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State v. Roberts

Supreme Court of South Carolina

June 3, 2005

The State, Respondent,
v.
Tyree Alphonso Roberts, a/k/a Abdiyyah Ben Alkebulanyahh, Appellant.

          ORDER

          JEAN H. TOAL, C.J.

         Appellant was sentenced to death on October 22, 2003. The case is now before this Court on direct appeal. Joseph Savitz and Robert M. Dudek, of the Office of Appellate Defense, serve as counsel for appellant. They served and filed the initial brief on February 22, 2005.

         Appellant now moves to proceed pro se, arguing the warden and appellate counsel are acting to deny him access to the courts. He maintains he does not want the assistance of attorneys from the Office of Appellate Defense and that he "rejected" them prior to their filing the initial brief and continues to reject them and any action they take on appellant's behalf. In support of his request to proceed pro se, appellant contends S.C. Code Ann. § 16-3-25(D) states that, "Both the defendant and the State shall have the right to submit briefs within the time provided by the court and to present oral arguments to the court."

         By way of return, appellate counsel take the position that the Court should not allow self-representation on direct appeal. They assert that while a pro se defendant who mishandles a trial harms only himself, a pro se defendant who mishandles a direct appeal damages the criminal justice system as a whole. Finally, appellate counsel argue that even if the Court allows self-representation on appeal from a criminal conviction, it should require the appellant to exercise that option before appellate counsel files the initial brief and designation of matter.

         The State has filed a return in which it argues there is no federal constitutional right to self-representation on direct appeal and this State has not recognized such a right under its own constitution, see Martinez v. Court of Appeal of California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000), although it acknowledges that the Court has noted it is questionable whether Art. I, § 14 of the South Carolina Constitution applies to appellate matters.[1] Foster v. State, 298 S.C. 306, 379 S.E.2d 907 (1989). The State argues that constitutional provision applies only to trials and not appellate proceedings.

         The State argues further that appellant has the assistance of two very experienced capital appeals litigators and they have already filed a brief in this matter. The State contends it is simply too late to stop the process, go back to the beginning and allow submission of new substantive arguments simply because appellant is not satisfied with the issues raised by appellate counsel. The State maintains appellate counsel are entitled to make a reasonable choice not to raise every non-frivolous issue requested by appellant, see Jones v. Barnes, 436 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), and any mistake they make in determining viable issues for briefing can be resolved on post-conviction relief instead of by way of a pro se brief on direct appeal.

         By way of reply, appellant maintains Mr. Savitz is incompetent and ineffective. He points to Mr. Savitz's failure to raise any guilt phase errors or constitutional errors in the initial brief. Appellant contends the record clearly reflects that during the pre-trial and guilt phase, appellant sought "instant relief or release" based on Fourth Amendment violations and a lack of evidence. He claims these two issues are the most significant and meritorious and should have been raised in the initial brief. Appellant maintains he cannot raise the insufficiency of the evidence on post-conviction relief.

         This Court has repeatedly held, pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), that a criminal defendant may waive the right to counsel and proceed pro se at trial. State v. Fuller, 337 S.C. 236, 523 S.E.2d 168 (1999); State v. Stuckey, 333 S.C. 56, 508 S.E.2d 564 (1998); State v. Reed, 332 S.C. 35, 503 S.E.2d 747 (1998); State v. Brewer, 328 S.C. 117, 492 S.E.2d 97 (1997); State v. Sims, 304 S.C. 409, 405 S.E.2d 377 (1991); State v. Dixon, 269 S.C. 107, 236 S.E.2d 419 (1977). However, we have never addressed whether a criminal defendant has the same right on appeal.

         In Martinez, supra, the United States Supreme Court held that the rationale underlying the Faretta decision, including reliance on the Sixth Amendment, did not apply to appellate proceedings. The Court also found no right of self-representation under the Due Process Clause. Accordingly, a right of self-representation on appeal must be grounded in the state constitution, if at all. The majority of the states that have addressed this issue following Martinez have found there is no state constitutional right to self-representation on appeal.

         Article I, § 16 of the Florida Constitution states the following:

In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed.

         The Florida Supreme Court found, despite this language, which is very similar to Art. I, § 14 of the South Carolina Constitution, that in Florida there is no state constitutional right to proceed pro se on direct appeal, although the appellate court may, in its discretion, allow an appellant to proceed pro se. Davis v. State, 789 So.2d 978 (Fla. 2001). The New Hampshire Supreme Court has also determined its state constitution provides no due process right to a defendant to proceed pro se on appeal.[2] State v. Thomas, 840 A.2d 803 (N.H. 2003). Appellate courts in Arkansas, Texas and Washington have also held, in reliance upon Martinez, that an appellant in a criminal case does not have the right to proceed pro se on direct appeal in those states. Fudge v. State, 19 S.W.3d 22 (Ark. 2000); Cormier v. State, 85 S.W.3d 496 (Tex. App. 2002); State v. Watson, 2000 WL 339179 (Wash. App. 2000).

         The Alabama Supreme Court held that while the Alabama Constitution does not provide any basis for recognizing a right to self-representation on appeal, [3] certain statutes, when read together, give an appellant in a criminal case a statutory right to do so.[4] Ex parte Scudder, 789 So.2d 837 (Ala. 2001).

         Other states had determined prior to the decision in Martinez that there is no constitutional right to self-representation on appeal from a criminal conviction. In Blandino v. State, 914 P.2d 624 (Nev. 1996), the Supreme Court of Nevada held that the Sixth Amendment only applies to trials and does not support the existence of a right to self-representation on ...


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