THE STATE OF SOUTH CAROLINA

In The Supreme Court

The State, Respondent,

v.

James Earl Reed, Appellant.

Appeal From Charleston County

William L. Howard, Sr., Judge

Opinion No. 24826

Heard October 22, 1997 - Filed July 27, 1998

AFFIRMED

Chief Attorney Daniel T. Stacey, and Deputy Chief

Attorney Joseph L. Savitz, III, both of South Carolina

Office of Appellate Defense, of Columbia, for

appellant.

Attorney General Charles M. Condon, Deputy

Attorney General John W. McIntosh, and Assistant

Deputy Attorney General Donald J. Zelenka, of

Columbia; and Solicitor David P. Schwacke, of North

Charleston, for respondent.

FINNEY, C.J.: Appellant James Earl Reed, was convicted of

murdering his former girlfriend's parents. Appellant was sentenced to death.

This appeal consolidates appellant's direct appeal with the mandatory review

provisions of S.C. Code Ann. § 16-3-25 (1985). We affirm.

FACTS

A public defender and a private attorney were appointed to

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represent appellant. A hearing was held to determine whether appellant was

competent to stand trial. Judge Howard concluded after the hearing that

appellant was competent to stand trial. Subsequently, appellant requested

to represent himself. After a hearing, the trial judge found appellant's

request for self-representation was freely and voluntarily made. The private

attorney was relieved of representation and the public defender was

appointed to serve as standby counsel. Appellant represented himself during

the guilt phase and waived his right to testify. The jury found him guilty of

both murders.

Before the penalty phase began, appellant sought to change his

relationship with standby counsel such that appellant would give the opening

statement and counsel would continue. Appellant claimed he would be too

emotional to cross-examine the victims' family. The trial judge refused to

appoint counsel because it was too late in the proceeding and counsel would

be unable to adequately prepare on short notice. The judge concluded that

appellant was not entitled to either the appointment of counsel or to have

standby counsel cross-examine the victim-impact witnesses. Standby counsel

objected on the basis that appellant was not competent to represent himself

at sentencing and asked to be appointed. The trial judge declined to appoint

any counsel for appellant at sentencing since appellant had waived his right

to counsel. At the conclusion of the penalty phase, the jury recommended

and the judge sentenced appellant to death for both murders.

ISSUES

I. Was it error to find appellant competent to stand trial

and waive his right to counsel?

II. Was it error to allow appellant's statement into evidence?

III. Was it error to refuse to appoint counsel to represent

appellant at sentencing?

IV. Was it error to fail to obtain a waiver of appellant's right

to testify at the sentencing phase?

DISCUSSION

I. Appellant argues that the trial court erred in finding him

competent to stand trial and waive his right to counsel. We disagree.

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The test for determining whether a criminal defendant is

competent to stand trial is "whether he has sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding

and whether he has a rational as well as a factual understanding of the

proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S.Ct.

788, 4 L.Ed.2d 824 (1960). The defendant bears the burden of proving his

incompetence by a preponderance of the evidence. State v. Nance, 320 S.C.

501, 466 S.E.2d 349, cert. denied, 116 S.Ct. 2566 (1996). The test is not

whether the defendant is actually cooperating with his lawyer, but rather if

he has the mental capacity to do so. State v. Bell, 293 S.C. 391, 360 S.E.2d

706 (1987), cert. denied, 484 U.S. 1020 (1988). The trial court's

determination of competency will be upheld if it has evidentiary support and

is not against the preponderance of the evidence. State v. Nance, supra.

Dr. Behrmann examined appellant during his two month

hospitalization at Hall Institute. Dr. Behrmann concluded that within a

reasonable degree of medical certainty, appellant was competent to stand trial

and had the ability to understand the nature of criminal proceedings. In Dr.

Behrmann's opinion, appellant had the ability to understand the charges

against him and to assist his counsel. Dr. Behrmann did not find appellant

to be suffering from paranoia but concluded his failure to cooperate with

appointed counsel was voluntary. Dr. Behrmann subsequently examined

appellant for about forty-five minutes several months prior to trial. In Dr.

Behrmann's opinion, appellant continued to be competent to stand trial. He

concluded that appellant had a factual knowledge of the charges against him,

the potential penalty he faced and his options in pleading. Dr. Behnnann did

not find a mental illness or that appellant's decisions arose out of a

delusional process. During appellant's hospitalization, staff observed that he

was able to interact with staff and other patients normally and did not

demonstrate a guarded, distrustful, suspicious kind of behavior normally

expected from a person with a paranoid process.

The trial judge concluded that appellant had the factual

understanding of the charges against him and a rational understanding of the

proceedings and how the court works, and the roles of the various

participants. The judge was convinced by the medical reports and testimony

that appellant does not have a pervasive paranoia or paranoid behavior that

affects his ability to interact and to cooperate. The judge found appellant

had the present ability to rationally understand the proceedings and the

ability to consult with his attorneys with a reasonable degree of rational

understanding. His findings and conclusions were based on the forensic unit

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staffing report and the testimony of Dr. Behrmann and associates. The

judge also found persuasive the staffing entries which showed appellant's

ability to cooperate. In view of the evidentiary support in the record, we

uphold the trial court's determination of competency. State v. Nance, supra.

After the court found appellant competent to stand trial, appellant

moved to waive representation by appointed counsel and sought to represent

himself The trial judge questioned appellant in camera about his knowledge

of the proceedings and what it would mean to represent himself rather than

have representation by two capital trial qualified attorneys. The trial judge

warned appellant of the dangers and disadvantages of self-representation.

Appellant stated that he understood what he was waiving but still chose to

waive counsel.

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.

2525, 45 L.Ed.2d 562 (1975). 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." Id. 422 U.S. at

834. 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), cert.

denied, 502 U.S. 1103 (1992). 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, supra. The ultimate test of whether a defendant has made

a knowing and intelligent waiver of the right to counsel is the defendant's

understanding. Graves v. State, 309 S.C. 307, 422 S.E.2d 125 (1992). The

only relevant inquiry is whether the defendant has made a knowing and

intelligent waiver of the right to counsel. Faretta, supra. There is no

prohibition against a capital defendant knowingly and intelligently waiving

the right to counsel. State v. Brewer, 328 S.C. 117, 492 S.E.2d 97 (1997).

A decision can be made intelligently, with an understanding of the

consequences, without the decision itself being a wise one. Id.

The trial judge held several hearings to determine whether

appellant understood what it meant to represent himself and to waive the

appointment of experienced counsel. The judge informed appellant of the

dangers and disadvantages of self-representation. Appellant continued to

assert that he understood what he was waiving and demonstrated to the

judge that he was making a knowing, intelligent perhaps unwise, voluntary

decision to represent himself. Accordingly, the trial court did not err in

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accepting appellant's waiver of his right to counsel.

II. Appellant contends the trial court erred in allowing his

statement into evidence where his invocation of the right to remain silent

was not honored. We disagree.

An exculpatory or inculpatory statement obtained as a result of

custodial interrogation is inadmissible unless the person was advised of and

voluntarily waived his rights under Miranda v. Arizona.1 If a defendant was

advised of his Miranda rights, but nevertheless chose to make a statement,

the "burden is on the State to prove by a preponderance of the evidence that

his rights were voluntarily waived." State v. Kennedy, 325 S.C. 295, 479

S.E.2d 838 (1996). Law Enforcement officers are not required to terminate

an interrogation unless there is an unambiguous invocation of the right to

remain silent. Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129

L.Ed.2d 362 (1994).

The State asserts that appellant did not indicate a clear,

consistent and unequivocal expression of a desire to remain silent and

terminate questioning. Detectives Coaxum and Hale testified that they read

appellant his Miranda rights and obtained appellant's signature on the

advisement of rights form. Appellant initially failed to respond to questions.

The detectives talked with appellant for about 20 to 30 minutes. Detective

Coaxum continued talking to appellant after Detective Hale left the room.

During that time appellant indicated involvement in the murders. Detective

Hale returned to the room and appellant continued discussing facts

concerning the murder and did not invoke his right to silence. Appellant

agreed to cooperate with the officers in finding the murder weapon. After

returning to the sheriffs office, a written statement was made by Detective

Hale based on appellant's verbal statement. The statement was read to

appellant and signed by him. The officers testified that appellant did not ask

for an attorney. Detective Hale stated that the only time the subject of an

attorney came up was when appellant made a "vague statement" to the effect

that he wondered who would be his attorney.

The trial judge concluded the State had shown by a

preponderance of the evidence that the statement was knowingly,

intelligently, and voluntarily given after waiver of his rights and appellant

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was accorded all of the procedural safeguards required under Miranda v.

Arizona. The trial judge's determination of the voluntariness will not be

disturbed unless so manifestly erroneous as to show an abuse of discretion

amounting to an error of law. State v. Kennedy, supra. The trial court did

not err in denying the motion to suppress as the State met its burden of

showing that appellant's statement was voluntarily and freely given.

III. Appellant asserts the trial court erred in refusing to appoint

standby counsel to represent him at sentencing. We disagree.

At the conclusion of the guilt phase, appellant asked to have

standby counsel takeover and cross-examine the state's witnesses after

appellant made the opening argument. The trial judge interpreted the

request as asking the court to appoint counsel to undertake representation

of appellant. Standby counsel stated that while he would do his best to

prepare to cross-examine witnesses, he was not prepared to represent

appellant during the sentencing phase. Standby counsel stated he had not

investigated the case in reference to victim impact evidence or mitigation.

The court concluded that it would be a hybrid form of

representation placing standby counsel in the position of not being fully

prepared to cross-examine witnesses without delaying the trial. The court

found it would delay the proceeding because counsel would need time to

prepare and the continued sequestration of the jurors would not be possible.

The court declined to appoint counsel but allowed counsel to sit beside

appellant as standby counsel and aid appellant to the extent he desired.

A trial judge is not required to permit hybrid representation, i.e.

representation partially pro se and partially by counsel. McKaskle v.

Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); State v.

Sanders, 269 S.C. 215, 237 S.E.2d 53 (1977). A criminal defendant may

initially assert his right to self-representation for reasons that later prove

unsound. Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989). While the right

to counsel once waived is no longer absolute, there is a strong presumption

that a defendant's post-trial request for the assistance of counsel should not

be refused. Id. The court in Menefield. found that appellant was entitled to

counsel after waiving his right prior to sentencing. The court noted however,

there are times when the criminal justice system would be poorly served by

allowing the defendant to reverse his waiver at the last minute particularly

where delay would result. Further, the court noted the distinction between

delay on the eve of trial and delay at the time of a post-trial hearing.

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Menefield, supra.

In United States v. Holmen, 586 F.2d 322 (4th Cir. 1978) the

court found it was error not to allow appellant to withdraw his waiver of

counsel and have counsel appointed at the sentencing stage. However, in

Holmen, the sentencing stage was a separate proceeding unlike the continued

proceeding in the instant case involving a sequestered jury. The trial court

here was faced with allowing standby counsel to step in and cross-examine

the witnesses on less than twenty-four hours preparation. Judge Howard

was concerned with appellant being entitled to effective assistance of counsel.

McMann v. Richardson., 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763

(1970)(the right to counsel includes the right to effective assistance of

counsel). The trial judge did not err in denying appellant's request to have

standby counsel represent him on the eve of sentencing.

IV. Appellant contends the trial court erred in failing to obtain

a waiver of his right to testify at the sentencing phase. We disagree.

During the guilt phase, the trial judge informed appellant at

length of his right to testify and obtained a waiver on the record of his

intention not to testify during that phase. The judge did not obtain a specific

waiver of the right to testify during the penalty phase. However, appellant

indicated that he did not intend to testify during the sentencing phase. A

capital defendant has the right to testify at the sentencing phase. State v.

Ray, 310 S.C. 431, 427 S.E.2d 171 (1993). The waiver of a constitutional or

statutory right requires a showing on the record that the defendant made the

waiver knowingly and intelligently. Id. 427 at 174. The references in the

record demonstrate that appellant clearly waived his right to testify.

CONCLUSION

Appellant's convictions and sentences are affirmed. We have

conducted the proportionality review pursuant to S.C. Code Ann. § 16-3-25

(1985). The evidence indicates the sentences were not the result of passion,

prejudice, or any other arbitrary factor, the evidence supports the finding of

the aggravating circumstance; and the sentences are not disproportionate to

that imposed in similar cases. State v. Williams, 321 S.C. 327, 468 S.E.2d

626 (1996).

AFFIRMED.

TOAL, MOORE, WALLER and BURNETT, JJ. , concur.

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