# FILED April 12, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

STATE OF TENNESSEE ) FOR PUBLICATION ) Plaintiff-Appellee ) FILED: APRIL 12, 1999 ) v. ) KNOX COUNTY ) GERALD PATRICK SMALL ) HON. MARY BETH LEIBOWITZ, ) JUDGE Defendant-Appellant ) ) NO. 03-S-01-9804-CR-00038

For Appellant: For Appellee: KENNETH F. IRVINE, JR. JOHN KNOX WALKUP Knoxville, TN Attorney General and Reporter MICHAEL E. MOORE Solicitor General ELIZABETH T. RYAN Assistant Attorney General Nashville, TN RANDALL E. NICHOLS District Attorney General WILLIAM J. BLEVINS Assistant District At tor ney Genera l Knoxville, TN

OPINION

AFFIRMED BIRCH, J.1 The parties use the term “elbow counsel.” We interpret “elbow

counsel” to mean an attorney who functions in a purely advisory role, without actively participating in the trial. A pro se defenda nt who is permitted such counsel may consult counsel for guidance and advice, but otherwise handles the defense of the case on his or her own. Because we find the term “advisory counsel” to more accurately describe the role such an attorney plays, we will use that term in place of “elbow counsel.” Another term commonly used in other jurisdictions is “standby counsel.” We perceive “standbycounsel” to mean counsel who is not actively participating in the trial but is available to step in and take over as counsel if called upon to do so by either the defendant or the trial court. We recognize that in the past, appellate courts have used the terms “elbowcounsel,” “advisory counsel,” and “standby counsel” interchangeably. We now take the opportunity to clarify these terms for Tennessee.

2 One of these counts was abandoned. The State requested an order of nolle prosequi prior to trial in one count. 2 We granted permission to appeal in this case in order to determine whether an accused who has intelligently and voluntarily waived the right to counsel and chosen to pr oceed pr o se is constitutionallyentitled to the assistance of adv isory counsel. 1 We conclude that there is no such constitutional e ntitle ment and that the appointment of such advisory counsel is a matter entirely within the discretion of the t rial court. Here, the trial court declined to appoint advisory counsel. For the r eas ons below stated, we find the trial court’s decision to be amply supported by the record and affirm the judgment of the Court of Criminal Appeals.

Gerald Patrick Small was indicted in 1993 on five counts of theft of property of a value over $10,000, 2 one count of theft of property of a value over $1,000, one count of attempted theft, and one count of securities fraud. Apublic defender was appointed to represent him. In March 1995, however, the defendant f iled a “Motion to Change Counsel,” in which he reques ted permission to3 Investors also received a copy of an invoice reflecting their

ownership interest in a certain number of cases of toothpaste. The investor s ne ver planned to take actual possession of the toothpaste; instead, they were led to believe they would receive the profits from the sale of the toothpaste. 3 represent himself, albeit with the aid of appointed counsel as advisorycounsel. After considering the motion, the t rial court concluded that it could either allow the defendant to proceed pro se or permit representation by appointed counsel who would handle all aspe cts of the trial, but that it could not allow both. Accordingly, the court relieved the public defender and permitted the defendant to conduct his own defense.

Asynopsis of the convicting evidence reveals that the defendant solicited persons to invest into a co mpany known as Patrick Industries, Inc. The defendant represented to prospective investors that Patrick Industries wa s a manufacturer and distributor of toothpaste and other personal hygiene products. In the newspaper advertisement soliciting investors, the defendant represented that the return on the investments c ould b e as favorable as twenty to one. Two persons each invested $25,000. Three persons invested amounts of $5,000, $6,000, and $12,500, respectively. In return for their monies, eac h p erson received shares of stock in Patrick Industries. 3

The bank records for Patrick Industrie s revealed that
over fifty percent of the solicited funds were either spent on personal expenses for the defendant and his f ami ly or withdrawn fromthe company account by checks made out to “cash.” Other funds
were apparently spent on construction of a n oper ations plant and4

other business expenses. Patrick Industries, howe ver, n ever brought any product to market. The State presented additional evidence that the defendant had been investigated in the past for similar schemes. The jury convicted the defendant of five counts of theft and one count of fraud. The trial court imposed a Range I effective sentence of ten years.

The defendant appealed his convictions and sentences, arguing that the trial court had imprope rly de nied him the assistance of advisory counsel. The Court of Criminal Appeals affirmed the defendant’s convictions and sentences, concluding that there was no constitutional right to such counsel and that the trial court did not abuse its discretion by failing to appoint advisory counsel.

Whether a pro se accused is entitled to advisory counsel is a question of law, which we review de novo. See State v. Davis , 940 S.W.2d 558, 561 (Tenn. 1997).

Boththe United States and Tennessee Constitutions guarantee the right of an accused to self-representation or to representation by counse l. U.S. Const. amend. VI; Tenn. Const. art. I, § 9; Faretta v. California , 422 U.S. 806, 807, 95 S. Ct. 2525, 2527, 45 L. Ed. 2d 562, 566 (1975); State v. Northington , 667 S.W.2d 57, 60 (Tenn. 1984). The right to represent oneself, however, should be granted only after a determination by the trial court that the defendant is both knowingly and i ntel ligently waivin g the valuable right to assistance of counsel. Ten n. R .5

Crim. P. 44(a); Johnson v. Zerbst , 304 U.S. 458, 464-65, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466-67 (1938); State v. Burkhart , 541 S.W.2d 365, 368 (Tenn. 1976). In fact, in cases where an intelligent, knowing waiver was not adequatelyshown in the record, the defendants ' conv ictions have been reversed. See State v. Coleman , 519 S.W.2d 581 (Tenn. 1975).

The right to self-representation and the right to counsel have been construed to be alternative ones; “[t]hat is, one has a right either to be represented by counsel or to represent himself, to conduct his own defense.” State v. Melson , 638 S.W.2d 342, 359 (Tenn. 1982). “[W]aiv er of one right constitutes a correlative assertion of the other. . . . [A] criminal defendant cannot logicallywaive or assert both rights.” Burkhart , 541 S.W.2d at 368 (quoting United States v. Conder , 423 F.2d 904, 908 (6th Cir. 1970)). One who knowingly and intelligently waives the right to counsel cannot later allege the deprivation of effective assistance of counsel. See State v. Goodwin , 909 S.W.2d 35, 41-42, 45 (Tenn. Crim. App. 1995).

This Court has previously addressed this issue in the context of “hybrid representation,” that is, where both the defendant and counsel were permitted to participate in the defense. In Burkhart , we stat ed tha t such hybrid representation should be permitted “sparingly and with ca uti on and only after a judicial determination that the defendant (1) is not seeking to disrupt orderl ytria l procedure and (2) that the defendant has the intelligence, ability and general competence to participate in his4 The term used in the case was “elbow counsel.”
5 See United States v. Kneeland , 148 F.3d 6, 13 (1st Cir. 1998); United States v. Einfeldt , 138 F.3d 373, 378 (8th Cir. 1998), cert. denied , 119 S. Ct. 126 (1998); United States v. Mikolajczyk , 137 F.3d 237, 246 (5thCir. 1998); United States v. Singleton , 107 F.3d 1091, 1100-03 (4th Cir. 1997), cert. denied , 118 S. Ct. 84 (1997); United States v. Mosely , 810 F.2d 93, 97-98 (6thCir. 1987); People v. Crandell , 760 P.2d 423, 436 (Cal. 1988); Reliford v. People , 579 P.2d 1145, 1148 (Colo. 1978); State v. Oliphant , 702 A.2d 1206, 1212 (Conn. App. Ct. 1997); Eady v. State , 695 So. 2d 752, 755-56 (Fla. Dist. Ct. App. 1997); Reviere v. State , 498 S.E.2d 332, 335 (Ga. Ct. App. 1998); People v. Redd , 670 N.E.2 d 58 3, 601 (Ill. 1996); Parren v. State , 523 A .2d 5 97, 599 (Md. 1987), cited with approval in Harris v. State , 687 A.2d 970, 973-74 (Md. 1997); People v. Dennany , 519 N.W.2d 128, 141 (Mich. 1994); State v. Wilson , 564 N.W.2d 241, 253 (Neb. 1997); Harris v. State , 942 P.2d 6 own defense.” Burkhart , 541 S.W.2d at 371. In discussing hybrid representation, we mentioned, in passing, the same variation on the issue of representation which is presented here: that is, permitting a defendant to conduct his or h er ow n defense with an attorney present in an advisory capacity. 4 Id.

Subsequently, in Melson , we restated that “[t]he right of
a defendant to participate in his own defense is an alternative
one. . . . It is entirely a matter of grace for a defendant to represent himself and have counsel, and such p rivile ge should be granted by the trial cou rt only in exceptional circumstances.” Melson , 638 S.W.2d at 359.

Other jurisdictions which have addressed the concept of advisorycounsel almost universallyagree that there is no federal
or state constitutional right to such counsel once a defendant has knowingly and intelligently waived the right to counsel. Rather, the decision whether to appoint advisory counsel is within the discretion of the trial court. 5151, 155 (Nev. 1997); Pe ople v. Mirenda , 442 N.E.2d 49, 51 (N.Y.

1982); State v. Cummings , 546 N.W.2d 406, 419 (Wis. 1996); see also Wake v. Barker , 514 S.W.2d 692, 696-97 (Ky. 1974)(holding that trial courts possess the power to appoint standby counsel); N.C. Gen. Stat. § 15A- 1243 ( 1997)(“When a defendant has elected to proceed without the assistance of counsel, the trial judge in his discretion may appoint standbycounsel to assist the defendant when called upon and to bring to the judge's attention matters favorable to the defendant upon wh ich the judge should rule upon his own motion.”). But see Commonwealth v. Africa , 353 A.2d 855, 864 (Pa. 1976)(“Whenever a defendant seeks to represent himself, an d particularly when he may be disruptive, standby counsel should be appointed.”); State v. Sanders , 237 S.E.2d 53, 54 (S.C. 1977)(h oldin g that a defendant has a right to counsel even if he chooses to represent himself), cited with approval in State v. Brewer , 492 S.E.2d 97, 99 (S.C. 199 7). See generallyJohn S. Herbrand, Annotation, Accused’s Right to Represent Himself in State Criminal Proceeding - Modern State Cases , 98 A.L.R.3d 13, § 24 (1980 & Supp. 1998). 7

We noted in State v. Franklin , 714 S.W.2d 252 (Tenn. 1986) (also a hybrid representation case), that

[o]ne of the most fundamental responsibilities of a trial court in a criminal case is to assure that a fair trial is conducted. Generally, the trial court, which has presided over the proceedings, is in the best position to make determinations regarding how to achieve this primary purpose, and absent some abuse of the trial court's discretion in marshalling the trial, an appellate court should not redetermine in retrospect and on a cold record how the case could have been better tried.
Id. at 258 (citation omitted).

The overall objective of every criminal trial is that the defendant receive a fair trial. The trial cou rt, wh ose responsibilityit is to ensure the orderly and fair progression of the proceedings, is in an excellent position to determine the legal assistance necessary to ensure a defendant’s right to a fair trial.8

This determination will depend, in part, upon the nat ure and gravityof the charge, the factual and legal complexity of the proceedings, and the intelligence and legal acumen of the defendant. See People v. Gibson , 556 N.E.2d 226, 233 (Ill. 1990). Thus, we hold that the decision whether to appoint advisory counsel to assist a pro se defendant rests entirely within the trial court’s discretion. The trial court’s decision on this issue will not be ov erturne d in the absence of a clear abuse of that discretion.

In the case before us, the record amply demonstrates that the defendant was clearly advised of the pit falls of selfrepresentation. Even thoughhe was informed prior to trial that he would not be fu rnished advisory counsel, he persisted in his request that he be allowed to represent himself.

Usin g the criteria established in United States v. McDowell , 814 F.2d 245 (6th Cir. 1987), the trial court determined that the defendant was aware of the nature of the charges against himand the possible sentence he was facing. He appeared to be in telligent and articulate. He informed the court of h i s fami liar itywith the rules of evidence and criminal procedure. Ultimately, he satisfied the trial court that his waiver of his right to counsel was a knowing and intelligent one.

The trial court indicated that it would have preferred to appoint advisory counsel to assist the defendant throughout the course of the trial. But believing that it lacked the authority,9

it declined to appoint such counsel. Our analysis, however, leads
us to conclude that the trial court does, indeed, have such authority. Even though the trial court did not believe it had such authority, the trial court’s decision to deny advisory counsel in this case is amply supported by the record.

I n conclusion, we hold that there is no constituti ona l right to the appointment of advisory counsel where a defendant has knowinglyand intelligently waived the right to counsel. Under the appropri ate circumstances, however, the trial court has the discretion to appoint advisory counsel. The trial court’s decision in this regard will not be overturned absent an abuse of that discretion. Accordingly, the judgment of the C our t of Criminal Appeals is affirmed. Costs are taxed against the defendant.

______________________________ ADOLPHO A. BIRCH, JR., Justice CONCUR: Anderson, C.J. Drowota, Holder, Barker, JJ.