counsel continuously throughout trial further negates any reason for allowing Smith to act as co-counsel.

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Bluebook (online)
757 S.W.2d 14, 1988 Tenn. Crim. App. LEXIS 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-tenncrimapp-1988.