Metcalf v. State

For the Court:

James C. Metcalf was convicted in the Circuit Court of Humphreys County of uttering forgery and was sentenced to a term of fifteen (15) years in custody of the Mississippi Department of Corrections. From this conviction and sentence he appeals, alleging ineffective assistance of counsel and lack of an intelligent and knowing waiver of the right to counsel. Finding that the trial court correctly balanced the defendant’s right to represent himself with the right to counsel, thereby establishing a hybrid representation, and finding no other error, we affirm.

FACTS

On August 5, 1989, Metcalf forged three checks stolen from a veterinary clinic in Bel-zoni where he was employed as a janitor. As Metcalf presented a $700.00 check to a liquor store, the store clerk told Metcalf that he did not have enough money to cash the check, and Metcalf left. Through the store clerk’s own investigation, he became aware that the check was unauthorized and notified the police. Metcalf later returned to the store and attempted to cash the check again. When the clerk informed him that he knew the check was forged, Metcalf fled the store. Later that day, Metcalf was successful in cashing a $400.00 check at a grocery store and a third check at a department store. Following his check-cashing spree, Metcalf escaped to Tennessee but was later apprehended, arrested and brought back to Mississippi by Belzoni Police officials for trial.

The court appointed Attorney, W.C. Trotter, III, served as counsel for Metcalf. Met-calf is no stranger to the legal system; the record indicates that since 1956, he has been in court on at least a dozen occasions charged with forgery, burglary and larceny. At the arraignment, on February 15, 1990, Metcalf appeared before the judge with counsel. Trotter indicated that Metcalf had previously told him that he was attempting to locate private counsel and if he could not, he might wish to represent himself. At that time, Metcalf also informed the court that he was under psychiatric care and medication and requested an examination by Region VI Mental Health Center to determine his competency to stand trial. The judge did not relieve Trotter from representation at that time.

Four days later, the defendant, acting as his own counsel, filed an oral motion for previous psychiatric records to be subpoenaed. The court noted that Metcalf was representing himself with the assistance of Attorney Trotter in its February 19, 1990 order. The court’s order directed that a mental examination be conducted by Region VI Mental Health in Greenwood, Mississippi to determine if Metcalf could continue to represent himself and also whether he was mentally competent to stand trial. The judge informed Metcalf that Trotter would continue to be available to advise him on any matter. The judge further admonished Met-calf that the witnesses would be subpoenaed if he would give the names and addresses to Trotter. The records reveals:

BY THE COURT: Well now you had indicated last week you wished to get another lawyer to represent you. Have you done that?

BY MR. METCALF: I still ... I made ... I sent a notice to that lawyer today, today by one of the deputy’s secretary. She said that she would give it to her. She supposed to be back today so I don’t know, I’m still trying to make contact with her.

BY THE COURT: All right. If you don’t, the Court has appointed Mr. Trotter here to represent you, and ...

BY MR. METCALF: AH right. Now we’re working together now?

BY MR. TROTTER: I’ll be available to advise ...

BY THE COURT: Yes, sir.

BY MR. TROTTER: Mr. Metcalf on anything ...

BY THE COURT: Yes, sir....

Subsequently, on March 26, 1990, the trial court entered an order for a psychiatric examination at the Mississippi State Hospital at Whitfield to determine if Metcalf was able to represent himself as well as if he was mentally competent to stand trial. This order was filed after the court was notified that, pending the Region VI Mental Health examination ordered on February 19, 1990, Metcalf attempted to file commitment papers on himself in the Chancery Court of Humphreys County, Mississippi and attempted to set fire to his jail cell. In a letter dated June 29, 1990, Dr. Maggie Lancaster, Director of Forensic Service at the Mississippi State Hospital at Whitfield, advised the trial court of her findings after a psychiatric examination of Metcalf. Dr. Lancaster concluded that Met-calf was competent to stand trial, knew the difference between right and wrong in relation to his actions at the time of the crime charged, and was capable of conferring with an attorney. The case proceeded to trial on July 27, 1990. When Metcalf learned that the witnesses he had planned to call would not be testifying because they had not been subpoenaed, the following colloquy took place:

BY THE COURT: Well, you see, Mr. Metcalf, that’s the need — reason you needed some expert advice. You needed some advice from an attorney to handle that for you and you refuse.

BY MR. METCALF: No, he [Trotter] was working along with me.

BY THE COURT: No. He — you refused that before me very emphatically on two or three occasions, and the Court suggested that to you that you needed it and that I was going to have him available at any time you wanted to call him. And I’ve got him coming over here today and I’ll have him sitting there with you. But now you have come up here the morning of trial — ■ he’s been — he has not done any preparation. He hasn’t interviewed any witnesses. You haven’t told him of the witnesses you wanted.

BY MR. METCALF: Yes, I have.

BY THE COURT: When? Yesterday?

BY MR. METCALF: No, he just came yesterday. I’ve seen him several times and told him I wanted these witnesses, but he just came yesterday and made out the subpoena.

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BY THE COURT: Well, this whole mess is your fault. It’s not mine. It’s not Mr. Trotter’s, because he was available to you and would have prepared himself and prepared you for this trial if you had just indicated that you wanted him, and you told me you didn’t want him and wasn’t going to consult with him and all of that, and I suggested to you on I know two occasions that this was not wise.

BY THE COURT: But you remember me cautioning you and telling you that you needed a lawyer.

BY MR. METCALF: No, I remember you asking me — Attorney Trotter say did I have a desire to represent myself — to hire an attorney. I said I had tried to get an attorney.

BY THE COURT: And you told me you didn’t want Mr. Trotter.

BY MR. METCALF: Well, I said that if necessary I would represent myself. Those are my words.

BY THE COURT: All right. All right. Anyway—

BY MR. METCALF: But I never have refused his assistance, and I’ve always asked him to help me to prepare for the trial, and he can tell you the same thing.

At that point, the Sheriff advised the trial court that Trotter had visited Metcalf “a week or so ago” and that “[t]hey went into a back room and talked.” Thereafter, this discussion took place:

BY MR. METCALF: He [Trotter] came and asked me, said, “The judge wanted me to tell you that you could represent yourself,” and he said, “But I’ll be there with you,” and he said that, “State’s attorney wanted to know what kind of plea you wanted,” that’s the only thing he talked about. I been telling him — I been persistent in trying to get my witnesses in time for trial. He just came over yesterday and said — he said that the State’s attorney sent him over to see about what witnesses to call. I didn’t understand that.

BY THE COURT: Well, no she did that at my request to save me a telephone call when I was in Greenwood.

BY MR. METCALF: I been trying to get these witnesses ever since this thing started.

BY MS. BRIDGES: Judge, I do know that Mr. Metcalf has had ample communication through the sheriffs department, and any time he wanted witnesses, all he had to do was send a list of them.

BY THE COURT: That’s all. And your refusing to accept any legal advice has got you in the predicament you’re in this morning, and I’m going to put you to trial.

Metcalfs motion for a continuance was denied and he was then called upon to represent himself. At trial, Dr. Helen Robertson, a clinical psychologist at the Mississippi State Hospital, testified that she had obtained medical records from other doctors whom Metcalf claimed to have seen, believing they would give her substantial insight into his condition. She stated, however, that some of the institutions where Metcalf claimed to have been treated had never heard of him and had no record whatsoever of his treatment. Ultimately, Metcalf was diagnosed as “malingering” and as having an “anti-social personality disorder.” Dr. Robertson explained that he was diagnosed as “malingering” because several of the experts who had evaluated Metcalf believed he was feigning symptoms of mental illness. She further explained that persons diagnosed as having an “anti-social personality disorder” are those who “know what the rules are; they just don’t care.”

The jury returned a verdict of guilty, and on July 27, 1990, the trial court sentenced Metcalf to a term of 15 years. The trial court appointed W.S. Stuckey to represent him on his motion for a new trial and appeal. His motion was denied. For the first time on appeal, Metcalf raises the issues of ineffective assistance of counsel and lack of a knowing and intelligent waiver of counsel.

DISCUSSION OF THE LAW

I.

There is no record that any of the issues Metcalf presents on appeal were raised before the trial court. His motion for a new trial set forth only two grounds: (1) the verdict was against the overwhelming weight of the evidence, and (2) any other reasons that were to be brought up at a hearing on this matter. On a motion for a new trial, certain errors must be brought to the attention of the trial judge so that he may have an opportunity to pass upon their validity before this Court is called upon to review them. Weyen v. Weyen, 165 Miss. 257, 139 So. 608 (1932). For example, the denial of a continuance in the trial court is not reviewable unless the party whose motion for continuance was denied makes a motion for a new trial on this ground. See King v. State, 251 Miss. 161, 168 So.2d 637 (1964); Cherry v. Hawkins, 243 Miss. 392, 137 So.2d 815 (1962); Lamar v. State, 63 Miss. 265 (1885).

Neither Metcalf nor his new attorney, Stuckey, made a showing as to what the absent witnesses might say that would have warranted a continuance. Everything the trial judge had heard prior to the motion indicated that the witnesses could offer no insight into Metcalfs condition beyond Dr. Robertson’s testimony. Although Metcalf did not raise the issue of ineffective assistance of counsel in his motion for new trial or make an objection in the record, we will still address his argument today because the real issue at hand is whether Metcalf received proper “hybrid representation.”

While every accused has the constitutional right to be represented by an attorney, it must be balanced against the right of an accused to represent himself, that is, to present his own ease pro se without an attorney. In Gray v. State, 351 So.2d 1342 (Miss.1977), cert. denied Gray v. Mississippi, 446 U.S. 988, 100 S.Ct. 2975, 64 L.Ed.2d 847 (1980), this Court stated the following:

Mississippi Constitution Article 3, section 26 (1890) provides in part:

“In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both,....

The refusal to permit defendant to argue his case is in direct violation of the above constitutional provisions and requires reversal.”

Id. at 1345 (emphasis added); Accord, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

In order to strike a balance between the right to counsel and the right to self-representation many courts have turned to “hybrid representation” as a middle ground. Hybrid representation is considered to encompass both the participation of the defendant in the conduct of his trial when he has not effectively waived the assistance of an attorney to defend him, and the participation by an attorney in the conduct of the trial when the defendant is defending pro se. Courts commonly refer to the role of the attorney in a situation in which a defendant has not effectively waived assistance of an attorney as that of “co-counsel.” The role of the attorney in a situation where the defendant has effectively waived counsel and is proceeding pro se is that of “standby” or “advisory” counsel. The former tends to involve a more active role in the representation of the defendant than the latter. In McKaskle v. Wig gins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), the Supreme Court considered the scope of a pro se defendant’s Sixth Amendment prerogatives when the trial court, unsolicited by the defendant, appointed standby counsel. The Court noted that “the primary focus must be on whether the defendant had a fair chance to present his ease in his own way.” Id., 465 U.S. at 177, 104 S.Ct. at 950. It then set forth two general limitations on the extent of standby counsel’s unsolicited participation at trial:

First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury. This is the core of the Faretta right. If standby counsel’s participation over the defendants’ objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of the witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded.

Second, participation by standby counsel without the defendant’s consent should not be allowed to destroy the jury’s perception that the defendant is representing himself. The defendant’s appearance in the status of one conducting his own defense is important in a criminal trial, since the right to appear pro se exists to affirm the accused’s individual dignity and autonomy ... From the jury’s perspective, the message conveyed by the defense may depend as much on the messenger as on the message itself. From the defendant’s own point of view, the right to appear pro se can lose much of its importance if only the lawyers in the courtroom know that the right is being exercised.

Id., 465 U.S. at 178-9, 104 S.Ct. at 951 (footnote omitted) cited in United States v. Mills, 895 F.2d 897, 902-3 (2d Cir.1990).

“It is well established that an accused has no absolute light to hybrid representation.” Wiggins, 465 U.S. at 183,104 S.Ct. at 953, 79 L.Ed.2d at 136. Nevertheless, a trial court may certainly permit hybrid representation in its discretion. Id.; United States v. LaChance, 817 F.2d 1491, 1498 (11th Cir.), cert. denied, 484 U.S. 928, 108 S.Ct. 295, 98 L.Ed.2d 255 (1987); United States v. Mills, 704 F.2d 1553, 1557 (11th Cir.1983) cert. denied, 467 U.S. 1243, 104 S.Ct. 3517, 82 L.Ed.2d 825 (1984); United States v. Hill, 526 F.2d 1019, 1025 (10th Cir.1975), cert. denied, 425 U.S. 940, 96 S.Ct. 1676, 48 L.Ed.2d 182 (1976). Without employing the term “hybrid representation,” this Court recognized the need for this type of representation in Matthews v. State, 394 So.2d 304 (Miss.1981).

An accused could place the trial judge in a difficult situation by insisting on a pro se trial, and, upon conviction, claim that he/ she did not have the benefit of counsel and did not knowingly waive counsel. Again if the court refused to permit an accused to represent himself/herself, and required him/her to have counsel present the case, the accused could contend that he/she was denied his/her constitutional right in not being permitted to present his/her defense pro se. In such delicate situations, the question of counsel waiver must be determined on the facts of each case.

Matthews at 311.

In Matthews, the appointed attorneys remained present during the four day trial and were ready, willing and able to assist, counsel and advise the appellants. In fact, Matthews did at times seek advice from her appointed attorney. This Court decided that the appointed attorney “was in the best position to know whether or not she executed a knowledgeable waiver of counsel and was mentally competent to do so ... ” Id. Accord Curlee v. State, 437 So.2d 1, 2 (Miss.1983). Furthermore, in Evans v. State, 273 So.2d 495 (Miss.1973), we explained:

“[W]e have recognized a right of a defendant to proceed without counsel and to refuse the representation of assigned counsel ... [H]e may not use this right to play a ‘cat and mouse’ game with the court, ... or by ruse or stratagem fraudulently seek to have the trial judge placed in a position where, in moving along the business of the court, the judge appears to be arbitrarily depriving the defendant of Counsel.”

Id. at 499, citing United States v. McMann, 386 F.2d 611, 618-9 (2d Cir.1967), cert. denied, 390 U.S. 958, 88 S.Ct. 1049, 19 L.Ed.2d 1153 (1968).

Matthews, Cwrlee and Evans all involved representations in which the role of the attorney could be characterized as “standby” or “advisory” counsel. Trotter’s representation of Metcalf, however, went well beyond that of simply advising Metcalf on procedural matters; it was more akin to a “co-counsel” role, a scenario which has not been addressed by this Court.

In the case sub judice, Metcalf attempted to invoke his right to self-representation during his February 15 arraignment when Trotter informed the court that Metcalf had expressed a desire to represent himself. Met-calf indeed represented himself four days later when he motioned that the court order the production of previous psychiatric records. The trial judge acknowledged that Metcalf was representing himself in the order that was granted on February 19, 1990. Perhaps, the trial judge should have made a more explicit determination that Metcalf was competent to represent himself after his mental examination. However, the judge, through his order of February 19, 1990, did in fact state that Metcalf was representing himself. Further, the results of the Mississippi State Hospital which indicated that Metcalf was competent to stand trial and knew right from wrong only affirmed the determination that Metcalf was competent to represent himself. Lastly, Metcalf was on notice that he could represent himself as indicated in his own words, “[Trotter] came and asked me, said, ‘The judge wanted me to tell you that you could represent yourself.”

At the bench conference, Metcalf again indicated that he was attempting to obtain other counsel and was aware at that time that he and Trotter were “working together” on the case. The trial judge reiterated to Metcalf that Trotter was available to advise him on anything. From this time until the trial on July 27, Metcalf did not deviate from the position that he did not want counsel alone to represent him. While the record from the arraignment and the bench conference are not explicit, it appears that the trial court contemplated providing Metcalf with hybrid representation. Metcalf insisted either on representing himself or working alongside counsel. It is apparent from the record that the trial judge, Trotter, and Met-calf all understood that Metcalf had obtained permission to act as co-counsel. This is evidenced by Metcalfs reference to his understanding that he and Trotter were “working together on things.” Metcalfs desire to act as co-counsel is further demonstrated by the fact that he appeared at trial with Trotter and at no time expressed a desire to dismiss him. Further, Trotter stated on the record that the defendant never refused his advice. In sum, Metcalf neither moved to dismiss his attorney nor refused his advice. Judging from Metcalfs actions, he understood that Trotter was working with him on his case.

Metcalf argues that the trial court failed to conduct a proper waiver of counsel inquiry before permitting him to represent himself at trial. Metcalfs argument is misguided, however, as he did not truly represent himself. He requested and was provided with the assistance of counsel throughout the entire trial process in the form of a “hybrid representation.” Before trial, he requested that he be allowed to participate in varying degrees in his own defense. The question before this Court is whether granting a request for a participatory role amounts to granting pro se representation. To answer this question, we must look at the facts and circumstances surrounding the trial court’s response to such a request. If the totality of the circumstances indicates that the defendant was granted the right to retain the assistance of counsel while assuming a participatory role in his own defense, we may term the right granted as one of “self-representation,” even though the exact assistance given may still be one of “hybrid representation.”

There are several factors we consider in deciding whether the trial court granted pro se or hybrid representation. These factors include: the defendant’s accessibility to counsel; whether and how often he consults with counsel up to the point of the request; the stage of trial at which he requests a participatory role in his defense; the magnitude of the role he desires to assume; whether the trial court encourages immediate and constant accessibility of counsel; and the nature and extent of assistance of counsel which has been provided up to the point of the request, including both substantive and procedural aid.

The trial court clearly granted Metcalf a participatory role at trial with attorney representation. The judge recognized that Met-calf never discharged his counsel. Trotter remained at counsel table with Metcalf and encouraged Metcalf to consult with him throughout his trial. Metcalf was never without the advice and knowledge of counsel, although he remained free to accept or reject that assistance.

Metcalfs own role was very limited. He presented the opening and closing statements, made one objection, and asked one question on cross-examination of each of the State’s witnesses. Trotter, on the other hand, objected to and argued against the introduction of evidence when a proper predicate had not been laid; attended all bench conferences; objected to cumulative evidence; moved for a directed verdict and to exclude certain evidence; directed Metcalfs testimony, eliciting his defense of mental incapacity; made several objections and arguments to rebuttal testimony by expert witnesses; stipulated to the qualifications of the experts; cross-examined the expert witness; objected to hearsay testimony on rebuttal; objected to and argued for certain jury instructions; and prepared the outline from which Metcalf gave his closing argument and advised him on voir dire and the opening statement. It is clear that Trotter’s role was not merely that of a skilled bystander, but of a substantive litigator. The record is replete with references to consultations between Metcalf and Trotter as well as numerous instances where Trotter helped to clarify the thrust of Metcalfs argument for the trial court and the jury. Metcalf was never without the assistance of counsel throughout his trial since Trotter served as a continuous and accessible source of legal advice. Under the circumstances, Trotter did a commendable job in helping with Metcalfs representation.

In many ways, Metcalf enjoyed the best of both worlds throughout his trial — he was permitted to represent himself while retaining the assistance of counsel. He was provided with more rights than those afforded under either the United States or Mississippi Constitutions. The trial court, in its discretion, could have required Metcalf to choose between the right to counsel and the right to pro se representation, but in striving to balance both interests, it granted a “hybrid representation.” Metcalf cannot now complain because he received exactly what he requested — assistance of counsel while conducting his own defense.

Trial judges walk a thin line when attempting to maintain a balance between the defendant’s right to counsel and his right to self-representation. An infringement on either right means automatic reversal:

A trial court’s evaluation of an individual’s desire to represent himself is fraught with the possibility of error. Because self-representation necessarily entails the waiver of the sixth amendment right to counsel, a trial court can commit reversible constitutional error by improperly granting a request to proceed pro se — and thereby depriving the individual of his right to COUnsel — or by denying a proper assertion of the right to represent oneself, and thereby violating Faretta [the right to self-representation], See United States v. Fant, 890 F.2d 408, 409-10 (11th Cir.1989); Brown v. Wainright, 665 F.2d 607, 610 (Former 5th Cir.1982) (en banc); Chapman v. United States, 553 F.2d 886, 892 (5th Cir.1977).

Cross v. United States, 893 F.2d 1287, 1290 (11th Cir.1990). Had the trial judge in this case forced Trotter to remain as Metcalfs court-appointed counsel, this case would very likely be in front of us today on the assertion that the trial judge failed to honor Metcalfs right to self-representation. See Scarbrough v. State, 777 S.W.2d 83 (Tex.Cr.App.1989).

The trial court’s decision to allow pro se representation will be disturbed only upon a showing of abuse of discretion. Curlee, 437 So.2d at 2. To that effect, we have stated:

Appellate courts regularly admonish themselves to give substantial deference to findings of fact made by the trier of fact.... As a matter of common sense as well as common law, the fact finder surely must have the benefit of viewing the manner and demeanor of the witnesses.... The trial court necessarily has an infinitely superior vantage point when compared with that of this Court, which has only a cold record to read.

... Not only did he [the trial judge] have the benefit of their words, he alone among the judiciary observed their manner and demeanor. He was there on the scene. He smelled the smoke of battle. He sensed the interpersonal dynamics between the lawyers and the witnesses and himself. These are indispensable.

Allowing the trial judge’s findings of fact a substantial measure of finality or presumptive validity is the least imperfect way we have of peaceably settling disputes such as this. Were we to substitute our view of the facts for the chancellor’s, one thing could be said with certainty: the chances of error in any findings we might make would be infinitely greater than is the case where those findings are made by the man on the scene. The one time in a hundred when we may be right and the trier of fact wrong cannot justify our disturbing the established practice regarding our scope of review.

Culbreath v. Johnson, 427 So.2d 705, 708 (Miss.1983).

This matter could have been clarified had the trial judge made a clearer record of the events which transpired; however, since these issues were not raised by the defense on the motion for new trial or j.n.o.v., he did not have the opportunity to do so. Unfortunately, “[a]U of us have 20/20 vision in hindsight. It’s a pity that our vision is not also perfect in foresight.” Sanders v. State, 260 So.2d 466, 471 (Miss.1972). Nevertheless, Metcalf received even more than the representation he requested. Trotter conducted a large part of Metcalfs defense and took an active role in his representation. Regardless of how we label the representation he received, Metcalf was never without the advice and expertise of his attorney and as such there was no need for a waiver instruction. His argument is specious and should be dismissed.

II.

Metcalf further complains that even if he is found to have had assistance of counsel, that assistance was ineffective. This Court employs the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to determine whether a defendant has been denied effective assistance of counsel. Fisher v. State, 532 So.2d 992 (Miss.1988). Strickland requires the defendant to show first “that counsel’s performance was deficient” and second that “the deficient performance prejudiced the defense.” Strickland at 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. To meet the requisite showing of prejudice, the defendant must show that “there is a reasonable probability that but for counsel’s unprofessional errors the result would have been different.” Fisher, 532 So.2d at 997, citing Strickland at 466 U.S. at 694,104 S.Ct. at 2068, 80 L.Ed.2d at 698.

In this ease, Metcalf had every opportunity to avail himself of Trotter’s skills and services. Looking at the first prong of the Strick land, test, we note that Metcalfs only complaint about Trotter’s performance was that the attorney did not subpoena the expert witnesses he had sought. Metcalf was con- ■ trolling his own defense, and Trotter can not be faulted for not subpoenaing the witnesses earlier since Metcalf never gave him the names of the witnesses until the day before the trial. Working on short notice, Trotter advised the clerk’s office to issue subpoenas. Since all of the witnesses were either residents of another county or on vacation, none could be reached. Metcalf claims to have needed these witnesses to support his insanity plea which he had not raised and, ironically, was contradicted by his own testimony on cross-examination in admitting his sanity. The trial court had notice only of Metcalfs contention that he was incompetent to stand trial. He complained at trial that his witnesses were not subpoenaed, but made no showing that they were vital to his defense. No insanity defense notice was given to the prosecution, and no proffer was made of the doctors’ testimony. There is no indication that any of the testimony would have been relevant to the defense.

When testimony is not allowed at trial, a record of the proffered testimony must be made in order to preserve the point for appeal. Johnson v. State, 416 So.2d 679, 681 (Miss.1982); Gates v. State, 484 So.2d 1002, 1008 (Miss.1986). Metcalf made no formal proffer of testimony. Applying the second prong of Strickland, there were no affidavits or other evidence introduced at trial which would allow us to even begin to determine whether Metcalf was prejudiced by the failure to timely subpoena the witnesses. Furthermore, Metcalf testified on direct examination regarding the alleged “black-outs” of memory and his assertion that he had been in and out of institutions for the better part of his life. This testimony was rebutted by Dr. Robertson, who indicated that she and the other doctors at the Mississippi State Hospital thought that he was feigning blackouts. She further testified that many of the institutions where Metcalf claimed to have been treated had no records of his admission or treatment. Thus, Metcalf got the evidence into the record and before the jury, albeit not in the manner he desired.

Metcalf got the representation he requested and should not now complain about the results. He sought a participatory role in his defense which he was granted in the form of hybrid representation. Because he never discharged his attorney and was never without his advice and expertise, even though he was free to accept or reject that advice, a waiver of counsel inquiry was not required. Further, the record reflects that Trotter was not deficient in representing Metcalf nor was Metcalfs case prejudiced by counsel’s representation. Finally, we cannot review the trial court’s denial of the continuance because Metcalf did not move for a new trial on this ground. One should not ask for something ope does not want, for one may get it.

For the reasons stated, Metcalfs conviction for uttering forgery and sentence of fifteen (15) years in custody of the Mississippi Department of Corrections is affirmed.

CONVICTION FOR UTTERING FORGERY AND SENTENCE OF FIFTEEN (15) YEARS IN CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED.

PRATHER, P.J., JAMES L. ROBERTS, Jr., and SMITH, JJ., concur.

DAN M. LEE, P.J., concurs in results only.

BANKS, J., dissents with separate written opinion joined by HAWKINS, C.J., and SULLIVAN, J.

PITTMAN, J., not participating.

. Rule 59 deals with motions for new trial:

(a) Grounds. A new trial must be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of Mississippi; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted on suits in equity in the courts of Mississippi.

On a motion for a new trial in an action without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law make new findings and conclusions, and direct the entry of a new judgment.

. The following cases involve various types of hybrid representations which have been granted in federal and state courts. Different states have differing requirements for the assorted types of hybrid representation. Some require valid waiver for some types of representation and not for others; it differs from state to state, circuit to circuit. Reese v. Nix, 942 F.2d 1276 (8th Cir.1991); United States v. Taylor, 933 F.2d 307 (5th Cir.1991); United States v. Treff, 924 F.2d 975 (10th Cir.1991); United States v. Mills, 895 F.2d 897 (2nd Cir. 1990); Cross v. United States, 893 F.2d 1287 (11th Cir.1990); Tuitt v. Fair, 822 F.2d 166 (1st Cir.1987); Johnstone v. Kelly, 808 F.2d 214 (2nd Cir.1986); United States v. Torres, 793 F.2d 436 (1st Cir.1986); Hodge v. Henderson, 761 F.Supp. 993 (S.D.N.Y.1990); United States v. Durden, 673 F.Supp. 308 (N.D.Ind.1987); Briscoe v. State, 606 A.2d 103 (Del.1992); Monts v. Lessenberiy, 305 Ark. 202, 806 S.W.2d 379 (1991); In re Chapman, 155 Vt. 163, 581 A.2d 1041 (1990); People v. Bloom, 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698 (1989); Carter v. State, 512 N.E.2d 158 (Ind.1987); State v. Lehman, 137 Wis.2d 65, 403 N.W.2d 438 (1987); State v. Franklin, 714 S.W.2d 252 (Tenn.1986); Reed v. State, 491 N.E.2d 182 (Ind.1986); State v. Cooley, 468 N.W.2d 833 (Iowa App.1991); Cul verhouse v. State, 755 S.W.2d 856 (Tex.Cr.App. 1988); Scarbrough v. State, 111 S.W.2d 83 (Tex.Cr.App.1989); Ortberg v. State, 751 P.2d 1368 (Alaska App.1988); Parren v. State, 309 Md. 260, 523 A.2d 597 (1987); Ford v. State, 515 So.2d 34 (Ala.Cr.App.1986); State v. Dupre, 500 So.2d 873 (Ct.App.La.1986); Funderburg v. State, 717 S.W.2d 637 (Tex.Cr.App.1986); Moore v. State, 142 Ga.App. 145, 235 S.E.2d 577 (1977); State v. Randall, 530 S.W.2d 407 (Mo.Ct.App.1975).

. In his brief, Metcalf acknowledges that he made known his desire to represent himself on February 19, at which time the trial court entered an order for a mental examination to determine whether he was competent to stand trial and if he was capable of representing himself.

. On appeal, Metcalf has continued to act as co-counsel on his case. Although the brief was filed by his new attorney, W.S. Stuckey, this Court has ruled on several motions filed by Metcalf.

. Metcalf asked each witness whether he had been present at the time of the crime to see the defendant passing the forged check.