S.E. 2d
THE STATE OF SOUTH CAROLINA
In The Supreme Court
The State, Respondent,
v.
Johnny Brewer, Appellant.
ON WRIT OF CERTIORARI
Appeal From Lexington County
Rodney A. Peeples, Judge
Opinion No. 24699
Submitted September 29, 1997 - Filed October 13, 1997
REVERSED
John D. Delgado, of Columbia, for appellant.
Attorney General Charles Molony Condon, Deputy
Attorney General John W. McIntosh, Assistant
Deputy Attorney General Donald J. Zelenka, all of
Columbia; and Solicitor Donald V. Myers, of
Lexington, for respondent.
PER CURIAM: Following the denial of appellant's motion to
proceed pro se in this capital case, we issued a writ of certiorari to review
the decision of the circuit court. We reverse.
p35
STATE v. JOHNNY BREWER
It is well-established that an accused may waive the right to
counsel and proceed pro se. Faretta v. California, 422 U.S. 806, 95 S.Ct.
25251 45 L.Ed.2d 562 (1975); State v. Dixon, 269 S.C. 107, 236 S.E.2d 419
(1977). Although a defendant's decision to proceed pro se may be to the
defendant's own detriment, it "must be honored out of that respect for the
individual which is the lifeblood of the law." Faretta v. California, 422
U.S. at 834, 95 S.Ct. at 2541, 45 L.Ed.2d at 581.
The right to proceed pro se must be clearly asserted by the
defendant prior to trial. State v. Sims, 304 S.C. 409, 405 S.E.2d 377
(1991); United States v. Lorick, 753 F.2d 1295 (4th Cir. 1985). The trial
judge has the responsibility to ensure that the accused is informed of the
dangers and disadvantages of self-representation, and makes a knowing
and intelligent waiver of the right to counsel. Faretta v. California supra;
State v. Dixon, supra. The ultimate test of whether a defendant has made
a knowing and intelligent waiver of the right to counsel is not the trial
judge's advice, but the defendant's understanding. Graves v. State, 309
S.C. 307, 422 S.E.2d 125 (1992). A determination by the trial judge that
the accused lacks the expertise or technical legal knowledge to proceed pro
se does not justify a denial of the right to self-representation; the only
relevant inquiry is whether the accused made a knowing and intelligent
waiver of the right to counsel. Faretta v. California, supra; United States
v. Bennett, 539 F.2d 45 (10th Cir. 1976).
In ruling on appellant's motion to proceed pro se, the trial
judge stated, "If this was [sic] not a death penalty case, perhaps my ruling
would be different. But I am of the view that the court has adequately
explained to you your right of self representation, and I think that you
understand it, but I don't think you appreciate it. I think you've
understood what I have said, but I think you have failed, for whatever
motive or reason that you have, to accept it . . . " Although the judge
found that he had adequately explained appellant's right of self-
representation and appellant understood it, he stated that appellant did
not "appreciate it" and had failed to "accept it." According to the trial
judge, "because of the irreversible nature of the consequences," allowing
appellant to represent himself in this case "is fraught with inherent
disastrous consequences."
There is no prohibition against a capital defendant knowingly
and intelligently waiving the right to counsel. See State v. Brown, 289
S.C. 581, 347 S.E.2d 882 (1986)(trial judge properly determined a capital
defendant knowingly and intelligently waived his right to counsel where
p36
STATE v. JOHNNY BREWER
the trial judge informed him that he was not entitled to appointed counsel
because he was not indigent and advised him of the dangers of self-
representation). Although the State points to appellant's request for stand-
by counsel as evidence that appellant did not knowingly and intelligently
waive his right to counsel, a defendant has a right to the assistance of
counsel even if he is representing himself. State v. Sanders, 269 S.C. 215,
237 S.E.2d 53 (1977). Therefore, the fact that appellant requested stand-
by counsel does not render the waiver of counsel invalid.
It appears that the trial judge denied the motion to proceed
pro se based on the fact that the trial judge did not believe that
appellant's decision to represent himself in a death penalty case was a
good decision. A decision can be made intelligently, with an
understanding of the consequences, without the decision itself being a wise
one.
Because the evidence reveals, and the trial judge found, that
appellant's decision to waive his right to counsel and proceed pro se in
this matter was knowingly, intelligently, and voluntarily made, the trial
judge violated appellant's 6th Amendment right to self-representation in
denying the motion. We find that appellant is entitled to proceed pro se
in this matter with the assistance of stand-by counsel. Accordingly, the
decision of the trial judge is
REVERSED.
p37