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State v. Ndon

Court of Appeals of Missouri, Western District, Second Division

August 27, 2019


          APPEAL FROM THE CIRCUIT COURT OF RANDOLPH COUNTY The Honorable Ralph H. Jaynes, Judge

          Before Lisa White Hardwick, Presiding Judge, Thomas H. Newton and Mark D. Pfeiffer, Judges


         Timothy Ndon appeals from his convictions for operating a motor vehicle without a valid license and resisting arrest. He contends the circuit court erred in allowing him to represent himself without making an adequate determination on the record that his waiver of counsel was voluntary, unequivocal, knowing, and intelligent and without obtaining a statutorily-required written waiver of counsel. For reasons explained herein, we affirm.

         Factual and Procedural History

         On December 22, 2016, a highway patrol officer stopped Ndon for not dimming his headlights for oncoming traffic. Ndon, who had two prior convictions for driving a motor vehicle without a license, did not produce any identification despite six requests from the officer to do so. Ndon was physically and verbally uncooperative during the stop. The State subsequently charged him with driving a motor vehicle without a license and resisting arrest.

         Ndon was arraigned on February 22, 2017. At the start of the arraignment, the court advised Ndon of the charges against him, the range of punishment on each charge, and his rights. The court asked him how he would like to plead. Ndon responded by arguing that he was not required to have a driver's license under the Constitution and various United States Supreme Court decisions. The court asked Ndon whether he had considered having an attorney help him advance his constitutional claims. Ndon made several non-responsive comments.

         The court asked both parties if they were ready to proceed to trial. After Ndon made a non-responsive comment and the State said that it was ready to proceed, the court advised Ndon that he was entitled to a jury trial but could waive that right. The court asked him if he wanted to hire counsel, consult with counsel, or apply to have a public defender. Ndon responded:

Well again, against accepting those offers also as a condition of accepting all those offers upon proof of claim that those who, whether they live or die, they put their trust in those things that they understand as being right and good, those names become great. And they'll all be indicted on day, some way or another. So is it not more honorable to adopt those things that are right and good than to bow down for those who the weakness [sic]?

         The court reiterated to Ndon that, if he wanted to take his case to the United States Supreme Court, "sometimes the best way to get it there is to have counsel help you get these motions filed, so that your rights are protected." Following a discussion between the court and Ndon on various topics, the court again asked him if he was requesting counsel who could help him understand the case. Ndon responded, "The request I made is to understand the nature of the matter. Because from my understanding, if there's no injured party, there is no claim. Sheers v. Culler." The court said, "So there being no request for counsel or court-appointed counsel, the Court sees that this gentleman is representing himself for the time being."

         Ndon and the court then discussed the State's plea offer and his grievances against the highway patrol troopers who arrested him. The court told Ndon that it was finding that he was pleading not guilty, and the court advised him that he would have the right to plead guilty later if he wanted to or to have a jury or bench trial. The court further advised Ndon that, while he could represent himself, it "gets kind of complicated when you have a jury trial when you're representing yourself, just because there's a lot of formality to it." Ndon responded by stating what he believed were his defenses to the charges.

         Ndon continued to espouse his purported defenses as the court attempted to discern whether he wanted to accept the State's guilty plea offer or go to trial. At one point, Ndon stated that it was difficult to "assess certain matters, because there is no adequate law library, no dictionaries." In response, the court raised the possibility of applying for public defender services:

Well, let me ask you this then. Do you think you'd qualify for the public defender, as far as money-wise? You have to be indigent, they call that. You can't have lots of property, or cash, or what not. Because here's what I'm thinking, if you qualify for the public defender, we have you apply, they'll represent you. They can get you copies of the laws that you want copies of. They can assist you with this.
At some point in time down the road, if you want to determine that you're no longer in need of their services, we'll let you get rid of them. But they can at least help you with the leg work of understanding what this is.

         Ndon did not directly address that suggestion and instead repeated his legal theories. At the close of the hearing, the court again told Ndon that he could apply for a public defender, and the court advised him that, if he did not understand any of the things the court was saying, to "feel free to consult an attorney, and if you can't afford one, the public defender can be appointed for you." Again, Ndon did not respond directly to the court's advice.

         In July 2017, the court ordered Ndon to submit to a mental examination. Pursuant to the order, the report of the examination was to include opinions regarding whether Ndon had a mental disease or defect and, if so, whether he lacked the capacity to understand the proceedings against him or to assist in his defense.

         Ndon next appeared in court on October 11, 2017. The court stated that it was waiting on the results of the mental examination. The court told Ndon that if he was found competent to stand trial, the court would need to get a waiver of counsel on the record or the court could appoint an attorney for him if he wished. Ndon responded by arguing that his right to a speedy trial had been violated.

         Ndon's next court appearance was December 14, 2017. The court opened the hearing by telling Ndon that the court needed to know if he wanted to waive counsel or obtain court-appointed counsel. The court stated that it wanted to address the issue in open court. The court presented Ndon with a second waiver of counsel form, noting that a form had previously been sent to him at the jail but had not been read. Ndon's response was:

Why do you keep speaking to me about trials, and waiver of counsel, and these matters, and why wasn't that done during the time that you had early that year? Why do you keep on denying to dismiss the matter, which was asked to several times? And you do what you like to do, you do whatever it is you want to do. You don't even abide by your own laws, like you're mighty, a deity, I presume by your actions.

         Later in the hearing, the court again asked Ndon if he wanted to apply with the public defender, hire a private attorney, or waive counsel. Ndon did not directly respond but instead questioned the propriety of the proceedings, including the prosecutor's behavior and the judge's neutrality. After indicating that the court would be willing to consider an untimely motion for change of judge, the court told Ndon, "But I have to first determine whether you're waiving counsel, or requesting counsel. Do you want to waive or request counsel, so that we can keep your case moving?" Once again, Ndon did not directly respond to the court's question. The court and Ndon then had the following exchange:

THE COURT: The mental evaluation says that you are fit to stand trial, that you're aware of your rights, and that they recommend that we can proceed to trial. Now that I have the green light to have you a trial, I want to have your trial. I want you to have counsel, if you want. If you don't want it, that's fine. What I'm going to do now - it's very important to me, and I hope it's important to you - is that this right to counsel is going to be considered waived.
NDON: No, you're not waiving anything--
THE COURT: Today, you've got a written waiver you can fill out. We'll get him a public defender application. I'm going to send you back to the jail cell with - just go ahead and give him the application. You're going to have an application for public defender services, and you're going to have a waiver of counsel.
One of them requires an affirmative act. To employ a public defender, you have to affirmatively fill out a public defender application. If you fail to fill out the application, you don't have to affirmatively fill out the waiver of counsel. The Court will consider it a waiver of counsel, and will proceed to trial without counsel, unless you hire one or subsequently ask for a public defender application. I can't keep you in jail indefinitely, and I do not want to. I want to conclude your case.
NDON: Then why did you send a message by the sheriff, saying that you would keep one ...

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