### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON Assigned on

Briefs J anuary

7, 2003 STATE OF TENN ESSEE v. HENRY D ANIELS Direct Appeal from the Criminal Court for Shelby County Nos. 00-05606, 07 Joseph B. Dailey, Judge

No. W2002-00193-CCA-R3-CD - Filed June 6, 2003

The defendant was conv icte d by a Shelby County Criminal Court jury of aggravated bur

glary , a Class C felony, and ag grava ted rape , a Class A

felony . He was s entence d by the trial court as a career offende r to fifteen ye ars for the aggra vated burglary

conviction and as a v

iolent off ender to forty years f or the aggravate d rape conviction, withthe sentences to be served consecutively , for an effectivesentence of fifty-five years in the D epartment of Correction. On appea l, he rai ses the so le issue of whether the trial cou rt committe d rever sible err or by deny ing his r equest to repre sent himse

lf at trial. Following our

review, we affirm the judgments of the tria l court but remand for entry of a corr ec ted judgment as to the aggra vated burglary

conviction to reflect the defendant’s conviction offense which wa s omitted f

rom the jud

gment f orm. Tenn. R. App.P. 3 Appe al as of Right ; Judgme nts of the Cr

iminal Co

urt Affirm

ed and Remande

d for Entry of a Corre cted Judgm ent A LAN E. G LENN , J., deliver ed the opinion of the

court, in which J OE G. R ILEY and J OHN E VERE TT W ILLI AMS , JJ., joined. A C Wharton, Jr ., Shelby

County Public Defender; Garland Ergüden, Assistant Public Defender (on appeal); and Mary K

atherine Kent, Assistant Public Defender (at trial), fo r the appellant, Henry Daniels. P aul G. Summers, Attorney Gene ral and Reporter; J. Ross Dyer, Assistant Attorney Gene ral ; William L. Gibbons, District Attorney General; an d Jenn if er S. Ni ch ol s a nd Ka tr in a U . E ar le y, Assistant District Attorneys Gener al, for the appellee, State of Tennessee. OPINION FACTS On May 23, 2000, the Shelby County Grand Jury

re turned two indictments against the defenda nt, Henry Da

niels, charginghim with aggravated burglary and aggravated r

ape based on a-2-

June 6, 1999, incident th at occur red at a Memphis ho me share d by the rape victim, Marzetta

Earnest , her two young c

hildren, and her

terminally ill, bedridden fathe r. On November 5, 2001, the day the defendant’s trial wa s schedul ed to begin, the defendant announc ed to the t

rial cou rt that he w as dissatisfied with the representation provided by his court-appointed public de fender and wished

to either repres ent himself or be given time t o retain differe nt counse l. The tri al c ourt ref

use d his request, stating that the defendant had ample opportunity in the interva

l since hisJune 1999 a

rrest to retain another attorney

if he wished and that

his reque st to repr

esent hims elf

had not be en timely made. Thereafter, the trial court excused the jury panel based on a report of contact having occurred betweensome witne sses and v enire me mbers, and orde

red that a new pa nel be br ought in for trial the next morning. The defendant’s trial, at which he was repre sented by the public def ende r, began t

he following day, on Novembe r 6, 2001, and

concluded on November 8, 2001, with the jury finding him guilty of both offenses. The State’s proof included the following: the victim’s testimony that the defenda nt, whomshe knew as t

he older brother of her child’s fa

ther, ac costed he

r at knife point in the hallway of he

r homeat approximately 3:00 a.m. on June 6, 1999, threatened to kill her, held the knife to her throat, raped her in an empty bedroom of the home, and then telep honed her after h is departure but before the arrival of the pol ice to threaten her again; evidenc e that the kitchen window in the victim’s home had been broken out and a wooden box pushed against the wall underneath the window on the outside of the house; the defendant’s birth certificate, pe rsonal phone books, and a bill a ddressed to the defendant’s girlfriend found on the f loor of the bedroom in which the rape occurred after the defendant’s dep arture from the home; evidence that the victim’s caller identification box had recorded a telephone call from the reside nce of the d efendant’s girlfriend, where police officers subsequently located and arrested the defenda nt that same morning; and DNA evidence that

the defendant’s sperm cells were pre sent on a vaginal swab taken from the victim the day of the r

ape. The defendant’s proof consisted of his testimony that he andthe victim, who had been having an affair, ha

d engaged in consensual interc ourse on the morning of June 6, 1999. He said the victim

had bec ome ang

ry , throwing

an objec t at him

and breaking the kitchen window, when he told her he loved he

r and expr

essed his desire to

publicize t

he affa ir to his girlfriend and to the victim’s boy friend. The defendant also claimed that his statement to police, in which he denied h aving had any sexual contact with the victim or having been at her home on June 6, 1999, w a s fabricated by

the police officer who took the statement. ANALYSIS The defendant contends the trial court committed re versible

error b y de

nying him his constitutional right to self-representation, arg uing that his request to proceed pro se , made before the impaneling of the jury, wa s timely. The State re sponds by

arguin g that the trial c ourt cor rectly found that the defendant’s request was untimely in light of t he circ ums tances, in which the defendant’s request was not made until the eve of trial after nea rly two y ears had elapsed

since his indictmen

t. The United States and Tennessee Constitutions grant criminal defendants the right to the assistance of counsel, or

alternatively, to re

present themselves. See U.S. Const. amend. VI; Tenn.-3-

Const. art. I , § 9; see also State v. Sma ll , 988 S.W.2d 671, 673 (Tenn. 1999). However, three require ments must be met

before a trial c ourt will a

ll ow a d efendant to proceed pro se . State v. Herrod , 754 S.W.2d 627, 629 (Tenn. Crim. A pp. 1 988). Fi rst, the d efenda nt must make

a timely assertion of the right of self-representa tion. Id. Second, t

he defe ndant’s r equest to proceed pro se must be clear and unequivocal. Id. at 630. F inally , the def

endant mu st

knowing ly a

nd intellig ently waive the right to the assistance of counsel. Id. Our review of the record leads us to conclude that the defenda nt notonly

failed to assert h is right to self-r eprese ntation in a

timely manner, but also f

ailed to clearly a nd unequivo cally

express that his request was to proceed pro se , rather than to have a different counse l of his choosing retained or appointed to represent him. When the defendant announced he wished to represent himself, the trial cou rt questio ned him asfollows: THE COURT: Mr. Daniels, stand up, s ir. When di d yo u come to t

his conclusion that you wanted to r epresent y ourself? MR. DANIEL S: Today, Your Honor. THE COURT: In all these many cases that you ha

ve been convicted of in the past, did you ever represent y ourself in any of those? MR. DANIEL S: No, sir. THE COURT : How far

did y ou go in s chool? MR. DANIEL S: I graduated. THE COURT : From la

w school? MR. DANIEL S: No, sir. THE COURT: From college? MR. DANIEL S: High school. Hamilton High. THE COURT: Hamilton High School but not from college and not from law school. MR. DANIEL S: (No audible response.) THE COUR T: Al l r ig ht . W el l, I’m no t g oi ng to al lo w yo u t o represent you rself be cause th

is is trial date on a case that’s been pending for a couple of years. Actually , the time of the alleged-4- offense is in June of

‘99. You’ve been in custody since June of ‘99. The mat ter was indicted in May of 2000. It’s now November o f 2001, trial date after many , many rese t[t]ings. And just

today y ou announced that y ou want to represent y ourself. The charges are extremely serious charges – an A Felony and a C Felony – and you obvious ly w ould not h ave tim e to adeq uately p repareto represent y ourself. It’s something that requires a tremendous amount

of preparation. And while the constitution does allow individual s, under certain circumstances, to repre sent themselve s, this is not one of those circumstances because it’s been brought to my attention wa y too late. The trial court informed the defendant that numerous motions and hearings had already been heard in the ca se , the trial had been reset several times, and that eve ryone wa s ready f

or trial. The court stated that it was not going to allow another continuance, that it would be impossible for the defendant to adequately pr

epare for trial, and that the trial would therefor e start th e next morning withdefense counselrepres enting t he defe ndant. Th

e defendant prot

ested, c omplaining

to the trial court about defense counsel’s representa tion and reminding the court that he had filed a motion to have counsel removed from his case. The defenda

nt asser ts in his brief

that the tr

ial cour t, in deny ing his request to proceed pro se , made the erroneous supposition that his real agenda was to hire a new lawyer and delay ma

tters by a lengthy continuance. The defendant’s statements in the lengthy colloquy that followed the trial court’s initial ruling, however, supports just such an inference :

MR. DANI

ELS: I understan d what you’re

saying, sir. B ut you’re saying that I’ve got to let her

be my attorney . That’s what you’ re saying. THE COURT: That’s what I’m say ing. MR. DANIEL S: I don’t have no other choice. THE COURT: No, sir. MR. DA NIE LS : I a in ’t go t n o c ho ic e, mys el f, to tr y to get m e another attorney or w

hatever I wa

nt to do? She’s got to be m y att or ne y. She’s got to be the one to go to trial with. Th at’s exac tl y wh at y ou’ re sa y ing ? THE COURT: That’s what I’m say ing. Because – and I ’ll state for th e record, so that in the event y ou’re convicted the record is clear :-5- The law allows y

ou to hire you r own atto

rney if you and y our famil

y can and want

to. And thiscase has been pending in here – Your fir st date in here was June the 13 th of the yea r 2000 – almost a year

and a half ago. And it’s bee

n reset ma

ny t ime s since then for a variety of different reasons – motions, hearings, this is the third trial s etting we’ve ha d. An d s o yo u c ou ld ha ve ce rt ai nl y h ired a la wy er to represent you if y ou’d bee

n able to, or the law even allows for you to rep resent yourself but not to come in on trial date , and a c ase that ’ s two and a half y ears oldand say, “O kay, I want to represent my self,” because I don ’t think y

ou will hav e had time

to full y and pro perly prepareyour case

for trial and present it to the jury – to come i n here today a nd say , “Well, I’ve decided today that I want to represe

nt myself.” So you ’re [sic] o nly

– Your situation now is, “Y es, [defe nse counsel] will be your lawy er. MR. DANI

ELS: T here’snothing e

lse I can do a bout it? THE COURT: No, sir.

. . . . MR. DANIEL S: And I

don’t have nothing to say about that. I got no time to hire me a lawy er or nothing. She don’t adequa tely represent me. I al re ad y h ave put mo tions ag ainst her , and I don’t wa nt her to be my attorney

because she’s confusing me. THE COUR T: I understand. No, no time to hire a lawy er becaus e you’ve had time to hire a lawy er. . . . You can’t come in here, on trial date, an d s ay, “I w an t t o r es et ev er yth in g. I wa nt ev er ybo dy to p ut everything

on hold for ei ght mo nths whil e I go hire a lawy er and get him in here and

we try it eig

ht months from now.” That’s not going to happen. MR. DANIEL S: I ain’t said that, Your Honor. THE C OURT: Th at’s what – that’s the practical effect, though, of my granting y our requ est to hav e time tohire a lawye r. That’s what would have to happen. And that’s not going to happen.

. . . .-6- [Defense counsel] is an outstanding lawye r. The fact that y ou filed a complaint against her doesn’t mean that she should be relieved; doesn’t mean that we have to reset everything

because if that were the case, then the defendant could wait until the day before trial, file– put a com

plain t again st the lawyer a nd get a resetting every time, and it

would never go to trial. . . . We’d never get a case trie d. Thus, the rec ord clea

rly shows tha

t the def endant’ s emphasi s was upon his dis satisfaction withhis appointed counsel and his desire to have a differen t att orney appointe d or reta

ined in his case. However, the defendant’s right to counsel does not include the right to appointed counsel of his choice, see Statev. Carruthers , 35 S.W.3d 516, 546 (Tenn. 2000), and, as the trial court pointed out, he had a

mple time b etw e en his June 6 , 1999, ar rest and the Nove mber 5, 20 01, trial d ate to retain anot her a ttorney if he so de sire d and

coul d aff ord o ne. We

do note that our

federal courts have recognized

that a defendant’s right to self-repre sentation is generally unqualified if made prior to the jury being empaneled; however, this assumes the absence of any

attempt to

delay the proc eeding s. See United States v. Young , 287 F.3d 1352, 1353 (11th Cir.) (summarizing severalfederal cases), cert. denied U.S. , 123 S. Ct. 581, 154 L. Ed. 2d 44 7 (2002). Here, due to the defendant’s equivocal request , we are

unable to conclude that

the pro se defendant was prepared to move for ward withhis trial sch eduled the next day. Theref ore, because the defendant’s a ssertion of his right of self-representation

was not unequivoca

lly e xpressed, and bec ause he w aited unt il trial da te to reque st that he be all owed to r

etain counsel of his cho osing, w e conclu de that the trial c ourt did no t err in denying his request to dismiss his defense counsel and retain new counsel or proc eed pro se . CONCLUSION Based on the foreg oing au

thoritiesand rea soning, we affi rm the judg

ments of the tri al court , butremand for entry

of a corrected judgment as to the conviction for aggrava

ted burglary

to reflect the defendant’s conviction offense which wa s omitted.

___________________________________ ALAN E. GL

ENN, JUDGE