THE STATE OF SOUTH CAROLINA In The Supreme Court

The State, Respondent,

v.

Lamont Antonio Samuel, Petitioner.

Appellate Case No. 2015-002401

ON WRIT OF CERTIORARI TO THE COURT O F APPEALS

Appeal From Orangeburg County

The Honorable Diane Schafer Goodstein, Circuit Court Judge

Opinion No. 27768 Heard March 1, 2017 – F iled February 28, 2018

REVERSED AND REMANDED

Appellate Defender Robert M. Pachak, of Columbia, for

Petitioner.

Attorney General Alan McCrory Wilson, Chief Deputy Attorney General J. Robert Bolchoz, Assistant Deputy Attorney General Donald J. Zelenka, Senior Assistant Attorney General W. Edgar Salter, III, all of Columbia, and Solicitor David Michael Pascoe, Jr., of Orangeburg, for Respondent.JUSTICE HEARN: In this case we clarify the proper scope of a circuit judge's inquiry under Faretta 1 when a criminal defendant knowingly, intelligently, and voluntarily waives his right to counsel and requests to proceed pro se . Prior to his trial for murder, Lamont Antonio Samuel moved to represent hims elf under Faretta

. The circuit judge denied his motion, finding Samuel was lying a bout whether he had or would have access to legal coaching in preparation for trial . The court of appeals

affirmed. State v. Samuel , 414 S.C. 206, 777 S.E.2d 398 (Ct. App. 2015). We now

reverse.

FACTUAL/PROCEDUR AL BACKGROUND

Samuel was indicted for the murder of his cousin, Taneris Hami lton. On the day his case was called to trial, Samuel indicated he was dissa tisfied with defense

counsel and made a Faretta motion to waive his right to counsel and proceed pro se

. The circuit judge then properly initiated an ex parte hearing to discuss Samuel's

Faretta motion with him.

Samuel informed the court that he was twenty-one years old and had graduated from high school with a 4.0 GPA in all honors classes with hopes of enlisting in the Navy as a diesel mechanic. Additionally, Samu el affirmed he understood he was charged with murder and was aware of the elements of the crime. He realized he could be sentenced to at least thirty years in p rison, with a maximum possible sentence of life imprisonment without the possibility of parole. Samuel also indicated he had never been treated for drug or alcohol abuse, mental, or emotional health issues, nor had he taken any medication, drugs, or alcohol in the previous seventy-two hours. The judge not ed she found Samuel to be "inc redibly articulate" and "exceptionally bright;" nevertheless, she repeatedly told S amuel she had misgivings about his self-representation. Samuel thanked the j udge for her advice, but reiterated his request to proceed pro se

. The circuit judge then inquired a s to whether Samuel had any l egal training. He responded that he had been stu dying trial procedures in the Criminal Law Handbook, which he had received in the mail while in prison. Samuel testified that

his mother had sent him the book upon the advice of attorney Ca rl Grant. The circuit judge further questioned whether Samuel was familiar with the r ules of evidence,

motions in limine , and motions for directed verdict. Samuel affirmed that he wa s, based upon his study of the Crim inal Law Handbook and coaching he had received

from Grant. He also acknowledged he would be required to follo w the rules of

1 422 U.S. 806 (1975).evidence if he were to represent himself, and that he had the r ight not to testify under the Fifth Amendment. Finally, the circuit judge asked Samuel i f he was aware of any possible defenses he might have to the charge against him a nd, following some prompting questions by the judge, he acknowledged his intent to maintain his innocence based upon his co-def endant's alleged confession.

Rather than concluding the Faretta colloquy, the circuit judge continued to caution Samuel against representing himself, stating in her opi nion Samuel would be far better defended by a trai ned lawyer, it would be unwise of him to waive his right to counsel, and she did not believe he was sufficiently f amiliar with the law, procedure, or rules of evidence to adequately represent himself . Despite the judge's warnings and in light of the potential penalties he faced, Samu el voluntarily reaffirmed his desire to dispe nse with the assistance of counse l and proceed pro se

. Nevertheless, the circuit judge continued her attempts to diss uade Samuel, asking "Do you know anything or anyone that I can have you spea k with that might urge you to have a lawyer represent you?" Sam uel responded,

No, ma'am. . . . I mean, my mama, basically paid Mr. Grant a go od bit amount [sic] of money. The reas on why he couldn't represent me is because . . . his paralegal is re lated, you know, in some manne r. So he had decided to just go over the steps with me day by day. I go through the trial, I got back to him. I talk to him, he'll tell me thi ngs or he won't

-- he's not going to be in the courtroom, present. .

. . I know he's not representing me, but he is coaching me on --.

The circuit judge then stated, "You're bright enough, educated enough. .

. . You don't

have a problem that I'm aware of that I can use, in all candor, to keep you from representing yourself." However, instead of ruling on Samuel's motion at that point, the circuit judge summoned Grant to question him on his relatio nship with Samuel. Nonetheless, prior to Grant's arrival, the judge stated on the record that her

inclination was to allow Sam uel to represent himself.

Upon his arrival, Grant testified as follows:

I have no recollection of ever sharing with Ms. Betty Hickson, [Samuel's] mother, anything pert aining to any rules of evidence or rules in criminal procedure or anything like that. . . . The only di scussion has been about the legal fees to represent this young man. .

. . A lso, I've

not been retained. .

. . I've not offered any assistance to an yone, Judge. I've not even given this young ma n any kind of copy of the rule s of evidence or rules of criminal procedure or offered my assistanc e in anyway. . . . [A]s far as my offe ring any assistance to him, Judg e, number one, if he's representing himself I would not be available to p rovide any assistance to him in any capacity.

After hearing Grant's testimony, the circuit judge denied Samue l's request to proceed

pro se citing Rule 3.3 of the Rules of Professional Conduct 2 and Gardner v. State

, 351 S.C. 407, 412–13, 570 S.E. 2d 184, 186–87 (2002) (including whether a defendant is attempting to delay or manipulate the proceedings as one of ten factors courts can consider when determining if a defendant "has a suff icient background to understand the dangers of self-re presentation"). Specifically, the circuit judge interpreted Samuel's and Grant's conflicting testimony to mean Samuel was lying to her and attempting to manipulate the proceedings.

Thereafter, Samuel proceeded to trial with his counsel and was found guilty and sentenced to fifty years imprisonment. He appealed his con viction, asserting the circuit judge erred in denying his right to self-representation , and the court of appeals

affirmed. Samuel , 414 S.C. at 213, 777 S.E.2d at 402. This Court granted Samue l

a writ of certiorari to review t he court of appeals' opinion.

STANDARD OF REVIEW

Whether a defendant has knowingly, intelligently, and voluntari ly waived his right to counsel is a mixed question of law and fact which appe llate courts review

de novo. United States v. Lopez-Osuna , 242 F.3d 1191, 1198 (9th Cir. 2000). Specifically, we review a circuit judge's findings of historical fact for clear error; however, we review the denial of the right of self-representati on based upon those findings of fact de novo. United States v. Bush , 404 F.3d 263, 270 (4th Cir. 2005). In doing so, this Court must consider the defendant's testimony, history, and the circumstances of his decision, as presented to the circuit judg e at the time the

2 Rule 3.3, Candor toward the Tr ibunal, reads in pertinent part:

(a) A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false

statement of material fact or la w previously made to the tribun al by the lawyer;

. . . (d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enab le the tribunal to make an in formed decision,

whether or not the facts are adverse.

Rule 3.3, RPC, Rule 407, S CACR (emphasis added).defendant made his request. United States v. Singleton , 107 F.3d 1091, 1097 (4th Cir. 1997).

LAW/ANALYSIS

Through counsel, Samuel now argues the court of appeals erred i n affirming the circuit judge's denial of his Faretta motion to proceed pro se

. In particular, Samuel contends the circuit judge impermissibly exceeded the sc ope of the Faretta inquiry by considering Grant's testimony to conclude that Samuel was attempting to manipulate the proceedings, thereby precluding him from proceed ing pro s e. We

agree.

In Faretta , the United States Supreme Court held that criminal defendants

have a fundamental right to self-representation under the Sixth Amendment. 422

U.S. at 819–21. In order to effectively invoke this right of s elf-representation, the defendant must clearly and unequivocally assert his desire to p roceed pro se and such request must be made knowingly, intelligently and voluntar ily. United States
v. Frazier-El , 204 F.3d 553, 558 (4th Cir. 2000). Where a defendant invokes his right of self-representation before trial, the only inquiry the circuit judge may undertake is that required by Faretta

. State v. Barnes , 407 S.C. 27, 35, 753 S.E.2d 545, 550 (2014). Thus, the only basis upon which a circuit jud ge may deny a defendant's pre-trial motion to proceed pro se is if the court determ ines the defendant has not knowingly, intelligentl y, and voluntarily waived his ri ght to counsel. State

v. Reed , 332 S.C. 35, 41, 503 S.E.2d 747, 750 (1998). A circuit judge 's denial of a defendant's knowing and voluntary request to proceed pro se is a structural error requiring automatic reversal and a new trial. State v. Rivera , 402 S.C. 225, 247, 741 S.E.2d 694, 705 (2013).

Whether a defendant has intelligently waived his right to coun sel depends upon the particular facts and circumstances surrounding each ca se, including the background, experience, and conduct of the accused. Singleton , 107 F.3d at 1097. Moreover, as the United States S upreme Court has emphasized, "t he competence that is required of a defendant seeking to waive his right to c ounsel is the competence

to waive the right , not the competence to represent himself." Godinez , 509 U.S. at 399 (emphasis in original). In ot her words, whether a defendan t is capable of effectively representing himself has no bearing upon his ability to elect selfrepresentation. Id. at 400; see also Faretta , 422 U.S. at 836 (holding a defendant's "technical legal knowledge .

. . [is] not relevant to an assess ment of his knowing exercise of the right to defend himself"). Thus, this Court ha s held that[t]he ultimate test of whether a defendant has made a knowing a nd intelligent waiver of the right to counsel is not the trial jud ge's advice,

but the defendant's understanding. A determination by the tria l judge that the accused lacks the expertise or technical legal knowled ge to proceed pro se does not justify a denial of the right to selfrepresentation; the only relevant inquiry is whether the accused made a knowing and intelligent waiver of the right to counsel.

State v. Brewer , 328 S.C. 117, 119, 492 S.E.2d 97, 98 (1997) (internal citatio ns omitted) (emphasis added).

Although a defendant's decision to proceed pro se may ultimately be to his detriment, such requests "must be honored out of that respect f or the individual

which is the lifeblood of the law." Barnes , 407 S.C. at 35–36, 753 S.E.2d at 550 (internal quotation omitted); see also Frazier-El , 204 F.3d at 558 (noting a defendant's right of self-repres entation generally must be hono red, regardless of

whether he would benefit from a dvice of counsel). Indeed, "[a] decision can be made intelligently, with an unders tanding of the consequences, without the decision itself being a wise one." Reed , 332 S.C. at 41, 503 S.E.2d at 750.

We agree with Samuel that the circuit judge erred in refusing to allow him to represent himself at trial. In this case, the circuit judge re peatedly noted how intelligent and articulate she found Samuel to be. Samuel also clearly expressed his understanding of the nature of the charge against him and the p otential penalties he faced were he to be found guilty. He indicated he was making t he request of his own volition and continuously asked to represent himself despite th e circuit judge's persistent attempts to dissuade him. See Reed , 332 S.C. at 41, 503 S.E.2d at 750 (holding although it is the circuit judge's responsibility to i nform the defendant of the dangers and disadvantages of self-representation, whether t he judge believes the decision is prudent or wise is entirely irrelevant).

We acknowledge it was within the circuit judge's authority to s ummon Grant; however, her questioning of Grant should have been limited to d iscerning whether

Samuel's request was knowingly and voluntarily made. Moreover, our standard of review requires us to consider de novo the circuit judge's appl ication of Grant's testimony to Samuel's Faretta request. Bush , 404 F.3d at 270. We are unaware of any cases in which a circuit judge has relied on testimony from a third party witness, such as Grant, to determine whether a defendant has effectively invoked the right to proceed pro se . Moreover, whether Grant would be available to advise or coac hSamuel throughout the trial 3 relates to his competence to represent himself which,

as discussed supra , is entirely irrelevant to the issue of whether he effectively invoked his right of self-representation. Godinez , 509 U.S. at 399. Rather, it is clear the circuit judge, with the best of intentions, was so concerne d with Samuel proceeding pro se that she went beyond the scope o f the question at hand using Grant's testimony as the basis to prevent Samuel from invoking his constitutional right. We fully recognize the deli cate balance a circuit judge must try to achieve in safeguarding a defendant's cons titutional right to represent hi mself and the almost sure disaster that will result from his self-representation. Nevertheless, because we find Grant's testimony irrelevant to the issue, the circuit jud ge erred in relying on it to deny Samuel's request to represent himself. 4

Moreover, we find the circuit j udge's reliance on Rule 3.3 RPC and Gardner is misplaced. Not only has this Court never held that a criminal defendant acting pro

se must comply with the rules of professional conduct, but we are unaware of any jurisdiction which has explicitly required criminal defendants to comply with ethical rules governing lawyers. Indeed, this Court has suggested, alb eit in dicta , that the

3 We note both Samuel and Grant explicitly stated that Grant had not been hired as

Samuel's attorney nor would he be representing Samuel at trial. Indeed, the only discrepancy between their recitations of the situation was rega rding Grant's willingness and availability to provide advice and guidance to Samuel prior to and throughout the trial.

4 Contrary to the dissent's charge, we do not strip trial judges of their authority and discretion to maintain the integrity of the proceedings before them. Rather, we simply view the initial Faretta request through a different lens than the dissent. As this Court has previously stated, at the time a defendant invok es his constitutional right to proceed pro se the only relevant inquiry is that outlined in Faretta —whether the defendant is knowingly, int elligently, and voluntarily waiv ing the right to

counsel. Brewer , 328 S.C. at 119, 492 S.E.2d at 98. The sufficiency of such a request is a question of law for this Court to review de novo. Bush , 404 F.3d at

270. However, once a defendant h as been permitted to represent himself, the trial court has broad discretion to revoke that right for any of the reasons for which the dissent expresses concern. West , 877 F.2d at 285–86. Our holding does not require

trial courts to suffer "mischief" or disruptive behavior in the courtroom with no recourse, but recognizes a defendant's constitutional right to self-representation may be lost when, in the trial court' s discretion, he is disrupting or manipulating the trial

of a case. Respectfully, however , that inquiry is separate fro m the issue we resolve today which focuses on the trial court's initial decision to pe rmit a defendant to waive his right to counsel and proceed pro se.opposite may be true. See State v. Barnes , 413 S.C. 1, 3 n.1, 774 S.E.2d 454, 455

n.1 (2015) ("Even if we believe t hat a criminal defendant's exe rcise of his constitutional rights stem from impure motives, that motivation alone is not a basis to deny him these rights. Furth er, while it is unethical for a n attorney to engage in conduct which tends to pollute the administration of justice (R ule 7(a)(5), Rule 413 SCACR), we are unaware that this principle applies to a crimina l defendant." (emphasis added)). 5

Finally, although Gardner permits a circuit judge to consider a defendant's attempted manipulation of the proceedings, we discern no attemp t by Samuel to disrupt or manipulate the process here. In most cases where a court has found a defendant to be manipulative, the defendant was clearly attempt ing to dispense with counsel in order to make impermissible arguments or raise inval id defenses at trial— in effect, to "beat the system"—rather than to waive the benefi ts of counsel. See,

e.g. , Frazier-El , 204 F.3d at 560 (court found de fendant's conduct manipulative where defendant repeatedly requested to replace his appointed c ounsel w i th another public defender, because his atto rney would not present certain impermissible arguments, and it was clear his request to appear pro se was merely "a manipulative

effort .

. . to assert the defenses himself"). The only instan ce of manipulation the circuit judge cited was the disparate testimony from Samuel and Grant regarding their relationship. However, ev en if Samuel's testimony was mi sleading, this Court

indicated in Barnes that a defendant's improper motive or unethical conduct is not enough to preclude him from exercising his right to self-repres entation. See Barnes

, 413 S.C. at 3 n.1, 774 S.E.2d at 455 n.1. Therefore, we find S amuel made a knowing, intelligent, and voluntary request to proceed pro se as required by Faretta , and he

5 The Respondent suggests that our statement in Barnes may conflict with United

States v. West , 877 F.2d 281 (4th Cir. 1989). We disagree. In West , the district court

revoked the defendant's right of self-representation after the judge gave specific cautionary instructions immediatel y prior to the defendant's op ening statement, which he promptly disregarded. Id. at 285–86. The Fourth Circuit Court of Appeals affirmed stating, "By asserting his right of self-representatio n, [the defendant] assumed the responsibility of ac ting in a manner befitting an o fficer of the court." 877 F.2d at 287. However, nothing in the West opinion suggests that criminal defendants should be bound by any specific rules applicable onl y to attorneys such

that Barnes would conflict with its holding. Rather, in West the defendant blatantly disregarded the circuit judge's instructions, and it was due to his disregard for those rules that his right of self-re presentation was revoked. There fore, we see no conflict between our position in Barnes and the Fourth Circuit's holding in West

.should have been given the oppor tunity to represent himself.

CONCLUSION

For the foregoing reasons, we hold the circuit judge erred in d enying Samuel's invocation of his right to self-representation under Faretta . Accordingly, we reverse the court of appeals' opinion a nd remand to the circuit judge f or a new trial.

BEATTY, C.J. and Acting Justice J. Cordell Maddox, Jr., concur. KITTREDGE, J., concurring in a se parate opinion in which JAMES, J.,

concurs.JUSTICE KITTREDGE: I respectfully dissent. The majority holds that "the only basis upon which a circuit j udge may deny a defendant's pr e-trial motion to proceed pro se is if the court determines the defendant has not knowingly, intelligently, and voluntarily waiv ed his right to counsel." I certainly do not disagree in the abstract that an assertion of this right must be knowing, intelligent, and voluntary, and in the vast ma jority of cases, the majority' s categorical approach will result in the proper out come. But I construe the Faretta 6 framework more broadly to allow for a trial court's exercise of discretion whe re, as here, the knowingly, intelligently, and volunt arily asserted right of sel f-representation is accompanied by a circumstance th at undermines the integrity of the proceedings and the orderly administration of justice. As a result, I woul d reject the majority's categorical rule that effectivel y precludes consideration of th e trial court's exercise of discretion and places trial judges at the mercy of those who seek to exploit the right to self-representation for manipulative or disruptive ends.

In my judgment, this case illustrates the perplexing difficulti es trial courts

encounter when a defenda nt desires to proceed pro se and provides satisfactory, formulaic responses to the Faretta inquiry, yet the trial court perceives there is more at play. One of those difficulties occurs when a defendan t's request to proceed pro se is motivated by a desire to ma nipulate the proceedings. Accor ding to the experienced trial judge, that is precisely what Petition er was attempting to

do. Review of such a fact-based determination necessarily invo lves consideration

of the trial court's exercise o f discretion and recognition tha t the trial judge was in a position to hear the accused and observe his demeanor. Because I am convinced there is evidence to support the trial court's finding, I would affirm.

More broadly, my concern is that the Court's categorical rule—t hat an absolute right to procced pro se automatically follows f ormulaic responses to Faretta inquiry—will invite mischief in t he trial courts of this state while tying the hands of our trial court judges. Granted, in the vast majority of cases, requests to proceed

pro se will be regularly and properly g ranted, but trial court discre tion must always be present to address the partic ular circumstances of the case, such as where this right is asserted to serve manipul ative, disruptive, or dilator y ends. Trial court discretion ensures the integr ity of our justice system.

I.

6 Faretta v. California , 422 U.S. 806 (1975).The record in this case reveals that in addition to being charg ed with murder, Petitioner was also charged with obstruction of justice for rep eatedly giving false statements to police in which he i dentified an uninvolved perso n as the shooter; for snatching one of his written statements from an investigator's hand and ripping it up; and for lying to police when h e claimed to have thrown a gu n involved in the

murder 7 into a nearby pond—a lie that caus ed three separate law enforc ement agencies, including a dive team from Lexington County, to expen d time and resources over several days s earching the pond for a nonexisten t gun. 8

In asserting his right of self-re presentation, Petitioner expre ssed frustration with his appointed counsel because counsel refused to let Petitioner spe ak directly with the solicitor to provide what Petitione r believed to be exculpatory evidence—namely,

letters from a codefendant whic h Petitioner believed constitute d a written confession exonerating him. Pe titioner explained that counsel's request to review the letters for incriminating statements before deciding whether they should be

shared with the State was asinin e because "Why would I give you something that incriminates me[?]" Petitioner further explained his belief th at counsel's efforts to negotiate a guilty plea to a lesser included offense demonstrat ed counsel did not

believe Petitioner was innocent and this caused Petitioner to q uestion counsel's loyalty in defending him.

During a detailed Faretta inquiry, the trial court aske d Petitioner whether he had

ever studied the law. Petitione r responded that he had studied a criminal law handbook which he claimed was pr ovided to his mother by a local attorney, Carl Grant. Shortly thereafter, Petit ioner mentioned Mr. Grant agai n, explaining:

[Petitioner]: I mean, my mama, ba sically paid Mr. Grant a good bit of money. The reason why [M r. Grant] couldn't represent me is because my family—I guess his paralegal is related, you know

, in some manner. So he had decided to just go over the steps wi th me day by day. I go through th e trial, I got back to him. I t alk to

7 Despite the majority's suggesti on that Petitioner's co-defenda nt was the only "actual shooter," the record rev eals that the victim was shot w ith three separate guns and that witnesses identifie d Petitioner and two other men as being responsible for the shooting.

8 The obstruction of justice char ge was nolle prossed following Petitioner's murder

conviction.him, he'll tell me things or he won't—he's not going to be in t he

courtroom, present.

The Court: Okay. And you know h e's not representing you?

[Petitioner]: I know he's not repre senting me, but he is coachi ng me

on—

The Court: I got you, but h e's not representing you?

[Petitioner]: Oh, no, ma'am.

Following several further quest ions, the trial court appeared p oised to grant Petitioner's motion. Then, Petiti oner interrupted the trial co urt to make yet another

reference to Mr. Grant:

The Court: Okay. Well, here's what I am going to do. You're b right enough, educated enough. You're not—you don't have a drug problem, you don't have an alcohol problem. You don't have a mental health problem. You don't have a problem that I'm aware of that I can use, in all candor , to keep you from representing yourself.

[Petitioner]: Ms. Goodstein—

The Court: You're bright enough.

[Petitioner]: I'd like to say something.

The Court: You understand your charges?

[Petitioner]: Yes, ma'am. I can say something to you?

The Court: Yeah.

[Petitioner]: I know, basically , you—what you're saying is that you're putting your neck on the line by you wouldn't want me to disappoint you. That's what's b ringing me into this. My mama paying Carl Grant to come in and educate me, at the same time,just because he a lawyer, I mean , I went to school, I'm smart. I

can catch onto the common sens e—I won't put you down when we're going to trial . . . .

The Court: Here's what I'm goi ng to do. I'm going to ask Mr. Grant

to come over here.

[Petitioner]: Yes, ma'am.

The Court: Just because I want to—I just want to have a little bit of dialogue with him with you, also. . . . I want to understand a little bit about that relationship, okay.

[Petitioner]: Yes, ma'am.

The Court: So I'm going to go see if I can find him and have h im

come on over here and let's have a little b it of a dialogue, ok ay. . . . I'm inclined to allow you to represent yourself although there

have been some communications b etween you and Carl Grant, and I have to understand what they are a little more fully, okay?

[Petitioner]: Yes, ma'am.

Neither defense counsel nor Pe titioner contemporaneously objected to this procedure. After Mr. Grant arri ved, the trial court explained, "I need for our record to reflect [] the relationship , the extent of it, and going for ward for trial, what, if any, contact at all [Pe titioner] can anticipate because I think he needs to know

that —if you'll share with us." (emphasis added). In other words, the trial court's express purpose for asking Mr. Gr ant to appear and answer quest ions on the record was to establish that Petitioner's choice about whether to repr esent himself was "made with eyes open," Faretta , 422 U.S. at 835, specifica lly with regard to what coaching or assistance, if any, P etitioner could expect Mr. Gra nt to provide him throughout the trial.

Mr. Grant informed the trial cou rt that he had not been retaine d by Petitioner or

Petitioner's mother and that he had not provided Petitioner any assistance whatsoever. Mr. Grant had quoted a retainer to fee to Petition er's mother but never

heard from Petitioner's mother a gain. Mr. Grant also stated th at he would not provide any form of assistance to Petitioner during the trial. In short, Mr. Grant'stestimony refuted Petitioner's stat ements to the trial court.

Thereafter, the trial court conf irmed that Petitioner understoo d that Mr. Grant would not be providing him any fo rm of assistance during trial:

The Court: [Petitioner], do you h ave any questions of Mr. Gran t that you want to ask him?

[Petitioner]: No, ma'am. But I will tell Mr. Grant . . . than k you for your information you provided me. I thank you for your advice and everything and I appreciate you addressing that to Ms.

Goodstein.

. . .

The Court: And do you know wha t—tell me what advice and information you are speaking of specifically?

[Petitioner]: Everything he said.

The Court: You're tal king about today?

[Petitioner]: I'm just saying in general. Everything he said makes a

whole lot of sense.

The Court: Okay . . . . Do you understand though that his—do you understand what the extent of his relationship has been?

[Petitioner]: Yes, ma'am.

The Court: Okay. And that going forward that you cannot count on him being there?

[Petitioner]: Yes, ma'am.

The Court: Very well.

. . .Mr. Grant: May I be di smissed, Your Honor[?]

The Court: Indeed, sir.

Mr. Grant: Thank you, Judge.

The Court: Thank you, kindly.

Mr. Grant: All right. See y'all.

The Court: All right.

[Petitioner]: Ms. Goodstein?

The Court: Yes? Yes, sir?

[Petitioner]: All right. What I was trying to say before Mr. Grant

came . . . before Mr. Grant came, when he was talking to me and talking to my mother, the reas on why he indicated he said what he

said was because one of his paralegals is kin to me or somethin g. That's why he could never take t he case. But I'm sorry for hav ing to go through that, but he alrea dy told my mother ahead of time that he had been through that in the previous past. So his rea sons for not coming out and indicating the same is because his reputation was on the line . . . . [H]e already had told me an d

stated if it came down to him com ing in front of a judge in fro nt of the attorneys he was going to state that. I know if it was somebody I was trying to do—handli ng some business for and be

nice to them I would understand then because if my family member was kin to somebody else, I would do the same.

Following a short recess, the t rial court made its ruling:

The Court: I am ready to rule a nd I want to put on the record why I am making the determination that I am making in this case. Now

, first of all, here's what occu rred this morning. . . . You wen t through [a] colloquy. You told m e your educational background, which I think is very strong. I think you're very bright, I th ink you're very articulate, extremely articulate. Then we began to talkabout the rules and your knowledge of the rules, and I think it was at that point you informed me th at your mother had provided you

with the rule book and that the title had been given to her by Carl Grant. And that you had been studying—

[Petitioner]: Yes, ma'am.

The Court: —the rules then you went on to tell me that Carl Gra nt had been coaching you, had been co aching you with regards to the process and that—that you believe that he would, likewise, be coaching you with regards to the process of a trial, throughout the

trial.

[Petitioner]: Yes, ma'am.

The Court: I then, out of con cern that whether Carl Grant had undertaken representation of you and whether or not he would be acting as stand-by counsel in some form or fashion if you were to be []representing yourself. Tha t is why I had him come in here

.

[Petitioner]: Yes, ma'am.

The Court: He has testified. W hat he has said is he did not p rovide the title and that he has not coached you, that he has not had any conversations with you with regar ds to the processes and that h e has not led you to believe that he would, likewise be doing so throughout the trial. Now,—

[Petitioner]: Ms. Goodstein , can I say something?

The Court: No, sir. I'm ruling. It's my turn to speak.

[Petitioner]: Okay.

The Court: Now, I have listened to you, I have listened to Car l Grant. I want you to understand I do not believe what you tell me abou t your relationship with Mr. Grant in terms of his having coached you and his willingness to coach you during th e course of the t rial. I simply do not believe that. I h ave to make a determination[, ] andI do not believe what you are telling me is accurate. That brings

me to one of our rules . . . . One of the elements that the Co urt has to consider is whether or not the defendant is attempting to de lay or manipulate the proceedings. I do not believe that you are t rying to delay the proceedings. I am concerned that the proceedings are being manipulated

.

. . . [Y]ou're not allowed to attempt to manipulate the court i n your attempts in representation and . . . I believe that there is au thority for me to disallow your self-repr esentation . . . . Unfortunat ely, it has been demonstrated to [m]e b etween this morning and this afternoon that you lack candor with the court. On that basis a nd the basis of the case law that I have already mentioned[,] I ca nnot allow you to self-represent. I must have counsel to represent you.

[Petitioner]: Ms. Goodstein?

The Court: Yes.

[Petitioner]: I ain't never said I want [counsel] to leave. I mean, they can be aside and stay by my sid e. I respect that, but when Car l Grant came in here and told you before this situation occurred that about his name being mentioned by his paralega ls, he don't want his reputation ruined. That's why Mr. Grant came and did—

The Court: I understand that. I don't believe you, because th at's not what lawyers do. He simply woul d have a conflict and not be ab le to represent you. I don’t be lieve you that he would be representing you and saying if it gets out[,] it will ruin my reputation. I find that very difficult to believe.

[Petitioner]: Due to the fact t hat Denise Hamilton is one of h is paralegals—

The Court: I hear wh at you are saying.

[Petitioner]: —she's kin to me.

The Court: I hear what you are saying and I have ruled. There 'sanother rule that says you don' t argue with the court once it h as ruled.

(emphasis added).

During both direct and cross-examination at trial, Petitioner was argumentative and nonresponsive, and he was admonished by the trial court numerou s times. Ultimately, the jury returned a guilty verdic t, and Petitioner was sentenced to prison.

II.

A.

I begin my discussion by acknowle dging the obvious—an accused h as the right to procced pro se . But no right is absolute. 9 Trial courts must have the authority to control the proceedings and to e nsure orderly administration of justice. Courts are citadels of justice, and it is t he trial judge who is charged w ith ensuring the integrity of the proceeding and protecting against the proceedi ng becoming

infected with abusive and mani pulative conduct. As the United States Supreme Court has explained:

[O]ur courts, palladiums of lib erty as they are, cannot be trea ted disrespectfully with impunity. . . . It would degrade our coun try and our judicial system to permit our courts to be bullied, insulte d, and

humiliated and their orderly progr ess thwarted and obstructed b y defendants brought before them c harged with crimes. As guardia ns of the public welfare, our state and federal judicial systems stri ve to administer equal justice to the rich and the poor, the good and the bad, the native and foreign born of every race, nationality, and rel igion. Being manned by humans, the courts are not perfect and are bound to make some errors. But, if our c ourts are to remain what the Fo unders

9 Indeed, various courts have rec ognized situations in which an assertion of the right of self-representation may properly be refused. See Indiana v. Edwards , 554

U.S. 164 (2008) (mental capacity); McKaskle v. Wiggins , 465 U.S. 168, 173 (1984) (unable or unwilling "to abide by rules of procedure and courtr oom protocol"); Savage v. Estelle , 924 F.2d 1459, 1464 (9th Cir. 1990) (substantial speech impediment); Morris v. State , 667 So. 2d 982, 987 (Fla. Dist. Ct. App. 1996) (poor physical health).intended, the citadels of justice, their proceedings cannot and must not
be infected with the sort of s currilous, abusive language and c onduct paraded before the [] tr ial judge in this case.

Illinois v. Allen , 397 U.S. 337, 346–47 (1970).

I quote Illinois v. Allen "to acknowledge that constitutional rights must be asserted

and exercised in a manner not i nconsistent with the trial judge 's control over the orderly administration of j ustice in [her] court." Blankenship v. State , 673 S.W.2d 578, 589 (Tx. App. 1984). Indeed, it is well-established that trial judges must strike "an appropriate balance bet ween the questioned individua l constitutional right and the necessity for order ly procedure in the courts of the land." Id . "A court should, of course, vigilan tly protect a defendant's const itutional rights, but it was never intended that any of these rights be used as a ploy t o frustrate the orderly procedures of a court in the a dministration of justice." United States v. Lawrence

, 605 F.2d 1321, 1325 (4th Cir. 1979).

"Due to the very nature of the court as an institution, it must and does have an inherent power to impose order , respect, decorum, silence, and compliance with

lawful mandates." United States v. Shaffer Equip. Co ., 11 F.3d 450, 461 (4th Cir. 1993). A trial court's inherent duty to preserve the integrity of the judicial process must be unwavering, and where a trial court believes a defendan t asserts the right of self-representation for a ma nipulative purpose, "[i]t is not the accused's ignorance of the law which is cr itical, but rather his apparent willingness to be

untruthful with the trial court to effect his own designs, whic h [] evince[s] an intent to abuse the judicial process." Blankenship , 673 S.W.2d at 591 n.13.

The majority finds fault with the trial court citing a rule of professional responsibility, Rule 3.3, RPC, Ru le 407, SCACR. I agree that a defendant is not "bound" by the rules of professi onal conduct, but that misses t he larger point. No

one has the right to lie to the court and manipul ate the proceeding. That, I be lieve, is the point being made by the tr ial court in referencing the r ules of professional

conduct. Cf

. United States v. Stewart , 931 F. Supp. 2d 1199, 1201 (S.D. Fla. 2013) (observing that a criminal defe ndant has no right, constitution al or otherwise, to be untruthful with the court).

I am persuaded by the Fourth C ircuit's holding that a defendant asserting the right of self-representation assumes th e responsibility of acting in a manner befitting an

officer of the court. See United States v. West , 877 F.2d 281, 287 (4th Cir. 1989).Even assuming the Court is never theless correct in refusing to apply the rules of professional conduct to Petitioner, the duty of candor to the t ribunal set forth in Rule 3.3 "takes its shape from the larger object of preserving the integrity of the judicial system," and does not "displace[] the broader general duty of candor and good faith required to protect the integrity of the entire judi cial process." Shaffer Equip. Co ., 11 F.3d at 458.

[T]ampering with the administr ation of justice . . . involves f ar more than an injury to a single litigant. It is a wrong against the institutions set up to protect and safeguard the public, institutions in whi ch fraud cannot complacently be tolerated consistently with the good ord er of society. Surely it cannot be that preservation of the integrit y of the judicial process must always wait upon the diligence of litigan ts. The public welfare demands that the agencies of public justice be n ot so impotent that they must always be mute and helpless victims of deception and fraud.

Hazel-Atlas Glass Co. v. Hartford-Empire Co. , 322 U.S. 238, 246 (1944).

"[T]he right of self-representat ion, unlike the right to counse l, is not a critical aspect of a fair trial but inst ead affords protection to the de fendant's interest in personal autonomy." State v. Turner , 37 A.3d 183, 192 (Conn. 2012) (internal quotations and citation om itted). "'At bottom, the Faretta right to selfrepresentation is not absolute, and the 'government's interest in ensuring the integrity and efficiency of the tr ial at times outweighs the de fendant's interest in acting as his own lawyer.'" United States v. Bush , 404 F.3d 263, 271 (4th Cir. 2005) (quoting Frazier-El , 204 F.3d 553, 560 (4th Cir. 2000)). "'A trial court must be permitted to distinguish betwe en a manipulative effort to pr esent particular arguments and a sincere desire to dispense with the benefits of counsel.'" Id. (emphasis added) (quoting Frazier–El, 204 F.3d at 560). And where a trial judge makes a finding on the record tha t a defendant's "real intent [ i]s to exploit the right of self[-]representation to mani pulative or disruptive ends," s uch a factual finding

is entitled to deference from an appellate court. Blankenship , 673 S.W.2d at 590– 91; see United States v. Mackovich , 209 F.3d 1227, 1237–38 (10th Cir. 2000) (a finding that an accused's asser tion of the right of self-representation is manipulative in nature and thus an abuse of the judicial process is a factual finding).

Here, the trial court judged Pe titioner's credibility and found Petitioner wasuntruthful about his relationshi p with Mr. Grant in terms of ha ving received the criminal law handbook; the payme nt of a retainer on Petitioner' s behalf; and that Petitioner would be receiving ou t-of-court coaching from Mr. Gr ant during the

trial. The record also reveals that in thanking Mr. Grant, Pet itioner attempted to

insinuate Mr. Grant had been unt ruthful with the Court about as sisting Petitioner; plus, immediately after Mr. Gran t left the courtroom, Petitione r expressly claimed

Mr. Grant had lied to the trial c ourt about the purported arran gement with Petitioner. Thus, in light of the ample support the record, I believe the Court oversteps in disregarding the trial court's findings. Particul arly since "[i]n ambiguous situations created by a defendant's vacillation or manipulation, we must ascribe a 'constitutional primacy ' to the right to counsel beca use this right serves

both the individual and collec tive good, as opposed to only the individual interests served by protecting the right of self-representation.." Frazier-El , 204 F.3d at 559 (quoting United States v. Singleton, 107 F.3d 1091, 1102 (4th Cir. 1997)).

B.

As mentioned at the outset, the m ajority holds today that "the only basis upon which a circuit judge may deny a defendant's pre-trial motion t o proceed pro se is

if the court determines the defe ndant has not knowingly, intell igently, and voluntarily waived his right to counsel." This case illustrate s a defendant's attempt to "knowingly, intelligently, a nd voluntarily" lie and manipula te the proceedings. And perhaps the result today reflects the success of Petitioner 's efforts.

For example, the majority finds f ault with the trial court's co ntinuing admonition on the dangers of self-representa tion "[r]ather than concluding the Faretta colloquy." The majority further notes that "[n]evertheless, th e circuit judge continued her attempts to dissu ade" Petitioner. First, I observe the Bench Book for United States District Judges instructs "[t]he model [ Faretta ] inquiry is to be followed by a 'strong admonishme nt that the court recommends ag ainst the defendant trying to represe nt himself or herself.'" United States v. Powell , 847 F.3d 760, 774 (6th Cir. 2017) (quoting United States v. Williams , 641 F.3d 758, 767 (6th Cir. 2011)). Further, as a practical matter, it seems to me the Court is placing our trial court judges in a catch-22. On the one hand, it will be contended that a full warning on the dangers of self-representation is an encroachment of the right of self-representation, jus t as the Court today implies; conversely, a lesser warning will be portrayed as inad equate. Crimina l court judges are regularly confronting and navigating this very minefield. "[T]he right t o counsel and its counterpart the right to proceed pro se put the trial court in a difficult position."Hsu v. United States , 392 A.2d 972, 983 (D.C. 1978). "If a defendant asks for self

representation, the court risks reversal for denying the reques t or granting it." Id

. (internal citations omitted).

The majority finds support for its reversal in "the circuit jud ge repeatedly not[ing] how intelligent and articulate she found [Petitioner] to be." I fail to see how Petitioner's intelligence provides a helping hand in reversing the trial court. I view Petitioner's intelligence as bolst ering the trial court's findi ng of manipulation. In any event, Petitioner's intelligen ce in no manner demonstrates an abuse of discretion in the finding of manipulation.

I also strongly reject the major ity's take on the trial court's consideration of attorney Grant's testimony. The majority approaches the issue as follows: "[Petitioner] contends the circu it judge impermissibly exceeded the scope of the

Faretta inquiry by considering Grant' s testimony to conclude [Petition er] was attempting to manipulate the proceedings, thereby precluding hi m from proceeding

pro se . We agree." The majority makes this finding in the face of P etitioner's acknowledgement that the trial c ourt had the authority to summo n Grant. Rather

than criticize the trial court judge, I commend her. Petitione r's testimony gave the trial court judge concern, and sh e should be commended for want ing to have Grant, a local attorney, confir m Petitioner's testimony. See Faretta , 422 U.S. at 852 (Blackmun, J., dissen ting) (observing " the right to assistance of counsel and the right to self-representation are mutually exclusive"); Hsu , 392 A.2d at 983 ("The only way to avoid the risk [of i mproperly denying one of these mutually exclusive rights], therefore, is for the trial court to conduct a searching inquiry into 'the particular facts and circumstan ces surrounding that case, including the background, experience, and conduct of the acc used.'" (emphasis added) (quo ting Johnson v.

Zerbst , 304 U.S. 458, 464 (1938))).

Further, the majority incorrectly identifies this inquiry as re lating only to the issue of "[Petitioner's] com petence to represent himself," which acco rding to the majority, "is entirely irrelevant to the issue of whether he ef fectively invoked his right of self-representation." T o the contrary, the requiremen t for a decision to proceed pro se to be knowing and voluntary "ens ures the defendant 'actually does understand the significance and consequences of a particular de cision and [that] the

decision is uncoerced.'" Edwards v. Com. , 644 S.E.2d 396, 402 (Va. Ct. App. 2007) (quoting Godinez v. Moran, 509 U.S. 389, 401 n.12 (1993)). Indeed, this line of questioning by the trial court was wholly relevant and quite necessary to prevent Petitioner "from taking advantage of and manipulating t he mutualexclusivity of the rights to c ounsel and self-representation," Frazier-El , 204 F.3d at 559, by later arguing his convict ion should be reversed because his request to proceed pro se was unknowing and involuntary as it was premised upon

Petitioner's belief that Mr. Grant would be providing him out-o f-court assistance during his trial.

The majority's retort that the judge's "questioning of Grant sh ould have been limited to discerning whether [Pe titioner's] request was knowin gly and voluntarily made" completely misses the ma rk, for no one has ever argued th at Grant's testimony was primarily driven by his ability to assist the tri al court in the narrow issue of a voluntary waiver. G rant never met with Petitioner. This relates to my view, made at the outset of this opinion, that the Faretta framework is more than formulaic responses to questioning; I do not view Faretta in isolation or as an obstacle to a trial court's duty to ensure the integrity of the proceedings. See People v. Lewis , 140 P.3d 775, 803 (Cal. 2006) (obs erving criminal defendants sometimes assert the right of self-representation for the purpo se of "plant[ing] reversible error in the record).

At this point in the proceeding, the able trial judge made it c lear she was poised to grant Petitioner's request, but h er concern led her to summon G rant. I view the trial court's handling of the situ ation as a quintessential exa mple of an appropriate exercise of discretion, as she took a reasonable and measured s tep to protect a defendant's right of self-repres entation while also ensuring th e integrity of the proceeding. Grant's testimony fl atly contradicted Petitioner's . Grant met with Petitioner's mother, not Petitione r. The trial court determine d Petitioner had lied in an effort to manipulate the proc eedings, and this quite naturally led the trial court's ruling to deny Petitioner's request to proceed pro se

.

The trial court's finding of mani pulation is a factual determin ation that rests with the trial court, not this Court . Our standard of review on a t rial court's factual finding is abuse of discretion, not de novo. The Court referen ces "review[ing] a circuit judge's finding of histo rical fact for clear error," but ignores that deferential

standard of review when the Cou rt engages in its own fact-finding by noting "we discern no attempt by [Petitioner] to disrupt or manipulate the process here." To the contrary, Petitioner's comp lete lack of candor with the tri al judge, his lies, and

his distortions were a clear indi cation to the trial judge that a self-represented

Petitioner would continue to be a disruptive force during the t rial of the case. Sucha conclusion is inescapably sup ported by facts in the record. 10

The majority goes even further a nd states that a defendant's manipulation is "not enough" to deny a request to proceed pro se . The Court's support for this finding

comes from a footnote in State v. Barnes , 413 S.C. 1, 774 S.E.2d 454 (2015), in

which the Barnes majority responded to a statement by the Barnes dissent. Specifically, the Barnes majority's footnote observed there was no basis to deny a defendant's request for counsel s imply because he had previousl y asserted (and obtained reversal of his conviction based on a violation of) hi s right to selfrepresentation. Id . at 2 n.1, 774 S.E.2d at 455 n.1 . The Court rejected the noti on that "the erroneous denial of a defendant's sixth amendment rig ht to selfrepresentation at the first pro ceeding results in that defendan t having a diminished sixth amendment right in a second trial." Id . at 7, 774 S.E.2d at 457. Here, we are not dealing with a request for counsel or multiple trials, so Barnes is procedurally and substantively inapposite. Further, in Barnes , the issue of manipulation by the defendant was introduced by the dissenting opinion of this Cour t; there was no factual finding of manipulative intent made by the trial court, as is the case here. In short, the Court simply disregards the applicable standard o f review.

I wish to comment on what I belie ve is the majority's progression in its analysis

that transforms the actual issu e presented and reframes it to s uit the majority's preference. I view this case as a n appellate court reviewing a trial judge's effort to

10 The majority opinion claims it does "not strip trial judges o f their authority and

discretion to maintain the inte grity of the proceedings before them." In my judgment, the Court's holding doe s just that—it strips trial ju dges of authority and discretion to fully vet a def endant's motion to proceed pro se and instead mandates the trial court accept at face va lue whatever a defendant says. The majority opinion further assures that trial courts have "recourse" to pr event mischief or disruptive behavior. The majority's reasoning is premised on t he notion that the

trial court's concern with Pe titioner's manipulation of the proceedings was speculative, which is a false pr emise. This reasoning ignores the reality that mischief and manipulative behavior had already occurred. The testimony of Mr. Grant (to which Petitioner has never objected) decisively debun ked every statement Petitioner made about their purported relationship. Under these circumstances, the trial judge had the discretion (and "recours e") to nip in the bud

Petitioner's effort to mani pulate the proceedings.protect a defendant's right to proceed pro se in a manner consistent with a trial judge's authority to ensure the integrity and orderly administr ation of justice in her court. Because there is clearly evidence to support the trial judge's finding of manipulation, I would affirm. C onversely, the majority maintai ns its narrow and categorical Faretta approach and then cautions trial courts from overstepping in warning of the dangers of sel f-representation. Trial judges, w e are told, must safeguard a defendant's "right to represent himself and the almost sure disaster that

will result from his self-repres entation." No one contends oth erwise 11 but that misses the point of this case an d appeal. The trial judge was not seeking to protect

Petitioner from himself; she was s eeking to protect the justice system from manipulation.

Trial court judges have become a ccustomed navigating the effort s of some defendants to game the system. It is the trial judge who must ensure the integrity of the court and the proceedings . That is accomplished by the trial court's exercise

of discretion. That discretiona ry authority is essential to th e proper functioning of the justice system, but courtesy of today's opinion, that discretion has been

removed. What is the result of today's opinion—trial court pro ceedings are now "at the mercy of those who seek t o disrupt the very process des igned to protect

them." Blankenship

, 673 S.E.2d at 591 (Clinton, J., concurring).

I dissent.

JAMES, J., concurs.

11 In his dissenting opinion in Faretta , Justice Blackmun observed, "If there is any truth to the old proverb that 'o ne who is his own lawyer has a fool for a client,' the Court by its opinion t oday now bestows a constitutional right o n one to make a fool

of himself." Id . at 852.