United States District Court, N.D. Illinois, Eastern Division
November 3, 2005.
UNITED STATES OF AMERICA,
The opinion of the court was delivered by: SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Defendant Derrick Mosley's
("Mosley") motion for leave to proceed at trial pro se. This
case was set for trial on November 7, 2005. At the pre-trial
hearing on November 3, 2005, Mosley's counsel, Mr. Petro
("Petro"), informed the court that Mosley desired to proceed pro
se at trial. Afterwards, on November 3, 2005, the court
conducted a hearing in accordance with Faretta v. California,
422 U.S. 806 (1975).
The Seventh Circuit has stated that in order to determine
whether a criminal defendant can proceed pro se, a court needs
to decide whether the "defendant's decision to proceed pro se
was "knowing and informed." In making the determination, the
court must: "(1) . . . conduct a formal hearing into the defendant's decision to represent himself; (2) [consider] other
evidence in the record that establishes whether the defendant
understood the dangers and disadvantages of self-representation;
(3) [consider] the background and experience of the defendant;
and (4) [consider] the context of the defendant's decision to
waive his right to counsel." United States v. Todd,
424 F.3d 525, 530-31 (7th Cir. 2005).
At the hearing, the court attempted to advise Mosley of his
right to counsel and the ramifications of proceeding pro se.
Throughout the hearing, Mosley was argumentative, interrupted the
court, and attempted to interject side issues in order to avoid
directly responding to the court's questions. Mosley's conduct
during the hearing is consistent with his prior conduct in this
matter and he has been argumentative and disruptive in
proceedings before the court on prior occasions. Mosley also
attempted to avoid answering questions at the hearing and to
delay the proceedings, which is consistent with his prior conduct
regarding his several requests for new counsel that resulted in
extensions of the trial. Mosley's current counsel, attorney Petro
is his seventh counsel in this case. On October 26, 2005, this
court denied Petro's motion to withdraw. During the hearing on
the request of Mosley to proceed pro se, Mosley equivocated our
whether he is waiving his right to counsel and mentioned that he
might get new retained counsel, thereby attempting to circumvent
the court's order denying Petro's motion to withdraw and delay
the trial once again.
Mosley also was disrespectful to the court, referring to the
court at one point as "obtuse." A criminal defendant's "right to self-representation
is not absolute." United States v. Brock, 159 F.3d 1077, 1079
(7th Cir. 1998). A criminal defendant is not entitled to
proceed pro se if the defendant "deliberately engages in
serious and obstructionist misconduct." Id. (stating that
"trial judges confronted with disruptive, contumacious,
stubbornly defiant defendants must be given sufficient discretion
to meet the circumstances of each case"). The Seventh Circuit has
explained that "savvy criminal defendants have learned to
manipulate the system by withdrawing requests for
self-representation at the eleventh hour (or, as here, in
midstream) in order to cause delay." United States v. Tolliver,
937 F.2d 1183, 1187 (7th Cir. 1991). A trial court that is
presented with such a "savy criminal defendant" "[o]n one hand
. . . is hard-pressed to deny the aid of counsel to a defendant
who initially seeks to represent himself but later declares
himself legally incompetent to proceed any further, . . . and on
the other hand, the last minute grant of a continuance can cause
serious inconvenience to judge, jury, opposing counsel,
witnesses, and other litigants." Id. Based upon the record and
Mosley's testimony at the hearing, it is clear that Mosley has
consistently been disruptive and has obstructed the proceedings.
The court has already extended the trial date twice at Mosley's
During the hearing, while the court advised Mosley of the
ramifications of proceeding pro se, Mosley indicated his desire
to have the assistance of an advisor to assist him during the
trial. Later in the hearing, Mosley indicated his desire to have one or more legal counsel to assist him during the trial. The
court explained to Mosley the problems associated with serving as
his own counsel and the problems associated with calling himself
as a witness if he decides to take the stand. Mosley stated that
if that occurs, he would hope to have legal counsel to ask him
questions on the stand, thereby acknowledging that he seeks
co-counsel to assist in the questioning, rather than merely a
detached advisor. The Seventh Circuit has made it clear that
"hybrid representation, in which a defendant serves as co-counsel
during the course of trial" is "prohibited." United States v.
Kosmel, 272 F.3d 501, 506 (7th Cir. 2001). Mosley indicated
at the hearing that on the one hand he wanted to proceed pro se
and conduct his defense at trial on his own, but then be able to
call upon legal counsel to assist him at trial when he desires.
Such a hybrid form of representation is not warranted in this
action and Mosley is not entitled to such a form of
representation. The Seventh Circuit has made it clear that
"[r]epresentation by counsel and self-representation are mutually
exclusive entitlements, . . . [and] the sixth amendment does not
create a right to hybrid representation." Cain v. Peters,
972 F.2d 748, 750 (7th Cir. 1992). Therefore, Mosley indicated on
his own at trial that the type of representation that he desires
is a hybrid form of representation that is not allowed.
Finally, "a demand to proceed pro se must be unequivocal."
United States v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988).
During the hearing, when the court attempted to ascertain whether
Mosley's request to proceed pro se was voluntary and whether it was Mosley's desire to waive his right to counsel,
Mosley refused to provide a direct answer in the affirmative or
negative. Instead, he interjected other issues that were not
before the court and made accusations against his appointed
counsel, others, and the court. After the court made several
attempts to explain to Mosley that the court needed to find out
if Mosley was voluntarily waiving his right to counsel, Mosley
refused to give a direct answer. Mosley failed to unequivocally
make a demand to proceed pro se. In conclusion, in addition to
all of the above analysis, the undisputed fact is that Mosley
requested to proceed pro se, yet at the conclusion of the
hearing he refused to indicate whether he was waiving his right
to counsel. Therefore, based upon all of the above, we deny
Mosley's request to proceed pro se at trial.
Based on the foregoing analysis, we deny Mosley's motion for
leave to proceed pro se.
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