State v. Dvorak1/19/2000
aware of the dangers and disadvantages of self-representation so the record establishes the choice is made with eyes open. Faretta, at 835.
[ ] An unavoidable tension exists between the right to counsel and the right to self-representation, because asserting one right necessitates a waiver of the other. In recent years, we have become increasingly involved with the tension between those mutually exclusive rights. In Harmon, 1997 ND 233, 23 n.1, 575 N.W.2d 635, we acknowledged increasing problems with defendants who proceed pro se, and suggested " rial courts should be careful to make specific on-the-record determinations about whether a defendant unequivocally, knowingly, and intelligently waived either his right to counsel or self-representation. Such a determination should make clear the dangers and disadvantages of self-representation." Although we have not required trial courts to engage in a specific colloquy with a defendant who appears pro se, we prefer that trial courts eliminate any ambiguity about a waiver by making a specific on-the-record decision the defendant voluntarily, knowingly, and intelligently waived the right to counsel. Rockwell, 1999 ND 125, 15, 597 N.W.2d 406; Poitra, 1998 ND 88, 8, 578 N.W.2d 121; Harmon, at 22. Our preference for an on-the-record determination parallels the well-established principle that a waiver of the right to counsel will not be presumed from a silent record and courts will indulge every reasonable presumption against waiver. Carnley v. Cochran, 369 U.S. 506, 516 (1962); Johnson v. Zerbst, 304 U.S. 458, 464 (1938); State v. Gustafson, 278 N.W.2d 358, 362 (N.D. 1979). See State v. Wilson, 488 N.W.2d 618, 620 (N.D. 1992) (stating similar principle for waiver of right to new trial); State v. Kranz, 353 N.W.2d 748, 752 (N.D. 1984) (stating similar principle for waiver of right to jury trial).
[ ] We have applied a two-step inquiry to analyze a criminal defendant's waiver of the right to counsel and decision to proceed pro se: (1) whether the defendant's waiver of the right to counsel was voluntary; and (2) whether the defendant's waiver was knowing and intelligent. Rockwell, 1999 ND 125, 9, 597 N.W.2d 406; Harmon, 1997 ND 233, 22, 575 N.W.2d 635. See Patterson v. Illinois, 487 U.S. 285, 292 n.4 (1988) (stating waiver of right to counsel must be voluntary and knowing and intelligent).
A.
[ ] In Harmon, 1997 ND 233 at 15, 21, 575 N.W.2d 635, we rejected an argument the record must show an unequivocal statement indicating the defendant's desire to proceed pro se, and we concluded the defendant's conduct may be the functional equivalent of a voluntary waiver of the right to counsel. See also Rockwell, 1999 ND 125, 14, 597 N.W.2d 406. In Rockwell, at 14, and Harmon, at 21, we concluded the defendants' continued requests for a new court-appointed attorney after the trial court clearly denied an initial request was the functional equivalent of a voluntary waiver of the right to counsel.
[ ] Here, Dvorak was represented during different stages of this proceeding by both appointed and retained counsel, and the court ultimately approved the withdrawal of both his appointed and retained counsel. Dvorak received a continuance but failed to appear for the rescheduled trial, requiring a bench warrant for his arrest. At the January 28, 1999 status conference, the trial court noted Dvorak was representing himself and, after granting Dvorak another continuance, unequivocally indicated there would be no further continuances and the case would proceed to trial in March. After receiving the court's admonition that "we're stuck with [the March 1999 trial] date and don't expect to come in at the last minute and ask
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