Serial: 231697 

### IN THE SUPREME COURT OF MISSISSIPPI No. 2017-CT-01488-SCT
FRANKIEL. WILLIAMS a/k/a FRANKIE WILLIAMS alkla FRANKIELEE WILLIAMS


### v. STATE OFMISSISSIPPI
EN BANC ORDER 

# FILED MAY 28 

## 2020 OFFICE OF THE CLERK



# ci~11,'~w~i~s

The instant matter is before the Court on the Petition for Writ ofCertiorari filed by Frankie 

### L. Williams. Thepetitionwas granted by order ofthe Court onNovember 12, 2019. Upon further consideration, the Court finds that there is no need for further review and that the writ ofcertiorari should be dismissed. ITIS, THEREFORE, ORDEREDthatthewrit ofcertiorari is hereby dismissed onthe Court's own,motion. SO ORDERED, this the 

# JP ~ay ofMay"""""""~

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 FRANKIEL. WILLIAMS alk/a FRANKIE WILLIAMS a/k/a FRANKIELEE WILLIAMS 

### v. STATE OFMISSISSIPPI
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 thejudgment ofthe Court ofAppeals. 

## 12. Frankie Williams was convicted ofmurder andpossession ofa firearm by a convicted felon. He appealed, arguingthatthetrial courtviolatedhis rightto representhimselfandthat he received ineffective assistance ofcounsel. A divided Court ofAppeals affirmed, finding thatthe record did not indicatethatWilliams wishedto waive counsel, andthat even ifit did, he was incompetent to represent himself. The Court ofAppeals also dismissed Williams's ineffective assistance ofcounsel claim without prejudice to his ability to raise the issue in post-convictionproceedings. Williams petitionedthis Courtfor certiorari, whichwegranted to address the issue ofwhetherthe trial courtviolatedhis righttorepresenthimself. We now

2dismiss the petition for certiorari, despite the trial court's error of failing to follow Rule 7.1 (c) ofthe Mississippi Rules ofCriminal 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 oftrial, defense counsel requested outside ofWilliams'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 ofit is that I think he wants to fire counsel." The discussion continued, BYTHE COURT: Its [sic] too late for that and he is not qualified to represent himself. So,justtell 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 permittedto try himself? BY THE COURT: I'm telling you that he is not going to do that. BY [DEFENSE COUNSEL]: Ijust 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.

3BY [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. ButI am again makingtheruling thathe cannot [sic] representhimself.
BY [DEFENSE COUNSEL]: Ijust needed to put that on the record. In making the ruling that Williams could not represent himself, the trial court detailed some ofthe 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. BYMR. WILLIAMS: [O]fficially, [defense counsel], actingby counsel, rules himselfwhat he wants to (inaudible).

4BY 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 ofthe Courtto try this case to the best ofyour 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 ofAppeals 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 ofAppeals then found that even ifWilliams did invoke his right ofself-representation, the trial court did not err by denying Williams thatrightbecause Williams met an exceptionto the right ofself-representation. Id. at *7. The Court ofAppeals analyzed the facts itselfand 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 himselfor 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 Courtreviews 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 himselfifhe truly wants to do so." Faretta, 422 U.S. at 81 7 (also examining the lengthy history ofself-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 inwaiving counsel, Rule 7.1 (c) of theMississippiRules ofCriminalProcedure "adopts the constitutional standard" for waiver ofthe 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]henthe court learns that a defendant desires to act as his/her own attorney, the court shall conduct an on-the-record examination ofthe defendant to determine ifthe 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
6trial 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). Hadthe trial court not "learned" ofthis, its repeated statements that it would not allow Williams to represent himselfwould amount to nonsense. 1 Rule 7.1 (c) provides that once the trial court "learns" ofthe 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 atrial court determines whether a defendantwaives counsel, andthoseprocedures were not followed in this case. A trial court need only "learn" ofthe "desire" to self-represent to triggerthe mandatoryprocedures found inRule 7.1 (c), and that clearly occurred inthis case.

1Furthermore, the fault for any alleged lack of clarity regardi1_1g whether Williams desiredto representhimselflies squarely withthe trial court, as itrefusedto allow Williams to move to representhimself. Thetrial court'srefusalsto allowhimto make a formal request should not be held against Williams. 7Absent narrow exceptions, a defendant has an absoluteright to self-representation, and the State may not force counsel onto a defendant. Faretta, 422 U.S. 806. The trial court failed tomakethe appropriate determinationregardingwhetherWilliams knowingly andvoluntarily waived counsel, and, ifso, whether he met one ofthe narrow exceptions that may deprive a defendant ofthe right to self-representation. 

# ,s. Further, the CourtofAppeals' determinationthat Williams met one ofthe exceptions to the right to self-representation was inappropriate. The trial court did not make any such determination. As an appellate court, the Court ofAppeals 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 ofits duties to follow the procedures in Rule 7.1 (c), to determine whether a proper waiver ofthe right to counselhas occurred, orto determine whether an exceptionto therightto self-representation is met, ifapplicable. ,10. Becausethe trial courterredby 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 inboth our state and federal constitutions, I would
8grant Williams's petition for certiorari, reverse Williams's conviction, vacate the portion of the Court ofAppeals opinion that affirms Williams's conviction, and remandthe case to the trial court for a new trial. KITCHENS, P.J., JOINS THIS SEPARATE WRITTEN STATEMENT.

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