People v. Gemelli.
2023 COA 119. No. 20CA1291. Sixth Amendment Right to Counsel—Waiver—Right to Self-Representation—Alleged Trial Court Errors—Prosecutorial Misconduct—Jail Official Interference—Court’s Response to Jury Question.
December 14, 2023
Gemelli was charged with five counts of sexual assault on a child by one in a position of trust as part of a pattern of abuse and one count of aggravated incest. The court appointed a lawyer to represent him. A few months later, Gemelli filed a motion to proceed pro se with an appointed co-counsel or to have substitute counsel appointed, but after further consideration, Gemelli withdrew his request to proceed pro se. About a month before the scheduled trial date, the court held a hearing on pending motions, including Gemelli’s motion to reduce bond. Defense counsel explained that he needed a continuance but that Gemelli would not agree to one if he had to remain in custody; and if the court denied the bond motion, Gemelli would likely elect to proceed pro se to preserve his trial date. The court denied the request to reduce bond. Gemelli immediately informed the court that he would appear pro se. At Gemelli’s request, the court appointed advisory counsel, with the caveat that advisory counsel was unlikely to be adequately prepared to assist Gemelli given that the trial was starting in just over a month. Gemelli decided to proceed, and he did not seek reappointment of counsel or request that advisory counsel take over the representation at any time during his six-day trial. A jury found him guilty of sexually assaulting his daughter and four of her friends.
On appeal, Gemelli argued that his waiver of his right to counsel was invalid because it was induced by his continued detention and his desire to avoid a continuance, so it was equivocal, conditional, and involuntary. A defendant’s waiver of counsel is valid only if it is unequivocal and unconditional, and, as relevant here, is made voluntarily. A criminal defendant may be required to choose between waiver of the right to counsel and another course of action when the choice presented is not constitutionally offensive. Here, Gemelli’s options were to continue with counsel but agree to a continuance or proceed pro se and maintain his trial date. Gemelli’s waiver was not equivocal because as soon as the trial court denied his motion for a bond reduction, Gemelli spontaneously stated that he wanted to proceed pro se and reiterated this intent multiple times. Further, a conditional waiver problem arises when the defendant’s request to represent themselves is contingent on the occurrence of a particular circumstance that does not occur. Here, Gemelli’s request to proceed pro se was conditioned on the occurrence of an event that did occur: the denial of his bond request. Accordingly, the waiver was not impermissibly conditional. Lastly, the fact that Gemelli had to choose between the two options did not render his waiver involuntary; as Gemelli explained to the court, he would not agree to a continuance if he remained in custody. Therefore, Gemelli validly waived his right to counsel.
Gemelli also argued that even if his waiver was valid, trial court errors and prosecutorial misconduct deprived him of his right of self-representation. When a defendant asserts a violation of the right to self-representation, the question is whether the trial court appointed counsel despite a valid request to proceed pro se or allowed standby counsel (or some other third party) to take over management of the case to such a degree that the defendant’s right to speak for himself was eradicated. Trial court errors and prosecutorial misconduct do not implicate a defendant’s self-representation right because that right is violated only when the court prevents the defendant from conducting their own defense, which did not occur here. The court of appeals declined to analyze all of the alleged trial court errors and instances of prosecutorial misconduct as violations of Gemelli’s constitutional rights to present a defense and to a fair trial because he did not allege or demonstrate that any particular error or defect affected his substantial rights and necessitates reversal.
Gemelli further contended that jail officials deprived him of his right of self-representation by failing to give him sufficient time to review discovery and prepare for trial, by sometimes denying his investigator entry to the jail, and by limiting his access to the law library and his time with advisory counsel. But an incarcerated defendant who elects to proceed pro se must exercise their right to present a defense within the practical limitations imposed by incarceration. And Gemelli did not explain how his limited access to the law library, his investigator, and his advisory counsel impaired his ability to represent himself at trial, so he failed to show that jail officials interfered with his self-representation right.
Gemelli also contended that because he showed that he was ineffective as his own advocate, the court was obligated to override his right of self-representation and require that advisory counsel take over as his lawyer. However, no authority exists for the proposition that a trial court can sua sponte terminate a defendant’s self-representation simply because they are ineffective as their own advocate. Once a defendant has validly waived the right to counsel, they are entitled to conduct their own defense, regardless of the defendant’s lack of legal training, specialized knowledge, or experience. Accordingly, the court was neither obligated nor authorized to relieve Gemelli of the consequences of his decision by sua sponte rescinding his waiver. And Gemelli did not explain how it could have helped his case if the court had terminated his self-representation mid-trial and appointed advisory counsel. Therefore, the trial court did not err.
Lastly, Gemelli asserted that the court’s response to the jury that it was unable to answer the jury’s question constituted reversible error. He maintained that the jury indicated it was deadlocked on one count, so before the court could respond to its question, it had to ask whether further deliberations were likely to lead to a unanimous verdict. And because the court did not so inquire, its response was coercive. Here, however, the jury’s note did not indicate a deadlock, and neither party challenged the court’s view that the jury was not hung. And in deciding how to respond, the court noted that if the jurors advised the court that they were truly hung, the court would invite jurors back into session and inquire whether they exhausted the possibility of deliberation and provide them additional instructions. Accordingly, the court did not err.
The judgment was affirmed.