Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Margaret
W. Grant ("Defendant") was convicted after a bench
trial of the class-A misdemeanor of domestic assault in the
third degree and sentenced to 180 days in jail.In two points,
Defendant claims the trial court: (1) "abused its
discretion in overruling [Defendant]'s objections and
admitting into evidence [his wife]'s out-of-court
statements through the testimony of Officer Wright, because
the admission of the statements violated [Defendant]'s
right to confront and cross-examine the witnesses against
[Defendant]"; and (2) "erred in allowing
[Defendant] to represent himself because this denied
[Defendant] his rights to counsel and due process" in
that Defendant's "purported waiver of counsel was
not voluntary, unequivocal, knowing and intelligent[.]"
merit in Defendant's second claim, we must reverse his
conviction and remand the matter for a new trial.
Law & Applicable Principles of Review
burden to prove that a waiver of counsel is valid belongs to
the state." City of St. Peters v. Hodak, 125
S.W.3d 892, 895 (Mo. App. E.D. 2004). "If the record
does not disclose that the defendant's waiver of his
right to counsel was a knowing and intelligent one, the
presumption arises that it was not." State v.
Davis, 934 S.W.2d 331, 334 (Mo. App. E.D. 1996). In
determining whether a waiver of the right to counsel was made
knowingly and intelligently, our review is de novo.
State v. Johnson, 328 S.W.3d 385, 394 (Mo. App. E.D.
2-The Record Does Not Demonstrate that Defendant's Waiver
of Right to Counsel Was Made Knowingly and Intelligently
Defendant's second point is dispositive, we address it
first. The Sixth Amendment and Fourteenth Amendment guarantee
the right to counsel in all criminal prosecutions. Gideon
v. Wainwright, 372 U.S. 335, 339-42 (1963). However, a
defendant may waive his right to counsel and proceed pro
se. State v. Ehnes, 930 S.W.2d 441, 443 (Mo.
App. S.D. 1996). Such a waiver must be: (1) timely; (2)
unequivocal; (3) knowing; and (4) intelligent. State v.
Black, 223 S.W.3d 149, 153 (Mo. banc 2007).
determination of whether a knowledgeable and intelligent
waiver has been made must be supported by an inquiry
conducted on the record so there is evidence demonstrating
that the defendant understood the ramifications of the
waiver. Hodak, 125 S.W.3d at 895. "Absent an
inquiry on the record showing [that the d]efendant understood
the ramification of the waiver of counsel, the imposition of
jail time is unconstitutional." State v.
Johnson, 172 S.W.3d 900, 902 (Mo. App. S.D. 2005).
Missouri law, a defendant's waiver is not knowing and
intelligent unless the court timely informs him as to the
nature of the charges against him, potential sentence(s) if
convicted, potential defenses he might offer, nature of the
trial proceedings, and dangers of proceeding pro se.
Hodak, 125 S.W.3d at 894. A defendant's
knowledge of all relevant facts is not required,
see State v. Gilmore, 697 S.W.2d 172, 174-75 (Mo.
banc 1985), and "[w]hether a defendant's waiver is
made knowingly and intelligently depends on the particular
facts and circumstances surrounding the case, including the
background, experience, and conduct of the accused."
Black, 223 S.W.3d at 154.
the trial court received a written waiver of counsel form
from Defendant. While section 600.051 allows a defendant to
execute a written waiver of counsel, the State's burden
of proving a knowing and intelligent waiver was not met
simply because the trial court received and reviewed that
form. See Hodak, 125 S.W.3d at 894. Upon receiving
the waiver form, the trial court made the following inquiry
regarding Defendant's decision:
Q: Do you understand that you have been charged with a Class
A misdemeanor of domestic ...