Court of Appeals of Missouri, Western District, Second Division
FROM THE CIRCUIT COURT OF RANDOLPH COUNTY The Honorable Ralph
H. Jaynes, Judge
Lisa White Hardwick, Presiding Judge, Thomas H. Newton and
Mark D. Pfeiffer, Judges
WHITE HARDWICK, JUDGE
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.
and Procedural History
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.
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
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.
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]?
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
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.
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.
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.
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.
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.
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
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.
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
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 ...