Supreme Court

No. 2013-281-C.A.

(P3/12-3306A)

State :

v. :

Ana M. Cruz. :

NOTICE: This opinion is subject to formal revision before 

publication in the Rhode Island Reporter. Readers are requested to 

notify the Opinion Analyst, Supreme Court of Rhode Island, 250 

Benefit Street, Providence, Rhode Island 02903, at Telephone 222-

3258 of any typographical or other formal errors in order that 

corrections may be made before the opinion is published.
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Supreme Court

No. 2013-281-C.A.

(P3/12-3306A)

State :

v. :

Ana M. Cruz. :

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ. 

O P I N I O N

Chief Justice Suttell, for the Court. The defendant, Ana M. Cruz, appeals from a

Superior Court judgment of conviction, having been found guilty on two counts: (1) resisting 

arrest in violation of G.L. 1956 § 12-7-10; and (2) disorderly conduct in violation of G.L. 1956 

§ 11-45-1. On appeal, the defendant argues that her right to counsel, guaranteed by the Sixth 

Amendment to the United States Constitution and article 1, section 10 of the Rhode Island 

Constitution, was violated when the trial justice allowed her to represent herself at trial without 

first determining whether she had made a knowing and intelligent waiver of her right to counsel. 

This case came before the Supreme Court pursuant to an order directing the parties to appear and 

show cause why the issues raised in this appeal should not be summarily decided. After 

considering the parties’ written and oral submissions and reviewing the record, we conclude that 

cause has not been shown and that this case may be decided without further briefing or 

argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior 

Court. 
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I

Facts and Procedural History

On July 7, 2012, police officer Jared Hardy of the Cranston police department received a 

dispatch call regarding a “report of a one-year-old walking around nude in the street” near 57 

Lakeside Drive. Because that area in Cranston was part of Officer Hardy’s “beat,” he drove

there immediately in order to respond to the call. Officer Hardy arrived, ninety seconds later, at 

57 Lakeside Drive in his patrol car and dressed in his police uniform. After scanning the area for 

children, he did not find a nude child in front of that address. Therefore, he approached the 

residence at 57 Lakeside Drive and unsuccessfully tried to “raise the resident.” He testified that 

he rang the doorbell, as well as knocked several times. Officer Hardy testified that he heard 

“children’s voices coming from the backyard,” which led him to go around to the back, because

“that[] [was] the nature of the call.” Next, he entered the backyard; he testified that he did not 

have to pass through a fence or gate to do so. 

Once in the backyard, Officer Hardy testified, he saw two young males, approximately

five and three years of age. Further, he described, “[t]he three-year-old was wearing a T-shirt, 

underwear, no pants and he was playing around in a patio that had several pieces of broken glass 

spread about it.” Officer Hardy testified that the backyard was on a steep hill, which led directly 

down to a lake without anything besides “a lightly wooded area” obstructing access to the water. 

He stated that these children were not being supervised at the time in the backyard. At trial, 

defendant’s daughter, Esmerelda Morontoro, testified that she was in the upstairs window at the 

time throwing a toy parachute down to the children while they were playing in the backyard. 

While still in the backyard, the officer questioned the children about the present location of their 

parents. In response, the smaller child indicated that his mother was inside and offered to bring 
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the officer to her. Officer Hardy testified that “[t]here [wa]s a three-year-old I don’t think should 

be unsupervised especially around a lake, pantless and barefoot in a glassy area. I think it was a 

dereliction of my duty if I walked away from that three-year-old with no adult supervision.” 

Consequently, the officer followed the two children into the home to find the boy’s mother. 

After walking through a playroom and kitchen, he entered a living room where he came 

upon four women in conversation. Officer Hardy testified that defendant was among the group

and that he asked the women which one was the mother of the scantily-clad three-year-old. At 

trial, defendant testified that she was cleaning up the living room when the officer entered her 

home and she asked, “could I help you?” Because Officer Hardy entered the home to find the 

smaller child’s mother, he continued to pursue that line of questioning with the women. At trial, 

the officer testified that he believed one of the women, Crystal Bretton, was the smaller child’s 

mother based upon his observations of the child pointing to her and her ensuing nervous 

demeanor. According to defendant’s testimony, Bretton was upstairs when the officer entered; 

shortly after she came downstairs, Officer Hardy said that he was going to call the Department of 

Children, Youth and Families (DCYF). Officer Hardy, however, repeatedly denied that he ever 

made any call or reference to DCYF. 

Officer Hardy testified that defendant was “getting between me and [Bretton] and 

beginning to raise her voice.” Furthermore, he testified that defendant was “pointing her finger 

in my face. Everything she sa[id] [wa]s in an aggressive manner, you don’t have a right to be 

talking to my daughter,[1] you don’t have the right to be in here.” Officer Hardy testified that 

defendant had put her hands on him “several times,” including pushing his hand down as he tried 

to write. As this behavior continued, tensions escalated among the parties. Abruptly, Bretton

 1 The defendant stated to the trial justice that Bretton was her daughter. 
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ran from the house and Officer Hardy pursued her. This swift departure prompted defendant to 

go out into the street where, according to the officer, she yelled, “you don’t have the right to ask 

her any questions, don’t tell him anything.” While defendant, Officer Hardy, and Bretton were

outside, the melee intensified; Officer Hardy testified that defendant grabbed Bretton and told 

her to run to the house, then the officer grabbed Bretton and felt defendant “jump onto [his] 

back.”2 Officer Hardy explained that he used his shoulder radio to call for backup, saying

“they’re fighting with me.” He further testified that this trio then re-entered the house with 

defendant still on his back. Soon after other police officers arrived, Officer Hardy was finally 

able to handcuff and arrest defendant when he “pushed [defendant] into a bedroom and pushed 

her facedown on the bed.” After the arrest, the officer escorted defendant outside and placed her 

in a police cruiser. Subsequently, Bretton was also apprehended and arrested. 

Following the chaotic events at her home, defendant was charged with: (1) assault and 

battery in violation of G.L. 1956 § 11-5-3; (2) resisting arrest in violation of § 12-7-10; and (3) 

disorderly conduct in violation of § 11-45-1. After a District Court trial on November 28, 2012, 

defendant was found not guilty of assault and battery and guilty of resisting arrest and disorderly 

conduct. The defendant received a one-year guilty filing on the resisting arrest offense and 

twenty hours of community service on the disorderly conduct offense. The defendant appealed 

her conviction to the Superior Court on November 28, 2012. A jury trial occurred in the 

Superior Court on June 11 and 13, 2013, on the counts of resisting arrest and disorderly conduct. 

 2 Following Officer Hardy’s testimony regarding these alleged actions of defendant, the trial 

justice instructed the jury that defendant was found not guilty of the charge of assault in a prior 

proceeding before a different judge. Subsequently, the trial justice in her jury instructions told 

the jurors that they should not consider any evidence of alleged facts giving rise to the assault 

charge of which defendant was previously found not guilty in District Court. 
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Waiver of Counsel

Prior to the trial, the trial justice offered defendant, who at the time was represented by 

counsel, the opportunity to accept a one-year filing, during which period defendant would 

maintain her not-guilty plea on the condition that she “keep the peace and be of good behavior.” 

The charges would then be dismissed. The defendant rejected the offer, and the trial justice 

proceeded to empanel a jury.3

 3 The trial justice engaged in a colloquy with defendant regarding her option to maintain her notguilty plea on a one-year filing rather than proceed to trial, a portion of which we quote below: 

“THE COURT: * * * If you abide by that condition of 

being peaceful and not committing any new crimes for a one-year 

period, after the year ends, everything, all these records, are 

destroyed, the case goes away completely. So that is my intention 

here because it allows you to continue to say not guilty, you get the

benefit of not having a jury find you guilty and potentially being 

sentenced more harshly than you were in the District Court. You 

don’t have to admit guilt. * * *

“THE DEFENDANT: Your Honor, the way I see things is 

no matter what it is I’m still guilty. We are in my own home and 

this officer comes into my back door. We haven’t done anything 

wrong. He comes in. * * * I’m Spanish. I have never had any 

problems. I lived there for seven years. I’m hard-working in the 

community. I do a lot of community work all my life, plus I have 

my job and I feel that my rights were violated. If I decide to take 

this deal, no matter what, they are allowed to come back into my 

house and find me guilty of anything because this is not the first 

time that a police officer comes into my home without me opening 

my door and accusing. I am not drug dealing, I am not a prostitute 

and I am not a thief. Because I’m Spanish, I’m in the wrong 

neighborhood. 

“* * *

“THE COURT: Even though I’m saying that you’re not 

guilty?

“THE DEFENDANT: Your Honor --

“THE COURT: Are you telling me that you would rather 

have a jury trial?

“THE DEFENDANT: Yes.
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Partway through jury selection, after the luncheon recess, defendant’s counsel informed 

the trial justice that defendant had told him that she wanted to represent herself at trial. The trial 

justice then engaged in a detailed discussion with defendant on the record regarding her decision 

to proceed without representation. Because defendant’s knowing and intelligent waiver of her 

right to counsel lies at the heart of this appeal, we reproduce the colloquy in its entirety: 

“THE DEFENDANT: Yes, your Honor. I believe if I don’t 

have a chance to get another lawyer, I would like to represent 

myself. 

“THE COURT: Well, the problem is we’re in the middle of 

picking a jury and you wanted a trial this morning. 

“THE DEFENDANT: Yes. 

“THE COURT: You had no trouble with your lawyer then. 

You had no trouble with your lawyer, to my knowledge, while we 

were picking the jury and I’m going to finish the trial. 

“THE DEFENDANT: The problem was when I came out 

what my lawyer has told me I feel that I could do it better myself. 

“THE COURT: So do you want to represent yourself in this 

trial?

“THE DEFENDANT: Yes. 

“THE COURT: Do you understand that you’ll be required 

to do everything at this point?

“THE DEFENDANT: Your Honor, I do not know how to 

write and read. Is that a problem? If I represent myself, would that 

be a problem?

“THE COURT: Do you know how to represent yourself?

“THE DEFENDANT: No, your Honor. 

 

“THE COURT: Okay, let’s have a trial. I understand your 

introspective. The state wants to push this case to trial. We’ll go, 

all right?”
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“THE COURT: Well, how do you intend to proceed on 

your own?

“THE DEFENDANT: What I believe is whatever they say 

and whatever I believe that it’s not. I’m going to say things how it 

really happened and I would like to have myself say exactly what 

happened and I would not hold anything back to help my own 

case. 

“THE COURT: There are, I think, three choices for you at 

this point given where we are, okay? You can have [counsel]

represent you still, you can represent yourself which means you 

have to pick the jury. You have to follow our rules in doing that. 

You have to be able to examine any witness that the state puts on 

the stand, if you wish to do that. 

“THE DEFENDANT: That’s fine, your Honor. 

“THE COURT: And alternatively, we can go back to the 

plan that I said this morning which allows you to maintain your not 

guilty plea and keep the peace and be of good behavior. 

“THE DEFENDANT: I don’t believe in that. I believe --

“THE COURT: Well, I can do it without your agreement.

“THE DEFENDANT: I haven’t done anything wrong, your 

Honor. My house has been violated more than one time and this 

has got to stop. 

“THE COURT: It would not be admitting you did anything 

wrong, just the opposite. It would be you saying I’m not guilty and 

the Court agreeing that you can maintain that belief.

“THE DEFENDANT: My problem there, your Honor, is 

the same way. If you said that I have to stay for one year, I don’t 

have to go out to look for the trouble, they came to my home. They 

could do it again. This has been going on since I moved there. 

They want me to move out. I’m a homeowner. My husband died. 

I’m not going anywhere. I’m fifty-two years old. There, this is my 

problem. If I take your plea, they could come to my house and do 

anything. I am the only Spanish one there. There was other 

Spanish people, they made them move. The people that I bought 

the house from, they always were Spanish and they move and after 

I bought the house they told me the truth why they got rid of the 

house for the same problem I’m going through right now and they 
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want me out. They’re going to come back and say anything that I 

have done, not doing anything. I cannot run away from this 

problem. I’m going to confront this problem. I have not done 

anything wrong. My kids are teachers. 

“THE COURT: I understand. 

“THE DEFENDANT: My kids are supervisors. 

“THE COURT: Listen to me, Ms. Cruz. This is why I’m 

saying that you maintain your not guilty plea. That’s why I don’t 

do that in very many cases. It would allow you to say I’m not 

guilty. Yes, it would keep you on probation for a year. You don’t 

want that?

“THE DEFENDANT: Your Honor, if I accept this, I have 

not done anything wrong. I will be on probation. Any officer could 

come back in my house and the same thing they have right now. 

Where does that leave me? Go to jail for not doing anything just 

because I bought a house in a white neighborhood? That’s the only 

wrong thing I have done, move into the wrong area, that’s all I 

have done. I have been working so many years in the community. 

Everybody loves me. I’m respectful. I’m always helping kids. 

Where does that put me? I could go to jail because they don’t want 

me to be in the neighborhood. They don’t want me there in my 

community because I’m Spanish. I have not been any trouble. I’m 

fifty-two years old. 

“THE COURT: Why do you think you would be going to 

jail?

“THE DEFENDANT: Because they invented all things. 

They came in my home, okay, and they’ve been coming before 

this. They come to my house. They come inside my house, police 

officers. I have a complaint. They have come into my home every 

time I’m in the country with not me opening my door. They have 

coffee in my driveway. What does that call? There is no control 

instead of me moving out and I’m not going to move out. I bought 

that house. I work so hard in my life to have today what I have. 

“THE COURT: Let’s go back to your options. We’re 

picking a jury. You wanted a jury. You wanted a trial. 

“THE DEFENDANT: Yes.
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“THE COURT: The only question is do you want to 

represent yourself? Do you want [counsel] to continue representing 

you?

“THE DEFENDANT: I will represent myself. 

“THE COURT: And you understand that if something goes 

wrong during you representing yourself, I may have no choice but 

to suspend that trial. It’s a difficult thing to represent yourself. I’m 

willing to let you do it. I’ve seen people do it before and do it 

successfully but you have to do that and play by the rules that 

apply in the courtroom. 

“THE DEFENDANT: I will do it, your Honor. 

“THE COURT: Do you want [counsel] to stand by so that 

if you need to talk to him, you can talk to him? If you have a 

question that you don’t know what to do, you can ask him?

“THE DEFENDANT: As long as I say what really 

happened, it’s fine, because he doesn’t want me to say exactly 

what happened. He wants me to go along with everything. I don’t 

believe in that. I believe in saying what happened. I don’t care if 

they believe me or not. 

“THE COURT: I have another suggestion, how about this: 

[counsel] continues to act as your lawyer, he helps you pick a jury, 

he makes an opening statement, if you want and he wants to, 

saying what your side of the story is. If he wants, he thinks that’s 

an advisable thing, he can do that later. He can cross examine the 

officer on your behalf and then the time will come during this trial 

where you will have to make a decision whether you want to 

testify or not, okay. You can talk to [counsel] about that and I’ll 

address both of you at that point. 

“THE DEFENDANT: That’s fine, your Honor.

“THE COURT: Does that work?

“THE DEFENDANT: (NONVERBAL RESPONSE).

“THE COURT: You sure?

“THE DEFENDANT: (NONVERBAL RESPONSE).

“THE COURT: Do you have confidence in him?
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“THE DEFENDANT: No. 

“THE COURT: Do you have enough confidence to handle 

the parts of the trial up to the point where you would testify? It’s 

your decision whether you want to take the stand or not, it’s your 

decision.

“THE DEFENDANT: I’ll do it, your Honor. 

“THE COURT: I don’t want to make you do it. You can do 

it yourself, if you want. He can be here to assist, but I’m concerned 

that if you don’t know the procedure this is going to get very 

complicated and we don’t want that to happen because that can 

cause a trial not to be fair. 

“THE DEFENDANT: I believe in God and he will be with 

me. I will do it on my own. 

“THE COURT: You’ll do everything on your own? Would 

you like [counsel] to stand by and assist you?

“THE DEFENDANT: No. 

“THE COURT: You don’t want him in the courtroom at 

all?

“THE DEFENDANT: I’m going to do it on my own. 

“THE COURT: And how are you going to pick a jury?

“THE DEFENDANT: I’ll just pick it up. It doesn’t matter.

“THE COURT: I will do my best to assist you. I can’t act 

as your lawyer, I can’t. You know that wouldn’t be fair, right? And 

you don’t want him even in the courtroom in case you have a 

question that you can’t resolve?

“THE DEFENDANT: I have God and he will lead me. 

“THE COURT: The other problem I have is that he stood 

up and told this jury that he was your lawyer. Now I have to tell 

the jury you don’t want him as your lawyer and that could hurt 

your case. 

“THE DEFENDANT: That’s okay. 
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“THE COURT: All right. You ready to go?

“THE DEFENDANT: (NONVERBAL RESPONSE).

“THE COURT: Are you sure?

“THE DEFENDANT: (NONVERBAL RESPONSE).

“THE COURT: [Counsel]?

“[COUNSEL]: Yes, Judge. 

“THE COURT: I think the defendant does not want you to 

act as her attorney anymore. 

“[COUNSEL]: That’s her desire, Judge. I mean, I can’t 

change her mind. I’m willing to sit here. If she doesn’t want me 

here, I guess you have to let me go and what I’ll do in the 

meantime while she’s doing the jury is I’ll make copies of 

everything. I don’t know what good that is going do [sic] because 

she doesn’t know how to read. I’ll give copies prior to going back 

today. That’s all I can do, Judge. I wouldn’t mind staying here 

assisting her. If she doesn’t want my assistance, I can’t make her. 

“THE COURT: Ms. Cruz, before I let [counsel] go, I need 

to be sure you don’t want him here for any reason. 

“THE DEFENDANT: I don’t, your Honor.” 

After releasing her attorney, defendant continued without representation for the duration 

of the trial. After a two-day jury trial in Superior Court, the jury found defendant guilty of both 

resisting arrest and disorderly conduct. The defendant was sentenced to five months of probation 

for each count, ordered to run concurrently.4 Subsequently, defendant filed a timely pro se

notice of appeal on July 15, 2013. On appeal, defendant is now represented by counsel. 

 4 According to defendant, she successfully completed her probation in November 2013. 
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II

Standard of Review

“With respect to a trial justice’s determination as to whether or not a criminal defendant’s 

waiver of his or her Sixth Amendment right to counsel is knowing, voluntary, and intelligent,”

this Court reviews this constitutional inquiry de novo. State v. Sampson, 24 A.3d 1131, 1139

(R.I. 2011); see also State v. Brumfield, 900 A.2d 1151, 1153 (R.I. 2006); State v. Laurence, 848 

A.2d 238, 253 (R.I. 2004); State v. Thornton, 800 A.2d 1016, 1026 (R.I. 2002). Nevertheless, 

“[e]ven when the de novo standard is applied to issues of constitutional dimension, we still 

accord a hearing justice’s findings of historical fact, and inferences drawn from those facts, great 

deference in conducting our review.” State v. Eddy, 68 A.3d 1089, 1098 (R.I. 2013) (quoting 

Thornton v. State, 948 A.2d 312, 316 (R.I. 2008)). 

III

Discussion

On appeal, defendant argues that her Sixth Amendment right to counsel was violated 

because the trial justice permitted her to represent herself without first determining whether she

had made a constitutionally valid, knowing and intelligent waiver of counsel. In particular, 

defendant contends that the trial justice failed to determine whether she “understood the dangers 

and disadvantages of self-representation * * *.” The state argues that defendant made a 

voluntary waiver of her right to counsel and “that she appreciated the risks in so doing[] * * *.”

Additionally, the state asserts that the colloquies at trial demonstrate that defendant’s waiver of 

counsel was constitutionally valid in that it was “knowing and informed.” 

The Sixth Amendment to the United States Constitution and article 1, section 10 of the 

Rhode Island Constitution afford an accused the right to the assistance of counsel in all criminal 
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prosecutions. See Laurence, 848 A.2d at 252. “Whether defense counsel is retained or 

appointed, this right ensures that the trial is fair.” Id. A criminal defendant also has the right to 

proceed pro se at trial representing himself or herself, provided that his or her waiver of counsel 

is valid. E.g., State v. Spencer, 783 A.2d 413, 416 (R.I. 2001); State v. Chabot, 682 A.2d 1377, 

1379-80 (R.I. 1996); see also Faretta v. California, 422 U.S. 806, 819 (1975) (“The Sixth 

Amendment does not provide merely that a defense shall be made for the accused; it grants to the 

accused personally the right to make his [or her] defense.”). In order for a waiver to be valid, a 

defendant must waive his or her right to counsel voluntarily, knowingly, and intelligently. State 

v. Bluitt, 850 A.2d 83, 88 (R.I. 2004); see also Iowa v. Tovar, 541 U.S. 77, 88 (2004). When 

confronted with a defendant’s purported waiver of counsel, this Court employs a two-prong 

analysis to determine the validity of that waiver. Laurence, 848 A.2d at 253. It is well settled 

that we must first determine whether the waiver was “voluntary,” and then we must determine 

whether the waiver was “knowing and intelligent.” Id. (quoting Thornton, 800 A.2d at 1025); see

also Bluitt, 850 A.2d at 87. 

In conducting this constitutional inquiry, this Court examines the totality of the 

circumstances. Chabot, 682 A.2d at 1379-80. A valid waiver is effective only if a “defendant 

‘knows what he [or she] is doing and his [or her] choice is made with eyes open.’” Id. at 1380 

(emphasis omitted) (quoting Faretta, 422 U.S. at 835). A criminal defendant, therefore, should 

be “made aware of the dangers and disadvantages of self-representation.” Id. (quoting Faretta, 

422 U.S. at 835). To that end, the presence of a detailed colloquy between a trial justice and a 

defendant on the record assists the trial justice in ascertaining the knowing and intelligent nature 

of a defendant’s waiver. See Spencer, 783 A.2d at 416. However, this Court has recognized that 

“such an inquiry is not constitutionally required.” Id.; see also Thornton, 800 A.2d at 1026. 
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Instead, “[w]e are persuaded that an examination of the totality of the circumstances, in light of 

the particular stage of the proceedings at the time the waiver is proposed, is the better approach 

to determine whether a waiver of counsel is knowing, voluntary and intelligent.” Thornton, 800 

A.2d at 1027 (quoting Spencer, 783 A.2d at 417). Moreover, a trial justice “need not make any 

assessment of the extent of the defendant’s technical legal knowledge in determining the 

defendant’s knowing exercise of the right to defend himself.” State v. Briggs, 787 A.2d 479, 485 

(R.I. 2001) (quoting State v. Costa, 604 A.2d 329, 330 (R.I. 1992)).

In Chabot, 682 A.2d at 1380, we elucidated six factors (Chabot factors) to aid trial 

justices in assessing the validity of a waiver of counsel when the competence of a defendant is in 

question at the time of the ostensible waiver. These factors include:

“(1) the background, the experience, and the conduct of the 

defendant at the hearing, including his age, his education, and his 

physical and mental health; (2) the extent to which the defendant 

has had prior contact with lawyers before the hearing; (3) the 

defendant’s knowledge of the nature of the proceeding and the 

sentence that may potentially be []imposed; (4) the question of 

whether standby counsel has been appointed and the extent to 

which he or she has aided the defendant before or at the hearing; 

(5) the question of whether the waiver of counsel was the result of 

mistreatment or coercion; and (6) the question of whether the 

defendant is trying to manipulate the events of the hearing.” Id.

This Court has articulated that the application of these factors by a trial justice is mandatory only 

when the mental competency5 of a defendant is at issue. Laurence, 848 A.2d at 254. Moreover, 

 5 The Supreme Court has recognized that there is no meaningful distinction between the 

competency of a defendant to stand trial and the competency of a defendant to waive counsel. 

Godinez v. Moran, 509 U.S. 387, 399 (1993). In Godinez, the Supreme Court stated:

“Nor do we think that a defendant who waives his [or her]

right to the assistance of counsel must be more competent than a 

defendant who does not, since there is no reason to believe that the 

decision to waive counsel requires an appreciably higher level of 
- 15 -

we recommend, but do not require, the consideration of the Chabot factors under a trial justice’s 

analysis of the totality of circumstances even in cases in which a defendant is considered 

competent. Laurence, 848 A.2d at 253-54; Briggs, 787 A.2d at 486 (“While not mandatory, the 

factors set forth in Chabot may be used as a guide in determining a valid waiver of counsel.”); 

see Spencer, 783 A.2d at 417. 

We first consider the voluntariness of defendant’s waiver of counsel. On appeal,

defendant’s arguments appear to focus on the second prong of our waiver analysis, alleging a 

constitutional deficiency in the knowing and intelligent nature of her waiver. Nevertheless, we 

briefly examine whether defendant waived her right to counsel voluntarily. On the heels of her 

request to release counsel, defendant plainly conveyed to the trial justice, “I will represent 

myself.” As this Court has previously recognized, “[i]t is generally acknowledged that absent 

any showing of ‘good cause’ for a defendant’s refusal to accept court-appointed counsel, such 

refusal is functionally equivalent to a voluntary waiver of the right to counsel.” Laurence, 848 

A.2d at 253 (quoting Thornton, 800 A.2d at 1025). Moreover, on the record before us, the 

 

mental functioning than the decision to waive other constitutional 

rights.” Id.

Nevertheless, the Supreme Court did establish that states may “adopt competency standards that 

are more elaborate than the [Dusky v. United States, 362 U.S. 402 (1960),] formulation * * *.” 

Godinez, 509 U.S. at 396, 402 (“In [Dusky], we held that the standard for competence to stand 

trial is whether the defendant has a ‘sufficient present ability to consult with his lawyer with a 

reasonable degree of rational understanding’ and has ‘a rational as well as factual understanding 

of the proceedings against him.’”). Under this Court’s precedent, “[w]e previously have 

determined that a defendant is subjected to a heightened standard of competency when he [or 

she] attempts to waive counsel and appear pro se.” State v. Thomas, 794 A.2d 990, 994 (R.I. 

2002). This heightened standard requires the application of the Chabot factors when a 

defendant’s mental competency is in question at the time of the waiver, in order to determine 

whether a defendant is making a voluntary, knowing, and intelligent waiver. State v. Chabot, 682 

A.2d 1377, 1380 (R.I. 1996). In the present case, no suggestion was made either at trial or on 

appeal that defendant was not competent to stand trial. This opinion is confined to the facts of 

this case and the only issue on appeal, which is whether defendant’s waiver of counsel was 

constitutionally valid. 
- 16 -

lengthy colloquies between the trial justice and defendant establish that defendant’s decision—to 

waive counsel and proceed pro se at trial—was a product of her own free will. For these reasons, 

we are satisfied that defendant’s waiver of counsel was voluntary.

Next, we consider whether defendant’s waiver of counsel was knowingly and 

intelligently executed. The trial justice engaged in an extended colloquy with defendant, during

which she had the benefit of seeing and hearing defendant firsthand, to augment defendant’s 

rationale and responses now on the record before us. The defendant’s conduct throughout that

colloquy demonstrated her dissatisfaction with her counsel and her belief that “[she] could do it 

better [her]self.” Accordingly, the trial justice inquired whether defendant knew how to 

represent herself at trial. In response, defendant informed the trial justice that she was unable to 

read or write and did not know how to represent herself, but nevertheless she made it clear that it 

was her intent to proceed pro se. Over the course of the colloquy, the trial justice endeavored to, 

and in our opinion did, make defendant “aware of the dangers and disadvantages of selfrepresentation.” Chabot, 682 A.2d at 1380 (quoting Faretta, 422 U.S. at 835). In particular, the 

trial justice explained the potential difficulties of self-representation given the complex rules of 

the courtroom, which the trial justice made clear she would require defendant to follow. 

Furthermore, the trial justice expressed her concerns that defendant’s lack of knowledge of law 

and trial procedure “c[ould] cause a trial not to be fair.” Despite the trial justice’s repeated 

admonitions, defendant remained firm in her choice to represent herself without any assistance of 

counsel.

In exploring defendant’s options moving forward, the trial justice did revisit her offer of a 

not-guilty filing provided defendant “keep the peace and be of good behavior.” In response, 

defendant again explained the rationale behind her refusal to accept the not-guilty filing, which
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demonstrated her reasonable apprehension and concern based on her previous interactions with 

police and her neighbors. When she initially rejected the trial justice’s offer of a not-guilty 

filing, defendant explained: “I came from the Dominican Republic. I have an organization. I help 

a lot of kids to keep them off the street, teach them about their rights, the same way I’m going 

through right now and I’m innocent and if I decide to take this, I will not live with myself at all.”

The defendant’s introspection evidences her grasp of the circumstances before her, as well as the

potential perils beyond her control associated with the not-guilty filing. Later in the colloquy, 

when defendant did not appear amenable to any option besides proceeding pro se, the trial justice 

presented the option of having her attorney serve as standby counsel. 

Although the trial justice engaged in a colloquy with defendant, she did not explicitly 

apply the Chabot factors. Nevertheless, even though the factors remain relevant, this Court has 

consistently stated that a trial justice is required only to employ the Chabot factors when there 

are questions regarding the mental competency of a defendant. See, e.g., Thornton, 800 A.2d at 

1027; Briggs, 787 A.2d at 486; Spencer, 783 A.2d at 416-17. Now, on appeal, the argument that 

defendant advances suggests that, as the trial progressed, her conduct brought to light questions 

concerning her mental competency. She contends that the trial justice erred in not probing more 

deeply into her mental health because “red flags were waving for Chabot’s application in this 

matter since there were legitimate doubts about most of the Chabot factors.”6 A self-represented 

litigant’s performance at trial, however, does not inform the knowing and intelligent nature of his 

or her original waiver of counsel. Rather, the relevant time frame for assessing the validity of a 

 6 “In Chabot, this Court held that if a defendant waives his [or her] right to counsel and, in doing 

so, creates a legitimate doubt about his [or her] mental condition, then ‘it [is] incumbent upon the 

trial justice to conduct a more searching inquiry of [the] defendant’s then existing mental health 

and physical condition[.]’” Rose v. State, 994 A.2d 662, 664 (R.I. 2010) (mem.) (quoting 

Chabot, 682 A.2d at 1380).
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defendant’s waiver of counsel and, similarly, questions regarding her competency to do so, is at 

the time of the waiver. See Rose v. State, 994 A.2d 662, 664 (R.I. 2010) (mem.); State v. 

Holdsworth, 798 A.2d 917, 923 (R.I. 2002). In this case, the record is devoid of any concern 

raised in the colloquy between the trial justice and defendant, or by her former counsel, as to her 

mental competency. Thus, considering the facts before the trial justice at the time of defendant’s 

waiver, it is unlikely that they gave rise to “legitimate doubts about * * * defendant’s mental 

condition.” Chabot, 682 A.2d at 1380.

Moreover, the trial justice had no circumstances before her to suggest that defendant was 

presently affected by or had a history of any psychiatric diagnosis or treatment. See Rose, 994 

A.2d at 664-65, 665 n.6 (noting that there was no evidence in the record to alert the hearing 

justice to the defendant having any potential mental disability that warranted the application of 

the Chabot factors). As such, the facts of this case are distinct from those in Chabot, 682 A.2d at 

1380, where the trial justice knew that the defendant had been a patient and had been prescribed 

medication in a psychiatric care unit for five months before the probation-revocation hearing. In 

that case, we held that the defendant’s waiver of counsel was not valid because a more thorough 

inquiry, involving the Chabot factors, was necessary based on those facts. Id. at 1380-81. 

Similarly, in Holdsworth, 798 A.2d at 924, the trial justice was aware that the defendant had 

previously been a patient at a mental health facility. In light of that fact, this Court determined 

that the defendant’s waiver of counsel was not valid because the trial justice had not applied the 

Chabot factors. Id. at 924-25.

At the time of defendant’s waiver of counsel, the record before us, however, does not 

present analogous facts. Therefore, although an explicit Chabot discussion would have been 

preferable, the absence of such a colloquy does not infect defendant’s waiver of counsel with any 
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constitutional defect. As our review is confined to the written record, we emphasize the fact that 

the trial justice, who had the benefit of seeing and hearing defendant firsthand, made the decision 

that application of the Chabot factors was not necessary.

7 Moreover, much of the information 

that a Chabot analysis is intended to mine was unearthed during the colloquy between the trial 

justice and defendant. It was revealed that defendant was at the time a fifty-two-year-old widow 

who owned her own home; her children were teachers and she was involved in the community, 

particularly with “kids.” She acknowledged that she could not read or write, but she answered 

the trial justice’s questions and at all times was respectful to the court. Not only was defendant 

represented by counsel during all preliminary proceedings in Superior Court, she was also 

represented by counsel throughout her trial and conviction in the District Court. Further, there is 

absolutely no indication that she was trying to manipulate the proceedings or that her waiver was 

the result of mistreatment or coercion. On the contrary, defendant resolutely maintained her 

desire to waive counsel and proceed on her own behalf before the court.

Also, defendant repeatedly expressed her unwillingness to accept a one-year not-guilty 

filing of the charges, realizing that the charges would not disappear during that year. She 

explained that she lived in a predominantly white neighborhood, which she described as “the 

wrong neighborhood,” and she expressed a distrust of both her neighbors and the police because 

she is “Spanish.” She indicated that this incident was not the first time the police had come into 

her house without an invitation. She maintained her innocence and clearly did not want these 

charges hanging over her head for another year. Rather, she wanted them resolved by a jury 

 7 See Commonwealth v. Simpson, 704 N.E.2d 1131, 1136 (Mass. 1999) (addressing the issue of 

the defendant’s competency to stand trial and noting that “[t]he [trial] judge, unlike appellate 

judges, had the advantage of seeing and hearing the defendant.”); Commonwealth v. DeMinico, 

557 N.E.2d 744, 748 (Mass. 1990) (same).
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trial. We cannot conclude that, as defendant argues on appeal, the very fact that she rejected a 

not-guilty filing “was not a rational decision.” 

We next turn to address defendant’s appellate argument that chronicles her many 

deficiencies in self-representation at trial to bolster her contention that the Chabot factors should 

have been applied. The Supreme Court has established that “the competence that is required of a 

defendant seeking to waive h[er] right to counsel is the competence to waive the right, not the 

competence to represent h[er]self.” Godinez v. Moran, 509 U.S. 387, 399 (1993). “Thus, while 

‘[i]t is undeniable that in most criminal prosecutions defendants could better defend with 

counsel’s guidance than by their own unskilled efforts,’ * * * a criminal defendant’s ability to 

represent h[er]self has no bearing upon h[er] competence to choose self-representation.” Id. at

400 (quoting Faretta, 422 U.S. at 834). 

Further, the Supreme Court, as well as this Court, has made clear that “technical legal 

knowledge” is not relevant to whether a defendant made a knowing and intelligent waiver of 

counsel. See, e.g., Faretta, 422 U.S. at 836; Sampson, 24 A.3d at 1143; Costa, 604 A.2d at 330.

Consequently, we do not consider defendant’s missteps at trial due—at least in large part—to her 

lack of knowledge of law and trial procedure as part of the knowing and intelligent inquiry in our 

waiver validity analysis. Moreover, we echo one of the Supreme Court’s fundamental teachings 

on the right of self-representation that, “although [defendant] may conduct h[er] own defense 

ultimately to h[er] own detriment, h[er] choice must be honored out of ‘that respect for the 

individual which is the lifeblood of the law.’” Faretta, 422 U.S. at 834 (quoting Illinois v. Allen, 

397 U.S. 337, 350-51 (1970) (Brennan, J., concurring)).

Although it would have been preferable for the trial justice to specifically address some 

of the pertinent Chabot factors, we are not persuaded that such an inquiry would have produced 
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any evidence to suggest that defendant’s waiver of counsel was not knowing and intelligent. See

Spencer, 783 A.2d at 417-18. Accordingly, in light of the particular stage of the proceedings, the 

facts before the trial justice at the time of waiver, and the trial justice having the benefit of seeing

and hearing defendant, we believe that the trial justice engaged in a pragmatic colloquy sufficient 

to establish the validity of defendant’s waiver. See id.

After careful consideration of the totality of the circumstances at the time of the 

defendant’s waiver, we conclude that the record establishes the defendant’s voluntary, knowing, 

and intelligent waiver of her right to counsel. The defendant made her choice—eyes wide 

open—to waive counsel and represent herself at trial. 

IV

Conclusion

For the reasons stated herein, the judgment of the Superior Court is affirmed. The record 

of this case shall be returned to the Superior Court. 
RHODE ISLAND SUPREME COURT CLERK’S OFFICE

Clerk’s Office Order/Opinion Cover Sheet

TITLE OF CASE: State v. Ana M. Cruz. 

 

CASE NO: No. 2013-282-C.A.

(P3/12-3306A)

COURT: Supreme Court

DATE OPINION FILED: February 11, 2015

JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY: Chief Justice Paul A. Suttell

SOURCE OF APPEAL: Providence County Superior Court

JUDGE FROM LOWER COURT:

 Associate Justice Judith C. Savage

ATTORNEYS ON APPEAL:

 For State: Aaron L. Weisman

 Department of Attorney General

 

For Defendant: Catherine Gibran

 Office of the Public Defender