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State v. Kowalski

Court of Appeals of Missouri, Southern District, Second Division

November 5, 2019

STATE OF MISSOURI, Plaintiff-Respondent,
JEFFREY SCOTT KOWALSKI, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY Honorable Michael O. Hendrickson.

          DON E. BURRELL, J.

         Jeffrey Scott Kowalski ("Defendant") was convicted of one count of the class-D felony of unlawful merchandising practices (see section 407.020[1]) ("Count 1" or "criminal merchandising practices"), one count of the class-A misdemeanor of deceptive business practices (see section 570.140), one count of the class-B misdemeanor of identity theft (see section 570.223), and one count of the class-B misdemeanor of attempted stealing by deceit (see section 564.011). Defendant's first point claims he was improperly denied the right to represent himself at trial. Point 2 challenges the sufficiency of the evidence to support his conviction for criminal merchandising practices.

         Finding merit only in Defendant's second point, we reverse his conviction on Count 1 and affirm the judgment in all other respects.

         The Evidence

         In reviewing the sufficiency of the evidence to support a criminal conviction, we view the evidence in the light most favorable to the State and give it the benefit of all reasonable inferences that might be drawn therefrom. State v. Loewe, 893 S.W.2d 880, 882 (Mo. App. S.D. 1995). The following recitation of the evidence relevant to Defendant's points is presented in accordance with that standard.

         In 2016, Dr. Timothy Hadfield ("Dr. Hadfield"), the superintendent of a local school district, received an envelope that listed Defendant as the return addressee. Inside the envelope was an IRS form that claimed Dr. Hadfield had received $600.00 from Starprose Corporation. He interpreted the form ‒ which required him to provide his social security number ‒ to mean that he had not paid taxes on $600.00 worth of income from that entity. Starprose Corporation also sent Dr. Hadfield an email at his school email address that included an IRS W-9 form as an attachment. The email asked Dr. Hadfield to return the completed form to enable him to receive payments from Starprose Corporation.

         Dr. Hadfield, who had not had any business dealings with either Starprose Corporation or Defendant, did not return either document. Instead, he contacted the Missouri Superintendent's Association in an attempt to figure out what was going on. That organization contacted the Missouri Attorney General's office, and Dr. Hadfield learned that other school officials and state employees had received similar letters.

         A few months later, Dr. Hadfield received a notice that claimed he owed an unpaid debt in the amount of $50.00. The letter was from GE Services, and it directed Dr. Hadfield to send the $50.00 owed to Defendant at Starprose Corporation. Dr. Hadfield did not know Defendant, and he had no idea why Defendant was sending him a bill for $50.00. Because the letter looked official, Dr. Hadfield asked his school's attorney to respond to GE Services. Shortly thereafter, Dr. Hadfield received a retraction letter from GE Services that indicated Defendant had abused its collection system and that Defendant's account had been deactivated as a result of that abuse.

         Defendant testified at trial in his own defense, and he admitted to sending the letters and emails to Dr. Hadfield and others as part of what he claimed was a "misguided and complicated prank, directed at people that he thought had clout in Missouri." Additional evidence will be mentioned as necessary in our analysis of Defendant's points.


         Point 1 - Forfeiture of Right to Self-Representation

         Defendant's first point claims the trial court "plainly erred" in denying his repeated requests to represent himself because those requests "were timely, unequivocal, knowing, voluntary, and intelligent[.]"[2]

         "The Sixth Amendment grants an accused the right to counsel, as well as the related right to waive counsel and proceed pro se." United States v. Mosley, 607 F.3d 555, 558 (8th Cir. 2010). "A criminal defendant who makes a timely, informed, voluntary and unequivocal waiver of the right to counsel may not be tried with counsel forced upon him by the State." State v. Hampton, 959 S.W.2d 444, 447 (Mo. banc 1997).

However, a defendant's right of self-representation is not absolute; it can be terminated when the defendant engages in serious obstructionist misconduct. U.S. v. Edelmann, 458 F.3d 791, 808-809 (8th Cir.2006) (quoting Faretta [v. California, 422 U.S. 806, 834, n.46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975))]. On that determination, we review for an abuse of discretion. Id.

Johnson, 328 S.W.3d at 394. See also State v. Blackmon, 664 S.W.2d 644, 648 (Mo. App. S.D. 1984) (holding that the trial court did not abuse its discretion in requiring defendant to stand trial with assistance of counsel given the results of defendant's psychiatric report). "The government's interest in ensuring the integrity and efficiency of the trial at times outweighs the defendant's interest in acting as his own lawyer." Johnson, 328 S.W.3d at 395 (quoting Mosley, 607 F.3d at 558).

         Here, neither party disputes that Defendant's request to represent himself was made timely, unequivocally, knowingly, and intelligently. In September 2016, Defendant waived his right to counsel and was allowed to represent himself through August 2017. At that time, a new judge was assigned to the case ("the trial court"). After conducting a hearing, the trial court continued to allow Defendant to proceed without an attorney.

         That status changed in December 2017, when the trial court revoked Defendant's bond and appointed counsel to represent him due to inappropriate pre-trial conduct Defendant engaged in while acting on his own behalf. The issue in this appeal is whether the trial court abused its discretion in ruling that Defendant had forfeited his right to represent himself due to those behaviors.

         In Johnson, the defendant was held to have forfeited his right to self-representation by incessantly impugning his lawyers, ranting to the court, using obscenities, and going on tirades that impeded the judicial proceedings and led the court to order that defendant undergo a mental evaluation. 328 S.W.3d at 396-97. In Mosley, the reviewing court determined that the defendant - who also had undergone a mental evaluation - was either unable or "unwilling to participate in the proceedings" due to his refusal to answer questions as well as his bizarre responses when questioned by the court. 607 F.3d at 557-59. The Mosley defendant "wanted to talk … about everything but [his] case." Id. at 559.

         Here, the trial court revoked Defendant's right to represent himself after Defendant ...

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