The State is correct that the assistance of standby counsel can rise to such a level that the defendant is deemed to have had counsel for his or her defense, thereby mooting any assertion of involuntary waiver. Hatfield, 346 Ark. 319, 57 S.W.3d 696. Whether such assistance rises to that level is a question that must be answered by looking at the totality of the circumstances. Id. Our cases on this issue demonstrate that the assistance must be substantial, such that counsel was effectively conducting a defense. Id. Viewing the totality of the circumstances, we hold that the role of standby counsel in this case was not substantial. Counsel did not participate in the questioning of the witnesses and even left the courtroom at one point. While counsel did provide some limited assistance to Shabazz, such assistance was not so substantial as to render harmless the improper waiver of counsel.
Shabazz contends that the violation of his right to counsel should result in a new trial. The State, on the other hand, argues that Shabazz is entitled only to a new suppression hearing. We disagree.
Our supreme court acknowledged in Young v. State, 370 Ark. 147, 257 S.W.3d 870 (2007), that as a general rule, most trial errors, including constitutional ones, do not automatically require reversal of a criminal conviction. Unlike ordinary trial errors, however, structural defects in the constitution of the trial mechanism defy analysis by harmless-error standards. See Sullivan v. Louisiana, 508 U.S. 275 (1993) (citing Arizona v. Fulminante, 499 U.S. 279, at 309 (1991)). The Supreme Court has recognized that the Sixth Amendment right to counsel is among those "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error," Chapman v. California, 386 U.S. 18, at 23 (1967). In other
14
