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BUSH v. STATE12/1/1995
la.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985), held that our system for compensating appointed attorneys does not violate principles of due process or equal protection. It also held in Sparks v. Parker, 368 So.2d 528 (Ala. 1979), appeal dismissed, 444 U.S. 803, 100 S.Ct. 22, 62 L.Ed.2d 16 (1979), that § 15-12-21 does not constitute an unlawful taking of property in violation of the Fifth Amendment. We also find no violation of the right to counsel and of the protection against cruel and unusual punishment. We find no violation here of either the federal or state constitution. The record reflects that the appellant has been ably represented at trial and on appeal by experienced counsel. It does not indicate in any way that counsel's efforts were deterred or diminished by the fees and expenses allowed by the statute. In fact, the appellant's counsel illustrates the thoroughness with which he prepared for and represented the appellant by the following statement in his brief:
"Because [the appellant] was being tried for the third time for a 1981 offense, defense counsel was obligated to review 10 years' worth of proceedings including the transcripts of two previous trials, and to locate many documents that had long since been lost or misplaced, and interview numerous witnesses who had moved or disappeared."
XI.
The appellant contends that the trial court erred in denying his motion for
leave to participate as co-counsel at his trial. Relying on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), he argues that the trial court's refusal to allow him to act as co-counsel abridged his constitutional right to serve as his own counsel. Faretta v. California recognizes that an accused has a Sixth Amendment right to conduct his own defense in a criminal trial. Although a defendant has a Sixth Amendment right to be represented by counsel or to represent himself, he does not have the constitutional right to hybrid representation. Holland v. State, 615 So.2d 1313 (Ala. Cr. App. 1993); Christianson v. State, 601 So.2d 512 (Ala. Cr. App. 1992), overruled on other grounds, Ex parte Thomas, 659 So.2d 3 (Ala. 1994). The decision to permit a defendant to serve as co-counsel rests in the sound discretion of the trial court. United States v. Mills, 704 F.2d 1553 (11th Cir. 1983); Hunt v. State, 659 So.2d 933 (Ala. Cr. App. 1994), aff'd, 659 So.2d 960 (Ala.), cert. denied, ___ U.S. ___, 116 S.Ct. 215, 133 L.Ed.2d 146 (1995).
Contrary to the appellant's contention, the record reveals that the trial court did not refuse to allow the appellant to act as co-counsel, but granted his motion. The record shows the following:
"THE COURT: One other thing. I notice on Motion to Allow Accused to Participate as Trial Counsel, I didn't write on that. We discussed that he would not be permitted to make any statement during the guilt phase. I think I granted it otherwise.
"MR. GLASSROTH [defense counsel]: I believe that's what you did.
"THE COURT: Granted except as to statement of defendant not under oath.
"MR. GLASSROTH: Naturally, Your Honor, we object.
"THE COURT: Wait a minute. I'm not through ruling yet. Or subject to cross-examination. Any statement you want him to make to the jury, I'll consider it. He's entitled to participate as counsel any way he wants to other than making a statement that wouldn't be under oath, and making a statement that wouldn't be subject to cross-examination. However, if you want to give me in writing a statement that he proposes to make, I'll review that and get the State's response to it and make additional rulings at that time.
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