case involves, first, whether Michael Burns was improperly
denied his right to waive counsel and represent himself at
trial and, second, whether he may assert a violation of the
confrontation clause for the first time on appeal. The trial
court judge denied Burns's request to proceed pro se
based on a lack of understanding of the nature of the charges
against him where he indicated that the criminal charges did
not pertain to him and that he had not entered into a
contract such that the State could bring charges against him.
Burns claimed on appeal that his right to confrontation was
violated when statements of his victim came in as evidence
through testimony of her neighbor and the responding police
officer, although she herself did not testify. Burns did not
object to the testimony on confrontation grounds at trial.
The Court of Appeals held that the trial court judge did not
abuse her discretion in denying Burns's request to
proceed pro se and that Burns waived his right to assert a
confrontation violation when he did not object at trial. We
affirm the Court of Appeals.
AND PROCEDURAL HISTORY
State charged Michael Burns with assault in the second
degree- domestic violence, and felony violation of a no
contact order-domestic violence, for strangling Christina
Jackson while a no contact order was in effect. Clerk's
Papers (CP) at 25-27.
of his first court appearances, Burns said, "I just want
to request new legal representation" because "I
haven't been represented the way I see fit."
Verbatim Report of Proceedings (VRP) (Dec. 10, 2015) at 17.
The trial court informed Burns that he was not entitled to a
public defender of his choosing.
numerous requests to proceed pro se, the court held a hearing
on January 13, 2016 regarding Burns's request to
represent himself. At the hearing Burns stated,
I would like to go pro se for reasons other than just
becoming aware of certain things. And furthermore, I just,
you know, I'd rather handle my own business considering
certain matters especially when I've gotten lied to,
threatened, and coerced into certain things that I wasn't
aware of at the time but I am aware of now. So I would like
to go pro se because of those certain aspects of things so.
VRP (Jan. 13, 2016) at 2-3. The court then began to explain
the nature of the charges in all three of Burns's pending
cases. Interrupting this explanation, Burns stated,
"These matters being spoken of do not pertain to me,
okay?" and the following exchange occurred:
THE COURT: You say these charges don't pertain to you. It
looks to me like they do. You've been charged and
we're here in court, why don't they pertain to you in
MR. BURNS: Because they don't. I'm not a corporate
entity, I'm a human being, and I'm not contracted
into your place of business. Furthermore, I will not be
contracted in your place of business, okay.
THE COURT: Well, the law doesn't require any contract if
a person is accused of a crime, the person is tried in a
court whether they agree to that or not. And so you've
been charged with some serious crimes and if there is a trial
and you're convicted of those crimes you'll be
serving sentences for those crimes. It's my job to make
sure that you understand exactly how serious those sentences
could be and that's why I'm going through all of the
crimes and all of the potential sentences.
MR. BURNS: Ma'am, I understand completely what you're
talking about. I understand that there is some, I, you know,
somebody could be charged and sentenced to a serious amount
of time for those matters, but like I said, they do not
pertain to me and I'm not going to allow this. I would
like to relieve counsel of their duties so I can become pro
VRP(Jan. 13, 2016) at 6-7.
court continued explaining the pending charges against Burns
and the potential sentences and fines associated with all
three cases. When asked about his education, Burns stated,
"I don't think that really matters." VRP (Jan.
13, 2016) at 11. When the court inquired further, Burns said,
"I think I'm highly educated enough to represent
myself because other than maybe a little looking into a few
things about the law I think I can handle it because it's
mostly just keeping your composure and acting." VRP
(Jan. 13, 2016) at 11. The court explained that Burns would
be held to the same standards as the prosecution and would
have to abide by the rules of procedure and evidence. Burns
I completely understand everything that I'm up against,
okay, Your Honor? I completely understand what is up, what
sentencing may occur, all of that stuff I completely
understand all of that and it doesn't phase [sic] me a
bit. And, you know, I just, I made a mistake on asking for a
public defender because I, I have a right to be represented
as I see fit and the only person that's going to
represent me as I see fit is me so that's why I'm
here today, Your Honor.
VRP (Jan. 13, 2016) at 13.
court then inquired into the alleged threats and coercion
that Burns referred to at the beginning of the hearing, and
the following exchange occurred:
MR. BURNS: My lawyer[S]he has tried to get me to sign this
contract that I'm not going to, I'm not going to
sign. I'm not going to - and furthermore, her and [the
prosecutor] have coerced me into opening a contract without
my knowledge or consent and I shot that down.
THE COURT: I don't know what you are referring to as a
MR. BURNS: Well, it is a contract.
THE COURT: Well, what is it? What are you talking about?
MR. BURNS: It's a contracts [sic] in the corporation and
I'm not buying.
THE COURT: What's the corporation that you're
MR. BURNS: It's, the corporation is the United States,
Your Honor, and I am not a citizen of that corporation. So I
am not, I'm here to stand here today and tell you that I
want to represent myself as pro se and I'm not buying
into the company, okay? And I demand --
THE COURT: Mr. Burns, do you believe there's a
corporation involved in the prosecution of these charges?
MR. BURNS: Yes, there always is.
VRP (Jan. 13, 2016) at 14-15.
point, the court and the attorneys had a discussion regarding
Burns's competency to stand trial. Burns's attorney
indicated she did not see a reason to get a competency
evaluation. The prosecutor described Burns's past
requests to proceed pro se and indicated, while he was not
asking for a competency evaluation, he was concerned as to
whether Burns could make a knowing, voluntary, and
intelligent waiver of counsel based on Burns's
representations to the court.
again indicated, "I would love to waive counsel
period." VRP (Jan. 13, 2016) at 19. Then the following
THE COURT: I understand that. The question for me, as [the
prosecutor] pointed out, is whether you're able to do
that with full understanding of the situation that you're
in. And, frankly, I am concerned that you don't seem to
have a full understanding of the situation you're in
because just observing you you've not, you've been
very impatient for me to finish describing the charges and
potential penalty to you, you've indicated that
doesn't matter to you.
MR. BURNS: Oh, it matters.
THE COURT: You also indicated a belief that there is a
corporation involved here that you were required to be
involved with and that your not being involved with the
corporation has something to do with your, with the fact that
you're going to have to go to trial. And you've said
that you don't believe the charges against you apply to
you. I've tried to explain that they very much apply to
MR. BURNS: It's not a case, Your Honor.
THE COURT: You have trial in those cases because you've
been charged with these crimes. So all in all I'm
concerned about whether you understand how the criminal
system works and what the consequences of criminal charges
can be. And if you don't understand how that legal system
works and what the results of being charged with a crime can
be, you're going to need legal help.
MR. BURNS: Your Honor, from what I just said I, my
understanding is that Mr. Burns is contracted into two cases
that have been globalized into one matter, okay. There is a
matter at your fingertips that is not a case yet, I have
rejected the contract for it to become a case and ~
VRP (Jan. 13, 2016) at 19-21.
point, the court cut Burns off and again attempted to explain
the three separate cases against Burns. The judge then denied
Burns's motion to proceed pro se explaining, "I
don't think that Mr. Burns understands the nature of the
charges and the seriousness of the situation" and
"Mr. Burns, is not in my view competent to represent
himself." VRP (Jan. 13, 2016) at 22. The judge further
indicated she would leave any competency concerns to counsel.
brief recess off the record, Burns was removed from the
courtroom because of his disruptive behavior in reaction to
the denial of the motion. The parties then discussed a
written order, and the judge indicated she could not find
that Burns knew enough about the charges against him to make
a knowing waiver of his right to counsel. The court then
filed a written order, which stated that the court was
concerned Burns did not appreciate the nature of the charges
against him and that the court was unable to find he could
knowingly and voluntarily waive his right to counsel.
trial court held another motion hearing on the issue of
representation on May 3, 2016. The court again denied the
motion, again based on Burns not knowingly and intelligently
waiving his right to counsel ...