State v. Moore

687 So. 2d 647, 1997 WL 21039
CourtLouisiana Court of Appeal
DecidedJanuary 22, 1997
Docket29212-KA
StatusPublished
Cited by11 cases

This text of 687 So. 2d 647 (State v. Moore) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Moore, 687 So. 2d 647, 1997 WL 21039 (La. Ct. App. 1997).

Opinion

687 So.2d 647 (1997)

STATE of Louisiana, Appellee,
v.
Ted Wayne MOORE, Appellant.

No. 29212-KA.

Court of Appeal of Louisiana, Second Circuit.

January 22, 1997.

Michael Courteau, Monroe, for Appellant.

Richard Ieyoub, Attorney General, Jerry L. Jones, District Attorney, Robert S. Tew, Assistant District Attorney, for Appellee.

*648 Before MARVIN, GASKINS and PEATROSS, JJ.

GASKINS, Judge.

The defendant, Ted Wayne Moore, appeals his conviction for distribution of cocaine. For the following reasons, we affirm.

FACTS

On May 20, 1994, Monroe police officers conducted a "buy-bust" operation wherein an officer and a confidential informant (CI) made cocaine purchases from "street dealers" with marked "buy money" and thereafter directed other officers to arrest the seller. At about 11:00 p.m., Officer Edmiston and the CI drove up to a street corner where the defendant approached their vehicle. They inquired about buying drugs and the defendant instructed them to drive around the block. The CI was wired with a radio transmitter. Officer Edmiston used this device to describe the defendant's dress and appearance to other officers who would later apprehend the defendant. After driving around the block, Officer Edmiston and the CI returned to the corner and purchased one rock of crack cocaine from the defendant for $20 in marked money. Officer Edmiston again described the defendant's dress and appearance to officers on the apprehension team who closed in and arrested the defendant approximately one minute after the transaction. Officer Edmiston returned to the scene within four minutes and positively identified the defendant as the individual who sold him cocaine. Neither the marked "buy money" nor any other contraband was found.

The defendant was arrested and charged with one count of distribution of cocaine. An attorney was appointed to represent the defendant at trial. Before the defendant's trial began, he informed the court that the he wished to represent himself, stating that his lawyer had done nothing to help his case and that he knew the facts of the case better than his attorney. The court conducted an exhaustive discussion with the defendant concerning his understanding of the potential consequences of this decision. The defendant persisted in his request and ultimately the court allowed the defendant to represent himself.

Following a trial by jury, the defendant was convicted as charged. The trial judge subsequently sentenced the defendant to ten years at hard labor, noting that this was his third felony conviction. The defendant, now represented by the same attorney he dismissed at trial, appeals his conviction, arguing that the trial court erred in allowing him to represent himself and arguing that the evidence was insufficient upon which to base his conviction.

SELF REPRESENTATION

The defendant argues that the trial court erred in allowing him to represent himself at trial. He asserts, "it is quite obvious by the record that the defendant was not prepared for trial nor could he have had the necessary intellectual capacity to waive his right to counsel `with eyes open' and aware of the danger of self-representation." This argument is without merit.

U.S. Const. amend. VI, as well as La. Const. art. I, § 13, guarantees the accused in a criminal proceeding the right to assistance of counsel for his defense. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); State v. Carpenter, 390 So.2d 1296 (La.1980); State v. White, 325 So.2d 584 (La.1976). The right to counsel may be waived, but the accused must know of the right and intentionally relinquish the right. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Waiver of the right to counsel, in order to be valid, must be made knowingly, understandingly and intelligently. Faretta, supra; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); State v. Strain, 585 So.2d 540 (La.1991). A defendant may waive his right to counsel "if he knows what he is doing and his choice is made with eyes open" and the record reflects his awareness of the dangers and disadvantages of self-representation. Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942); State v. Harper, 381 So.2d *649 468 (La.1980). Although a defendant should be made aware of the dangers and disadvantages of self-representation, there is no particular formula which must be followed by the trial court in determining whether the defendant has waived his right to counsel. State v. Carpenter, supra; State v. Harper, supra. The determination of whether defendant knowingly and voluntarily waived his right to counsel depends on the facts and circumstances surrounding the case, including the background, experience, and conduct of the accused. Johnson v. Zerbst, supra; State v. Kennon, 588 So.2d 1348 (La.App. 2d Cir.1991), writ denied, 600 So.2d 634 (La. 1992).

The adequacy of a defendant's self-representation and legal competence are not determinative of a valid waiver of counsel. State v. Kennon, supra. The propriety of allowing a defendant to make this election shall not be judged by what happens in the subsequent course of that representation. Rather, it is the record made in recognizing the waiver that controls. State v. DeGrate, 25,732 (La.App. 2d Cir. 3/30/94), 634 So.2d 965, 968, writ denied, 94-1362 (La.10/07/94), 644 So.2d 630.

In State v. Strain, supra, the Louisiana Supreme Court stated:

The judge, in accepting a waiver of counsel at trial, should advise the accused of the nature of the charges and the penalty range, should inquire into the accused's age, education and mental condition, and should determine according to the totality of the circumstances whether the accused understands the significance of the waiver. See Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948). While the judge need not inquire into each and every factor stated in the Von Moltke plurality opinion in order to establish a valid waiver of the right to counsel at trial, there must be a sufficient inquiry (preferably by an interchange with the accused that elicits more than "yes" and "no" responses) to establish on the record a knowing and intelligent waiver under the overall circumstances. 2 W. LaFave & J. Israel, [Criminal Procedure, Sec. 11.3 (1984)]; 3 D. Rudstein, C. Erlinder & D. Thomas, Criminal Constitutional Law p 13.04[2][a] (1990). Whether an accused has knowingly and intelligently waived his right to counsel is a question which depends on the facts and circumstances of each case. Johnson v. Zerbst,

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Bluebook (online)
687 So. 2d 647, 1997 WL 21039, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moore-lactapp-1997.