State v. Tyner

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NOT DESIGNATED FOR PUBLICATION

No. 117,942

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GREGORY WAYNE TYNER,
Appellant.


MEMORANDUM OPINION

Appeal from Marshall District Court; EDWARD E. BOUKER, judge. Opinion filed June 8, 2018.
Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Laura E. Johnson-McNish, county attorney, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., MALONE, J., and STUTZMAN, S.J.

PER CURIAM: In Kansas, to represent a party in court you must be licensed to
practice law. Gregory Wayne Tyner asked the district court to allow his wife, Terri
Tyner, a nonlawyer, to represent him. The district court denied his request. Tyner claims
the denial of his motion violated his due process rights to have the person of his choice
represent him. We find no violation of Tyner's due process rights. We affirm.

Tyner and his wife, Terri, were both charged with four drug-related felony counts
and two misdemeanors. A jury found Tyner guilty of three drug-related felonies and two
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misdemeanors. The facts of the case are well known to the parties and need not be
restated.

Throughout the case, Tyner maintained he wished to represent himself. At the
pretrial hearing, the district court apprised Tyner of his rights and warned him of the risks
of representing himself. Tyner stated he wished to represent himself and did not want the
services of appointed or standby counsel. After further inquiry into Tyner's education and
background, the district court granted Tyner's request and terminated previously
appointed standby counsel's representation.

Tyner then filed a motion requesting the district court appoint Terri "as pro se
assistance in his defense to question witnesses, present evidence and perform all duties in
place of defendant as agreed upon in the case against Defendant." At the motion hearing,
the district court asked if Tyner had any legal basis for allowing a layperson to serve as
counsel. Tyner replied he had found no precedent, but he stated Terri was the only person
who knew the case as well as he did and he should be allowed to have someone to help
him. The district court denied the motion because there was no legal basis for Tyner's
request. The district court then repeated his warning to Tyner about the perils of self-
representation.

Tyner renewed his request at his jury trial to no avail, but the district court allowed
Terri to sit at the table with him to take notes and confer with him about the case. She
was not allowed to question any witnesses or Tyner in the case. Tyner again objected "on
the grounds that it will be a denial of counsel in some capacity."

Tyner appealed, raising one issue: Can a nonlawyer, even one's spouse, represent
someone in court? Of course not.

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The Sixth Amendment to the United States Constitution, as applied to the states
through the Fourteenth Amendment, guarantees the defendant a constitutional right to
represent himself in a state criminal trial. Faretta v. California, 422 U.S. 806, 818-19, 95
S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The violation of a person's constitutional right to
self-representation is subject to a de novo standard of review. State v. Carter, 284 Kan.
312, 318-19, 160 P.3d 457 (2007).


The Sixth Amendment guarantees only the right to counsel or the right to
represent oneself. It does not guarantee a defendant the right to choose anyone as their
counsel. Tyner provides no legal support for why his wife should be allowed to act as his
attorney. "It is well established that a criminal defendant has no constitutional right to
have an unlicensed attorney or lay person represent him. In particular, the Sixth
Amendment does not create a right to be represented by a non-attorney." State v. Matzke,
236 Kan. 833, 837, 696 P.2d 396 (1985).

The Supreme Court has recognized the importance of a fair opportunity to secure
counsel of the defendant's choosing, but also noted: "This 'fair opportunity' for the
defendant to secure counsel of choice has limits. A defendant has no right, for example,
to an attorney who is not a member of the bar." Luis v. United States, 578 U.S. __, 136 S.
Ct. 1083, 1089, 194 L. Ed. 2d 256 (2016). Because a defendant is not constitutionally
guaranteed representation by a layperson, there was no constitutional violation. The
district court did not err in refusing to let Tyner's wife serve as cocounsel.

Affirmed.