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State v. Dvorak1/19/2000
for another extension or continuance," Dvorak did not seek a second court-appointed counsel and appeared more than five weeks later without counsel at the March pretrial conference and the trial. The record reveals a pattern of conduct by Dvorak that can best be described as an attempt to avoid the trial of the charge against him. Perhaps Dvorak hoped the charge would be dismissed as he expressed at the March 8, 1999 pretrial conference where he indicated he wanted the case tried to the court "or dismissed."
[ ] Although we prefer the waiver of the right to counsel be expressed on the record, where there is a pattern of obstructing the legal process that waiver will seldom be acknowledged by the defendant. See People v. Arguello, 772 P.2d 87, 93 (Colo. 1989) (stating implied waiver of right to counsel by misconduct is more accurately described as forfeiture of right). Rather, the right to counsel becomes a means by which a defendant can further obstruct the legal process by rejecting court-appointed counsel or retaining and discharging private counsel, all the while insisting the desire for and right to counsel. Given the trial court's clear admonition, we conclude Dvorak's prior conduct and appearance at trial without counsel and without asking for a second court-appointed counsel constitutes the functional equivalent of a voluntary waiver of his right to counsel.
B.
[ ] We nevertheless must consider whether Dvorak's functional waiver was knowing and intelligent. A knowing and intelligent waiver requires a defendant be aware of the dangers and disadvantages of self-representation so the record establishes the defendant knows what he is doing and his choice is made with eyes open. Faretta, 422 U.S. at 835; Rockwell, 1999 ND 125, 8, 597 N.W.2d 406; Poitra, 1998 ND 88, 8, 578 N.W.2d 121; Wicks, 1998 ND 76, 18, 576 N.W.2d 518; Harmon, 1997 ND 233, 22, 575 N.W.2d 635. We have held whether a defendant knowingly and intelligently waives the right to counsel requires an examination of the record and the facts and circumstances of each case; a specific on-the-record warning is not an absolute necessity if the record shows the defendant had the required knowledge from other sources. Rockwell, at 15; Poitra, at 8, 11; Harmon, at 22. Under our cases, the test is not limited to what the trial court said or understood, the inquiry focuses on what the defendant understood. See 3 LaFave, Israel, and King, Criminal Procedure § 11.5(c), at 578-79 (2d ed. 1999).
[ ] In Rockwell, 1999 ND 125, 16, 597 N.W.2d 406, the defendant informed the trial court he wanted to represent himself and did not want court-appointed counsel. The trial court advised the defendant if he represented himself, he would be responsible for making his own statements, cross-examining the prosecution's witnesses, and calling his own witnesses for his defense. Id. The trial court also informed the defendant he would be expected to conform to rules and procedure of the court. Id. The defendant responded he would "do whatever the lawyer is supposed to do, [and be] responsible for the aspect of the lawyer." Id. We concluded the record established the defendant knowingly and intelligently waived his right to counsel. Id.
[ ] In Poitra, 1998 ND 88, 13, 578 N.W.2d 121, the trial court granted court-appointed counsel's motion to withdraw, and the defendant subsequently attended a pretrial conference without counsel and informed the court he had no other alternative than to represent himself because he was unable to secure a loan to hire an attorney. After hearing the defendant's explanation, the trial court made no further inquiry about the defendant's self-representation and did not inform h
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