[PHOTO CREDIT: James Hope, J.D.]
(The Publisher’s Favorite Articles from Past Issues, Mixed in with New Stuff.)
From his new home, situated within the walls of the Florida prison where he will be serving out a sentence of 13 years, 2 months and 8 days, Demetris A. Avants filed his own “Motion For Appointment of Counsel,” seeking the assistance of a court-appointed attorney to appeal his three recent Lake County criminal convictions. In his motion, Avants concedes that the “Defendant/Appellant is a layman, uneducated in law, and ungifted in matters of law or jurisprudence.” Ironically, such an admission seems to represent a mind-reversal, since it was Avants himself who had previously pressed a Lake County judge into allowing him to dismiss his court-appointed trial counsel and defend himself before the six-member jury that ultimately convicted him of all but one charge.
While by no means a frequent event, some defendants do in fact choose to strike out on their own and defend themselves—pro se (meaning “for oneself, on one’s own behalf”)—the way Avants did during his day long trial, held before Circuit Judge Mark Nacke at the Lake County Judicial Center in Tavares, Florida, on March 22, 2013. Avants was staring down five- and fifteen-year felony charges related to cannabis possession, as well as two misdemeanors. The fact that now, at age 24, he already had a past prison record involving 18 felonies, the stakes were indeed high for this first-time trial lawyer. Based upon the State of Florida’s witness list, for example, Avants would have to be prepared to cross-examine as many as seven witnesses (not to mention, select his jurors, make an opening statement, a closing argument, call any witness of his own, testify at trial himself if he so desired, handle objections, and either agree or disagree with proposed jury instructions).
The criminal allegations against Avants seemed straightforward enough: A civilian at a local gas station had observed a man on a bicycle ride up to three different vehicles and each time exchange drugs for cash. Acting upon his civic duty, the tipster contacted police and the police followed-up on the matter by investigating firsthand a black male wearing a tan shirt and tan pants, riding a blue bicycle. As one can assume, it was not long before officers observed the bicyclist commit a ‘traffic violation’ by failing to stop his bicycle at a stop sign. It was then that an attempt was made to initiate personal contact with the bicyclist, Avants.
Avants’ charge of resisting a law enforcement officer without violence stems from the fact that as police approached, using their patrol car lights and sirens, Avants turned back over his shoulder while riding away and told the officers that he was not going to stop for them. Eventually Avants ditched the bike and ran, leading to a chase where pursuing officers watched as Avants tossed away small bags of cannabis—18 of them in all (when the one still on his person when he was apprehended is counted). The fact pattern gave rise to the State’s additional charges of possession of cannabis with intent to sell or deliver within 1,000 feet of a school, possession of paraphernalia (i.e, the bags), and evidence tampering (i.e., jettisoning the bags as he fled).
As the morning of jury selection arrived, Avants was advised by Judge Nacke that despite the fact that he had never graduated from the 12th grade, Avants would not be receiving “any favorite treatment” from either the court or the prosecution, simply because he had chosen self-representation. Being warned of the practical dangers of being his own attorney, Avants stayed resolute—although he did accept the judge’s offer for an ill-fitting pair of spare dress shoes to complete his suit and tie ensemble. (Getting the bright orange jailhouse ‘slides’ off Avants’ feet would prevent jurors from knowing that Avants had been unable to bond out of custody, pre-trial.)
One final item of business before bringing in the prospective jurors was to make sure that Avants understood that he was rejecting the State’s best-and-last offer to settle his four charges short of an actual trial. The State’s plea offer of just five years was in fact meant as a bargain, as it amounted to less than twenty-five percent of Avants’ maximum legal exposure. In the end, Avants made what he termed his “cross counter-offer” of a mere 18 months in prison—a proposition that Assistant State Attorney Christopher Shropa declined within a millisecond.
Appropriately awaiting his turn, Avants’ first words to the prospective jurors were polite and to the point: “Ladies and gentlemen, my name is Demetris Avants. I’m here on the defense of the case.” As the jury selection process went on, the prosecutor used numerous analogies (such as when a child is accused of knocking over a vase), in an attempt to underscore certain points. When it was his turn again, Avants offset these analogies with some degree of flair: “Well, I ain’t going into all the examples because an example is just an example. Knocking over a vase, that’s not something like life. That’s a child. A crime is a crime and wrong is wrong and right is right… So I just ask for you-all [to] just pay attention. This is my life. This ain’t no vase knocking over… this is my life.” (Thereupon, the judge sustained an objection by the prosecutor and Avants—seemingly intimidated by the objection—abruptly ended his presentation with the words, “Sorry. I apologize… That would be all, you-all.”)
Following a brief opening statement by the prosecutor and even fewer opening words by Avants, the pro se defendant soon found himself with his first opportunity to try his hand at cross-examination. Notably, Avants did not shy away from seeking to discredit the civilian tipster (called as the State’s first witness), as any licensed attorney might: “On page 11, [as] describ[ed] in the deposition you stated something differently,” Avants maintained. On at least one occasion during the cross-examination the State’s witness would be forced to concede a point of identification. The man testified, “I believe they were tan shorts and you got a tan shirt on, I believe.” Avants shot back: “Well, in your witness statement you state there was a black man wearing a tan shirt and blue shorts.” When the witness shrunk back, saying, “Okay. Well I got the color of the shirt right,” it was clear that Avants was at least on the scoreboard. Even more remarkable was the fact that when the prosecutor attempted to rehabilitate his witness on the issue of the color of the shorts, the pro se defendant had the presence of mind to make a formal protest. “Objection, Your Honor… he stated that I had tan shorts on. He stated it twice.” (Other cross-examination questions hit unfortunate potholes. For example, “Did you personally see Officer Russell go into my pocket?” “I’m Officer Russell,” came the witness’ reply.)
In the end, Avants declined to testify in his own defense. Yet he picked up a bit of steam when it came to a passionate and fairly involved closing argument. The big surprise to onlookers, however, came when the pro se defendant managed to get one of his two felony charges tossed out—no pun intended. Citing appropriate case law, Avants essentially persuaded the judge that tossing away bags of cannabis within plain sight of police officers, in a manner that in no way hindered their recovery or use as evidence at trial, could not support the charge of evidence tampering. Bottom line? A not-so-shabby defense “Judgment of Acquittal” as to count three. Now, unless Avants gains relief via his pending appeal, then the short-lived victory he gained over the charge of evidence tampering will be the only thing to savor as he serves the next 13 years in prison. Regarding his extensive prior record, Avants’ sentencing comments to Judge Nacke seem too telltale: “I didn’t really know nothing about the law.”
James Hope is a Florida Bar Board Certified Criminal Trial Lawyer who has been practicing criminal law in Tavares, Florida, since 1987. He has also been the Publisher and Executive Editor of Lake Legal News since 2009. He may be contacted at LakeLegalNews@gmail.com, or through his website at www.AttorneyJamesHope.com. [PHOTO CREDIT: Bonnie Whicher]