DIVISION II

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

CACR00-883

October 10, 2001

SAMUEL J. WATSON AN APPEAL FROM SEBASTIAN

APPELLANT COUNTY CIRCUIT COURT

FORT SMITH DISTRICT [CR99-583]

V. HON. J. MICHAEL FITZHUGH, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Samuel Watson appeals from his convictions for first-degree domestic battery and residential burglary. He argues that he was denied the effective assistance of counsel and that the trial court erred in denying his motion for a continuance. We hold that the trial court's decision that appellant was not denied effective assistance of counsel is not clearly erroneous. We also hold that the decision denying appellant's motion for continuance was not an abuse of discretion. Thus, we affirm his convictions.

Appellant was convicted of first-degree domestic battery and residential burglary based on an incident in which he allegedly broke into his estranged wife's apartment and poured hot grease on her. A public defender, Paul Hughes, was appointed to defend appellant.

Prior to trial, Hughes filed several motions on appellant's behalf, including a motion to sever the charges, a motion in limine to exclude testimony regarding prior incidents of domestic battery against the victim, and a motion for discovery. Appellant's trial was scheduled for April 12, 2000. The trial court conducted pre-trial hearings on April 7 and April 10, 2000, on appellant's motion in limine. During the April 10 hearing, appellant demanded that he be allowed to address the court. He insisted repeatedly that he did not want to take the case to trial, in an apparent effort to obtain a plea bargain. However, the State did not offer a plea bargain in this case.

Appellant also expressed concern and dissatisfaction with Hughes's representation. He attempted to fire Hughes, alleging that he had a conflict of interest with him because Hughes had not visited with him regarding his case. He further alleged that he had no confidence in Hughes because he was not satisfied with the manner that Hughes handled his representation during his revocation of probation hearing. However, another public defender, John Joplin, represented appellant in that matter. Appellant also expressed concern that Hughes was not prepared for trial because Hughes had been unaware of appellant's potential witnesses until the day before and because he was still in the process of obtaining evidence from the State only two days prior to trial.

The trial judge questioned appellant regarding his desire to represent himself and attempted to discourage appellant from doing so by issuing several warnings regarding the dangers of self representation. Appellant stated more than once that he was not qualified to represent himself, but that he did not want Hughes to represent him. The trial judgeindicated that, "I am not going to allow somebody to wait until the eleventh hour to have an attorney and then fire them and the case not go ahead and proceed." He appointed Hughes as standby counsel, and John Joplin as second chair.

Appellant requested a continuance "for the purposes of an attorney" on the ground that "that attorney should have ample time to familiarize himself with the case." The trial court denied the motion, noting that the original information was filed on July 19, 1999, and the amended complaint was filed April 7, 2000. The parties agreed that discovery information would be turned over to appellant that afternoon and the court agreed that it would allow appellant time to speak with his witnesses.

The case proceeded to trial on April 12 and 13. Before trial began, the court again warned appellant of the danger of representing himself and specifically noted that the rules of evidence and procedure would apply to him. The court also questioned appellant regarding his education. Appellant informed the court that he had received one year of paralegal training. The court then instructed appellant regarding the rules concerning objections, conducting voir dire, and making an opening statement. Appellant again objected to representing himself. He stated: " I don't feel that I am qualified to represent myself. I am mentally, but not legally."

Hughes conducted voir dire of the jurors; appellant also questioned the jurors. Hughes informed the court that "although Mr. Watson is acting as his own counsel, he has asked me to handle the more technical aspects of this case." During the course of the trial, appellant largely conducted his own examination of the witnesses in both the guilt andsentencing phases of the trial. However, Hughes took an active role during the trial; Joplin also participated minimally. The jury found appellant guilty of first-degree domestic battery and residential burglary. He was sentenced to serve a total of forty-five years in the Arkansas Department of Correction.

I. Conflict of Interest

Because appellant alleged that he had a conflict of interest with Hughes, we first address whether the trial court erred by failing to appoint new counsel or to properly ascertain whether the risk of an actual conflict of interest was too remote to warrant the appointment of separate counsel. See Holloway v. Arkansas, 435 U.S. 475 (1978). Appellant asserted a conflict of interest during the motion in limine in the following manner:

Appellant: Your Honor, I am not qualified to represent myself, I just don't want him to represent me.

Court: That doesn't happen. Once you get appointed, when you can't hire your own - when you can hire your own attorney you get to pick who that individual is. When you can't hire your own attorney and you have to have one appointed, then, that is somebody that is appointed from the Public Defender's Office and in this case, it is Mr. Hughes. You may have a conflict with him or whatnot, you may not like him, that is no grounds. So, Mr. Hughes is going to be your attorney.

Appellant: I would like to say that he has a conflict of interest between the two of us.

Court: Pardon me?

Appellant: That there is a conflict of interest between the two of us. I would like that to be on the record for purposes of appeal. That I don't want him to represent me.

Hughes: I'm not sure what the conflict of interest is, Your Honor.

Appellant: The conflict of interest is that you have not visited me at all in this case.

Hughes: That is untrue.

Appellant: When did you visit me?

Court: Well, I am not going to be part of some squabbling match.

Appellant: It is not a squabbling match.

Court: Listen. If you want to make your objections known, you have made them to him for the purposes of your appeal record, but I am not going to sit here and listen to the two of you squabble over what he did do or didn't do. . . .

Appellant asserts that the trial court failed to appoint new counsel or to properly ascertain whether the risk of an actual conflict of interest was too remote to warrant the appointment of separate counsel and that its failure to do either entitles him to automatic relief without a showing that he suffered prejudice. See Holloway v. Arkansas, supra.

However, the trial court conducted a proper inquiry. The court questioned appellant regarding the nature of the conflict. Appellant asserted the conflict existed because Hughes had not visited him while he was in jail. The court ascertained at that point that this was not an allegation that Hughes actively represented conflicting interests and therefore that appellant was not entitled to a new public defender. We hold that the trial court did not err because the conflict alleged was not the type that would entitle appellant to new counsel.

The Sixth and Fourteenth Amendments to our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the assistance of counsel before he can be validly convicted and punished by imprisonment. See Faretta v. California, 422U.S. 806 (1975); Johnson v. Zerbst, 304 U.S. 458 (1938). However, contrary to appellant's assertion, prejudice will be presumed from a conflict of counsel's interest only when the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance. See Cuyler v. Sullivan, 446 U.S. 335 (1980); see also Johnson v. State, 321 Ark. 117, 900 S.W.2d 940 (1995). A petitioner is not entitled to relief under the Cuyler test unless he satisfies both prongs of the test. See Cuyler v. Sullivan, supra.

Appellant failed to satisfy either prong of the Cuyler test. First, as the State argues, the conflict of interest asserted by appellant - that his attorney had not visited him - does not violate any constitutional provisions because the type of conflict of interest implicated by constitutional guarantees are those in which it is alleged that counsel actively represents conflicting interests. See McCuen v. State, 328 Ark. 46, 58, 941 S.W.2d 397, 403 (1997). Once the court determined that the conflict was not the type of conflict affording appellant relief, it was not required to conduct further inquiry merely because appellant intoned the words, "conflict of interest." Second, while an attorney's failure to visit with his client presumably could affect his representation, appellant offered no evidence of this when he stated that appellant had not visited him. On these facts, we hold that the trial court did not fail to properly ascertain whether appellant was entitled to a new attorney due to an alleged conflict of interest with his appointed counsel.

II. Right to Counsel

Appellant raises three arguments regarding the violation of his right to counsel. Healleges that he did not knowingly, intelligently, or voluntarily waive his right to counsel under the Sixth and Fourteenth Amendments because 1) the trial court improperly presented him with a "Hobson's choice" of proceeding with appointed counsel who was unprepared or representing himself pro se; 2) the trial court failed to adequately inquire into whether his waiver of the right to counsel was voluntary and failed to adequately advise him of the dangers and disadvantages of self-representation as is required pursuant to Faretta v. California, supra; and 3) the appointment of stand-by counsel did not cure the constitutional infirmity created by the trial court's failure to conduct a searching inquiry into whether appellant made a voluntary waiver.1

The constitutional right to counsel is a personal right and may be waived at the pretrial stage or at trial. See Johnson v. Zerbst, 304 U.S. 458 (1938); Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999) Philyaw v. State, 288 Ark. 237, 704 S.W.2d 608 (1986)(overruled on other grounds). A defendant in a criminal case may invoke his right to defend himself pro se provided that (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues. See Philyaw v. State, supra. Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. See Philyaw v. State, supra.

The burden is upon the State to show that an accused voluntarily and intelligently waived his fundamental right to the assistance of counsel. See Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995); See also Philyaw v. State, supra. A trial court's ruling on waiver of counsel will not be set aside unless clearly erroneous. See Loane v. State, 271 Ark. 797, 611 S.W.2d 190 (1981). We hold that the trial court in this case did not err because 1) after appellant requested new counsel, the court permitted him to chose to proceed with appointed counsel or represent himself; 2) the trial court made sufficient inquiries to determine whether appellant's decision to proceed pro se was voluntary, knowing, and intelligent; and 3) appellant received effective assistance of counsel.

Where, on the eve of trial, a defendant seeks new counsel, the court must determine whether a continuance will be granted in order to allow the defendant to obtain new counsel. If the court determines that no good cause exists to allow the defendant a continuance to obtain new counsel, the defendant must choose between proceeding with appointed counsel or representing himself. See United States v. Swinney, 970 F.2d 494 (8th Cir. 1992); see, e.g., Daniels v. State, 322 Ark. 367, 908 S.W.2d 638 (1995). If appellant chooses to represent himself, the trial court must make a sufficient inquiry to determine that the defendant's waiver of counsel is voluntary, knowing, and intelligent, and must warn the defendant of the dangers of self-representation. See Daniels v. State, supra. Once competent counsel is obtained, the request for a change in counsel must be considered in the context of the public's interest in the prompt dispensation of justice. See Burns. v. State, 300 Ark. 469, 780 S.W.2d 23 (1989).

Here, appellant made a lengthy, rambling diatribe in which he repeatedly insisted that he was not going to trial. Only when that effort failed to produce the result he wanted (apparently, a plea bargain), did he attempt to "fire" Hughes. Appellant alleged that he had no confidence in Hughes because he felt that Hughes mishandled his petition for revocation, even though Hughes had not represented him in that matter. Appellant further alleged that Hughes was not prepared and had not completed discovery.

However, Hughes indicated to the trial court that discovery was "essentially complete." Further, Hughes did not represent to the trial court that he was unprepared. He stated that appellant's file had been updated and he had not had a chance to look through the file since the update, but this statement was given in the context of arguing the admissibility of appellant's prior instances of domestic abuse. Finally, while the State had not provided all of the pictures of the victim that it intended to use at trial, it indicated it would have the photos to Hughes that same afternoon, which would give him the better part of two days to examine the photos.

In short, while discovery was not complete, the record does not indicate that Hughes was unprepared. To the contrary, he filed several pretrial motions on appellant's behalf, without any objection by appellant. Furthermore, as discussed below, Hughes's substantial participation at trial belies the assertion that he was unprepared. Therefore, we hold that the trial court did not err in forcing appellant to choose between proceeding with appointed counsel or representing himself.

The next issue is whether the trial court made sufficient inquiries to determinewhether appellant made a voluntary, knowing, and intelligent waiver of his right to receive effective counsel. Appellant maintains that the trial court failed to advise him of the dangers and disadvantages of self-representation; failed to ensure that he understood the potential consequences of a conviction; failed to ensure that he was familiar with the rules of evidence and the rules of civil procedure; failed to address the question of his familiarity with trial procedure; and failed to inquire whether he was financially able to hire a substitute attorney.

Appellant correctly asserts that the appointment of stand-by counsel does not cure the constitutional infirmity created by the court's failure to conduct a searching inquiry into whether appellant made a voluntary waiver. See United States v. Kimmel, 672 F.2d 720, 721 (9th Cir. 1982). However, here, the trial court made the proper inquiries. Two days prior to trial appellant asserted that he wanted to change attorneys. The trial court properly informed him of his options: continue with the public defender, hire his own attorney, or proceed pro se. It is true that appellant reluctantly agreed to proceed pro se and stated repeatedly that he was not qualified to represent himself. However, as noted previously, the court had the option to force appellant to proceed with appointed counsel or to represent himself. Further, the trial court repeatedly advised appellant of the dangers of self-representation, with the last warning being given immediately before trial started. Specifically, the court warned appellant that it would be unwise to represent himself and that the court did not think he should try to represent himself; that they were still proceeding to trial as scheduled even if he hired another attorney and would not be delayed if he got "frustrated" by the proceedings; that he would be held to the same rules of evidence and procedure as any attorney; and thatthe court could not assist him in his representation (although the court, in fact, did so).2 The trial court also conducted an inquiry into appellant's education and appellant informed the court that he had received one year of paralegal training. At one point, appellant stated that he was qualified to represent himself "mentally, but not legally."

We hold that the court made sufficient inquiries to determine that appellant's waiver was voluntary, knowing, and intelligent. First, appellant had received paralegal training for one year. Moreover, the trial court was not required to "ensure that appellant was familiar with the rules of evidence and the rules of civil procedure or trial procedure" or that he was qualified "legally." The right to self-representation is not restricted to those with legal training. A defendant need not have the skill and experience of a lawyer in order to competently and intelligently choose self-representation. See Faretta v. California, 422 U.S. 806 (1975).

In any event, the record shows that the trial court and Hughes assisted appellant as the case progressed by instructing him on several occasions about procedure. Although thecourt failed to inquire whether appellant was financially able to hire a substitute attorney, this does not warrant reversal because he received active representation and advice from his standby counsel. See Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996). Thus, we hold that the trial court made the proper inquiries to determine that appellant's waiver of the right to counsel was knowing, intelligent, and involuntary.

We also hold that appellant was not denied effective assistance of counsel. Appellant asserts: "[T]he trial transcript reflects that no one assisted in Watson's defense at trial except Watson himself. He acted pro se throughout the entire jury trial. `Standby' counsel `appeared' in The Courtroom only in the sense that he sat at the counsel table - he did little or nothing to assist Watson." (Emphasis in original.) This assertion is simply untrue and is directly contradicted by the record.

It is true that appellant largely conducted his own examination of his witnesses. But it is equally true that the record shows that Hughes actively participated in every stage of the trial, from voir dire to sentencing. Hughes raised appropriate objections and responded to the State's objections throughout the trial. He also conducted the cross-examination of the State's expert witness and examined appellant. Further, he continually advised appellant during the course of the trial. For example, Hughes advised appellant on the type of information he needed to elicit from the witnesses, and whether to testify on his own behalf. He also moved for a directed verdict at the close of the State's case and renewed this motion at the close of all of the evidence. Finally, he participated in the jury-instruction conferences and during the sentencing hearing. Therefore, we hold that appellant was not denied theassistance of effective counsel.

III. Denial of Appellant's Motion for a Continuance

Appellant's final argument is that the trial court erred in denying his motion for a continuance. The State argues that we should find no error because appellant has not demonstrated prejudice. See Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000).3

The grant or denial of a motion for continuance is within the sound discretion of the trial court, and that court's decision will not be reversed absent an abuse of discretion amounting to a denial of justice. See Anthony v. State, 339 Ark. 20, 2 S.W.3d 780 (1999). Under our rules the court may grant a continuance only upon a showing of good cause and only for so long as necessary. See Godbold v. State, 336 Ark. 251, 983 S.W.2d 939 (1999). When a motion for continuance is based on a lack of time to prepare, the appellate court will consider the totality of the circumstances. See Davis v. State, 318 Ark. 212, 885 S.W.2d 292 (1994). The burden of showing prejudice is on appellant. See id. When a request for continuance is predicated on an alleged lack of time to prepare, the appellant must specify what was not done at trial that could have been done if the continuance had been granted, in order to demonstrate prejudice. See Anthony v. State, supra.

Appellant's motion arose after he immediately alleged a conflict of interest as follows:

Court: [I]f you have got objections you make them Mr. Watson. You can make them right now if you want to make anything in addition to what you have already said.

Appellant: Your Honor, I object to the trial on Tuesday. I would ask that it be continued for the purposes of an attorney. I think that that attorney should have ample time to familiarize himself with the case.

Court: All right. That motion for a continuance will be denied. This case was filed on April the 7^th or the amended complaint was filed on April the 7^th. The original information was filed on July 19^th of 1999. Your motion for a continuance is denied. Do you have any other objections?

At that point appellant indicated that he wanted the evidence to be turned over to him, since he was representing himself. Hughes indicated that he could have the information to appellant by that afternoon.

We hold that the trial court did not abuse its discretion in denying appellant's motion for a continuance in this case. Appellant seemed to request a continuance on the basis that he and Hughes needed additional time to prepare. As noted previously, discovery was not complete at the time of the pretrial hearing in this case. During the April 10 hearing, Hughes indicated that, "We updated this file yesterday and this is what I have got. I haven't had time to look through it yet . . . ." In addition, the State indicated that the camera shop failed to make duplicate enlargements of photos of the victim's injuries. The State explained that the photos were at the photography shop and promised to deliver the enlargements to the Public Defender's Office that afternoon. Hughes also stated he had that day received a copy of some pictures of the victim's injuries and a copy of the 911 tape. However, Hughes he madeno assertion that he was unprepared for trial.

Appellant maintains that, at best, the State provided complete discovery to him fewer than forty-eight hours prior to trial and this was too little time for him to prepare from his jail cell. However, appellant's lack of time to prepare for trial was due to his own conduct.

Hughes filed three motions two days prior to the motion in limine, and appellant raised no objection to his representation at that point. Only after it became clear that he would not receive a plea bargain, did appellant attempt to fire Hughes. He repeated that he was not going to trial and demanded that he be taken to jail. His requests for a new attorney and a continuance were made two days prior to trial after the case had been pending for ten months.

Finally, as the State asserts, appellant has not shown that he was prejudiced. Hughes informed the trial court that discovery was "essentially complete." It appears that at the time of the motion appellant and his counsel had all of the State's evidence except the photos and the 911 tape, which were to be provided to them later that same day. To the extent that appellant was unprepared, it appears that Hughes competently assisted in his defense. Moreover, appellant failed to demonstrate how the trial would have been conducted differently had the continuance been granted.

In short, the record in this case shows that appellant voluntarily, knowingly, and intelligently waived his right to counsel, but nonetheless received effective assistance of counsel, as well as assistance from the trial court. Accordingly, we affirm his convictions.

Affirmed.

Bird, J., and Hays, S.J., agree.

1 Appellant also notes that the Judgment and Commitment order indicates that appellant did not make a voluntary, knowing and intelligent waiver. However, given the record in this case, it is apparent that this is simply a typographical error.

2 We note that the court was not required to issue these warnings, because warnings regarding the dangers of self-representation are not required where a defendant chooses to participate in his defense with his appointed attorney, an arrangement commonly known as "hybrid representation." See Bennett v. State, 308 Ark. 393, 825 S.W.2d 560 (1992); see also Monts v. Lessenberry, 305 Ark. 202, 806 S.W.2d 379 (1991). The trial court indicated at the outset that Hughes would act "to the extent that [appellant] sees fit to need your services." Further, immediately prior to trial, Hughes informed the court that "although Mr. Watson is acting as his own counsel he has asked me to handle the more technical aspects of this." In addition, the court granted Hughes's request to allow a pause for appellant to consult with Hughes "if he had a question at any time." Therefore, it was clear that both appellant and his counsel would participate in his defense and in that case, the court was not required to issue the warnings regarding self-representation.

3 The State counters that we need not address appellant's argument because he argued a lack of time to prepare, but failed to specify what was not done at the trial that could have been done had the continuance been granted. See Dye v. State, 70 Ark. App. 329, 17 S.W.3d 505 (2000). The State apparently misapprehends Dye. That court found that the defendant did not demonstrate prejudice where he did not state in his motion for a continuance what would have been done differently at trial had the motion been granted. However, we did not hold that a defendant's failure to do so relieves the court of the duty to consider whether the a defendant has demonstrated prejudice.