CRIMINAL PROCEDURE – Faretta Rule and waiver of counsel to represent themselves: Nicholas L. Depp v. Commonwealth (SC 2/19/2009)

Nicholas L. Depp v. Commonwealth
2007-SC-000575-MR 2/19/2009
Opinion by Justice Noble; all sitting.

After a trial where he represented himself, Depp was convicted of first-degree rape and first-degree sodomy. On appeal Depp argued that the trial court did not follow the procedures set forth by the U.S. Supreme Court in Faretta concerning criminal defendants who wish to waive their right to counsel and represent themselves. Specifically, Depp argued that he was entitled to reversal because the trial court did not explicitly state on the record that Depp’s waiver was “knowing and voluntary.” In the wake of Faretta, the Kentucky Supreme Court established a bright-line rule in Hill, stating the trial court must hold an evidentiary hearing at which 1) the defendant must testify that his choice to represent himself is voluntary, knowing. and intelligent; 2) the trial court must warn the defendant of the dangers of relinquishing the benefits of an attorney; and 3) the trial court must make a finding on the record that the waiver is done voluntarily, knowingly. and intelligently. The Supreme Court affirmed the convictions, holding that the requirements of Hill notwithstanding, an appellate court must review the record to determine if the waiver was actually voluntary, knowing and intelligent and not rely upon “magic words” scripted for trial courts. “To the extent Hill purports to require a rigid, formulaic review of waiver of counsel, it is modified to comport with common sense,” stated the majority, adding that “to require that trial courts adhere to a script or be found in error is to elevate form over substance.” The Court also rejected Depp’s argument that he did not accept standby counsel because the trial court erroneously led him to believe that if he did, he would be prohibited from crossexamining witnesses personally. Chief Justice Minton (joined by Justice Schroder) dissented, disagreeing with the majority’s conclusion that the record supported the trial court’s implicit finding that Depp’s waiver of counsel was voluntary, knowing and intelligent. The minority stated that the trial court erred when it informed Depp that he would not be able to personally conduct cross-examination of witnesses. The minority noted that under Partin a defendant, following an evidentiary hearing, may be precluded from cross-examination of victim witnesses, but the defendant can still participate by preparing questions. Furthermore, Partin does not prevent defendants from cross-examining non-victim witnesses. The minority also expressed their disapproval of the abrogation of Hill, noting that criminal defendants in Kentucky enjoy more expansive rights in the area of self-representation under Section 11 of the Kentucky Constitution than those provided by the Sixth Amendment to the U.S. Constitution

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