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Wash v. State

Court of Appeals of Mississippi

November 12, 2013

Gordon O'Neal WASH a/k/a Gordon Wash, Appellant
STATE of Mississippi, Appellee.

Page 248

Office of State Public Defender by W. Daniel Hinchcliff, attorney for appellant.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.


Page 249


¶ 1. During his trial for possession of a weapon by a convicted felon and simple assault on a peace officer, Gordon Wash became dissatisfied with his attorney and decided to represent himself. The trial court allowed him to do so, with the assistance of his court-appointed counsel. Wash was found guilty on Count I, possession of a weapon by a convicted felon, and guilty on Count II, but of the lesser offense of disorderly conduct. Wash now appeals, arguing he is entitled to a new trial because (1) the trial court failed to make an on-the-record determination as to whether he knowingly and intelligently waived his right to counsel; and (2) his counsel, who assisted him during trial, was ineffective. Finding no reversible error, we affirm.


¶ 2. On September 2, 2008, Wash and his then-girlfriend Monica Nix got into an argument. Nix decided to leave the house with her two children, one of whom was Wash's daughter. As Nix got into her car, she " heard a pow," and saw " a little steam" rising from the hood of her car. Although Nix did not see Wash shoot the car, Wash and his brother were the only other people outside the house with her, and Nix had only argued with Wash. Nix testified that she saw Wash holding a gun while they were inside the residence, and that Wash had been drinking. Once she calmed down, Nix got into her car and went to a friend's house. Wash followed, and the altercation continued. Nix left the children with the friend, and went to Sebaster's Store in Hurley, Mississippi. Wash again followed.

¶ 3. Deputy Gene Starr with the Jackson County Sheriff's Department responded to a call regarding potential domestic violence at Sebaster's Store. As he arrived, a man came out of the store and quickly walked in the opposite direction after seeing Deputy Starr. Deputy Starr testified that " about five seconds later," a female came out of the store, stating: " That MF just shot at me." She pointed at Wash, and told Deputy Starr that Wash " had a gun in his pants." Deputy Starr pursued Wash, who ran toward the woods. Deputy Starr caught up to Wash, and a struggle ensued. Deputy Starr sprayed Wash with pepper spray. He then threatened to use his Taser, at which point Wash surrendered. Deputy Starr did not find a gun on Wash, but a nine-millimeter handgun was found on the ground near Sebaster's Store. Two .38-caliber bullets were found in Wash's sock.

¶ 4. Wash was indicted on April 15, 2009, on charges of possession of a weapon by a convicted felon and simple assault on a peace officer. His trial was set to begin on August 18, 2009. When Wash failed to appear on this date, the assistant public defender appointed to represent Wash informed the trial court that Wash had gone " to find him a new lawyer." A bench warrant was issued for Wash's arrest, and the trial was rescheduled. Wash failed to appear for trial on September 4, 2009, and again on October 9, 2009. After various delays, Wash appeared in court on October 5, 2010. The trial was delayed again, pending a mental evaluation. Psychologist Dr. Stefan Massong attempted to conduct the evaluation, but Wash refused to participate. Wash explained that the scheduled evaluation " went past [his] trial date," and it was simply a way for his attorneys to continue " detaining" him. The judge explained that the evaluation was not past his trial date, and the court was detaining him, not his attorneys. Wash insisted that the evaluation was unnecessary and requested a trial date. His request was granted, and his two-day trial began on

Page 250

February 7, 2012, in the Jackson County Circuit Court. Wash represented himself, with the assistance of the court-appointed public defender. He was found guilty of possession of a weapon by a convicted felon and disorderly conduct. He was sentenced to ten years for the possession charge and six months for the disorderly-conduct charge, all in the custody of the Mississippi Department of Corrections. He was also ordered to pay a $1,000 fine on each count. Wash's post-trial motions were denied, and he now appeals.


1. Whether the trial court erred in allowing Wash to represent himself.

a. Self-representation

¶ 5. Wash argues the trial court failed to ensure that he " knowingly and voluntarily" entered into self-representation under Uniform Rule of Circuit and County Court 8.05. Wash asserts that an on-the-record examination was especially needed in this case because of the prior order for a mental evaluation, which Wash refused to undergo. Because the right to self-representation is a constitutional guarantee under the Sixth Amendment, our standard of review is de novo. Hearn v. State, 3 So.3d 722, 732 (¶ 25) (Miss.2008).

¶ 6. On the day of trial, Wash appeared in court, represented by public defender Brice Kerr. After Kerr completed his opening statement on Wash's behalf, Wash asked the trial judge if he could represent himself. The jury was excused from the courtroom, and Wash explained that Kerr had refused to accept his theory of defense. Wash believed he could not be found guilty of being a felon in possession of a firearm since his prior felony was " old" and " nonviolent." Wash referenced a 1995 felony conviction for drug possession. [1] The judge explained that Wash's theory was incorrect, as Mississippi Code Annotated section 97-37-5 (Supp.2012) makes it unlawful for any convicted felon to possess a weapon. The judge then asked Wash what he wanted to do next. Wash first stated that he wanted another attorney because of Kerr's unwillingness to present his defense. Wash then argued he had a conflict of interest with Kerr due to a prior matter. The trial court found no merit to Wash's arguments, noting that Kerr was Wash's second court-appointed attorney, and that Wash could have hired his own counsel. Wash then moved for a change of venue. As there was no ground to change venue, the motion was denied. Wash then pled " no contest" to the charges. When the trial court explained that a no-contest plea was, in effect, a guilty plea, Wash changed his mind.

¶ 7. Wash continued to insist on self-representation. The judge conceded, and the following exchange occurred:

THE COURT: ... If you want to represent yourself, you have that right. I don't advise that you do that[,] but ...

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