Colvin v. State

DAVIDSON, Judge,

dissenting:

The majority here determines that “the appellant was at best seeking ‘hybrid’ representation, not making a statement from which the court could reasonably conclude that he desired self-representation.” Consequently, the majority concludes that “the predicate needed to trigger the threshold inquiry required by Snead or that required by Rule 723 c was missing.” I do not agree. In my view, the accused’s *129 statement here was sufficient to trigger that inquiry. Accordingly, I respectfully dissent.

An accused in a criminal prosecution has the constitutional right to proceed without counsel. State v. Renshaw, 276 Md. 259, 267 , 347 A.2d 219, 225 (1975); see also Faretta v. California, 422 U.S. 806, 818 , 95 S.Ct. 2525, 2532 , 45 L.Ed.2d 562 (1975). In Snead v. State, 286 Md. 122, 127 , 406 A.2d 98, 101 (1979), we considered “how the right to self-representation must be asserted.” In establishing the minimum “declaration” sufficient to constitute an assertion of the right to self-representation, we said:

“As we see it, such a declaration serves to alert the trial judge that further inquiry may be necessary. Therefore, any statement by the defendant from which the court could reasonably conclude that the defendant desired self-representation would be sufficient.” (Emphasis added.)

Thus, this Court in Snead established that it is not necessary for an accused to make an unequivocal statement indicating a desire to represent himself in order to trigger an inquiry by the trial court to determine whether the accused is entitled to exercise the right to self-representation.

Additionally, in Snead , this Court described the inquiry to be pursued by the trial court when the accused indicates, in a minimum “declaration,” a desire to defend himself. There we said:

“When the defendant so indicates a desire to defend pro se, the court must, by appropriate inquiry, determine whether he ‘truly wants to do so.’ Faretta, 422 U.S. at 817 [ 95 S.Ct. at 2532 ]. This inquiry has two phases. First, the court should ascertain whether the defendant ‘clearly and unequivocally’ wants to defend himself. If a defendant makes known to the court, admitting of no doubt or misunderstanding, that he desires to represent himself, the right to do so has been properly asserted.

“Once the defendant has clearly and unequivocally declared his desire to proceed pro se, the second phase of the inquiry is triggered.

*130 Rule 723 of the Maryland Rules of Procedure implements the constitutional mandates for waiver of counsel, and its provisions are mandatory. Section c of the Rule details the inquiry to be made ‘[w]hen a defendant indicates a desire or inclination to waive counsel. . . . ’ Thus, it is invoked when a defendant has properly asserted his right to defend pro se and governs phase two of the inquiry required to determine whether a defendant ‘truly’ desires to manage his own defense. In short, a defendant in a criminal prosecution who has properly asserted the right to defend himself and has, under our procedures, effectively waived the assistance of counsel, has the right to self-representation absolutely.” Snead, 286 Md. at 127-28, 130 , 406 A.2d at 101, 102 (citations omitted).

Thus, this Court established that when an accused makes a minimum “declaration” asserting the right to self-representation, the trial court must conduct an inquiry to determine whether the accused “clearly and unequivocally” wants to represent himself. If the trial court determines that the accused “clearly and unequivocally” wants to represent himself, the right to self-representation has been properly asserted. The trial court is then required to conduct an inquiry pursuant to Maryland Rule 723 1 to determine *131 whether the accused has competently and intelligently waived the right to assistance of counsel.

The record here shows, contrary to the majority’s assertion, that the accused’s statement was a minimum “declaration” sufficient to trigger the two-phase inquiry required by Snead . During a pretrial proceeding, the following colloquy took place:

“COURT: Now is there anything before you start to address the jury? Any . . . any motions that—

“MR. PAYNE [Defense Counsel]: There were some motions, I think.

“COURT: What are they, sir?

“MR. PAYNE: Well, Mr. Colvin has some proper person motions.

“COURT: Alright.” (Emphasis added.)

After a recess, the colloquy continued as follows:

“MR. PAYNE: Your honor, I believe Mr. Colvin has some motions which involve proper person.

“COURT: Hand them to the Court please. (Long pause) Pass them up to the Court. . . .

“DEFENDANT: ... At this time I’d like to speak about some motions that I drew up. One of the motions concerning is the removal of my counsel, for which I applied for in another court.

“COURT: Alright. What do you want to say about it?

“DEFENDANT: I already wrote . .. already wrote the verses to the change of counsel. I believe that because of improper support, because of the nature of the charge, because the State has allowed in cases the State’s Attorney . . the State, uh, uh counsel . . to be paid for representation of the defendant because I need the counsel of my choice to properly represent me in the nature of *132 this case. I ask that the State allow me to choose my counsel and reimburse him for his service.

“COURT: Anything else?

“DEFENDANT: There’s-another motion concerning to be allowed to defend myself to a degree if this case is allowed to go on.

“COURT: Alright. Anything else?” (Emphasis added.) Subsequently, the Assistant State’s Attorney said:

“MR. LEVITZ [Assistant State’s Attorney]: Before the jury comes in I wonder if, in view of the defendant’s remarks, an inquiry into Rule 723 would be appropriate? I’m not clear in my mind, Judge, whether the defendant has requested to represent himself or not.’’ (Emphasis added.)

After denying the accused’s motion for removal of his assigned Public Defender, the trial court concluded that the accused was requesting “hybrid representation” and consequently that a “Rule 723 inquiry” was unnecessary. Thereafter, the colloquy continued as follows:

“DEFENDANT: You spoke of a serious matter bringing about a change of counsel. At our last peer .. at our last motion hearing we both [the accused and the assigned Public Defender] requested to be relieved of each other. Mr. Payne can speak for the matter hisself now.

“COURT: Well, it’s denied.” (Emphasis added.)

In my view, the accused’s statement that he desired “to be allowed to defend myself to a degree” was not a clear and unambiguous request for hybrid representation. 2 Rather, it *133 was an equivocal statement that could reasonably support not only a conclusion that the accused requested “hybrid” representation but also a conclusion that the accused desired self-representation. Under these circumstances, the inquiry required by Snead was triggered.

The record here shows that the accused did not desire to be represented by his assigned Public Defender. Additionally, the accused made a request “to be allowed to defend myself to a degree.” This request was not articulated in terms of a desire to act . as co-counsel, to assist counsel, to himself conduct some particularized aspect of the trial, or to have counsel advise him during the course of the trial. 3 *134 Instead, the accused himself expressly articulated his request in terms of being “allowed to defend myself.” 4 Moreover, even- after the trial court determined that the accused was not entitled to “hybrid” representation, the accused again indicated that he did not desire to be represented by *135 the assigned Public Defender. Indeed, he noted that not only he but also the assigned Public Defender recognized that the existing lawyer-client relationship was unsatisfactory, a factor that suggests that the accused had not been seeking “hybrid” representation because the necessary relationship for successful “hybrid” representation did not exist.

Additionally, defense counsel informed the trial court that the accused had prepared “some motions which involve proper person,” thus suggesting that some of the accused’s motions were requests for self-representation rather than for “hybrid” representation. More important, the Assistant State’s Attorney recognized that the accused’s statement could reasonably support a conclusion that the accused desired self-representation. On the basis of the record, there can be no question but that the accused’s statement could reasonably support a conclusion that the accused desired self-representation.

Under the present circumstances, the accused’s declaration was sufficient to alert the trial court that further inquiry was necessary. Consequently, the accused’s statement constituted a declaration sufficient to require an inquiry to ascertain whether he truly and unequivocally wanted self-representation. That inquiry was never made by the trial court. Thus, the second phase of the inquiry governed by Md.Rule 723 c — whether the right to assistance of counsel was competently and intelligently waived — was not pursued.

The failure of the trial court to pursue the inquiry essential to a determination of the right to proceed without counsel necessitates reversal of the judgments. 5 Snead, 286 Md. at 131 , 406 A.2d at 103 . Accordingly, I would remand the case for a new trial.

. Md.Rule 723 c provides:

“When a defendant indicates a desire or inclination to waive counsel, the court may not accept the waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision, and fully comprehends:

“1. The nature of the charges against him, any lesser included offenses, and the range of allowable penalties, including mandatory and minimum penalties, if any;

“2. That counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial;

“3. That even if the defendant intends to plead guilty, counsel may be of substantial assistance in developing and presenting information which could affect the sentence or other disposition;

*131 “4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him.”

. I do not agree with the majority that the fact that Colvin “stated to the court , five times that he did not wish to ‘fire’ his attorney,” supports the conclusion that the accused “was at best seeking ‘hybrid’ representation.” These statements were made at a hearing held on 14 May 1981 in the Circuit Court for Baltimore County before Judge William R. Buchanan, Sr. At this hearing, the accused’s motion for a change of venue was granted and the case was removed to the Circuit Court for Anne Arundel County.

The pretrial proceeding with which we are here concerned was held on 18 August 1981 in the Circuit Court for Anne Arundel County *133 before Judge F. Mackall Childs. There, notwithstanding the accused’s 14 May 1981 statements that he did not then wish to “fire” his attorney, the accused initially expressed dissatisfaction with his assigned Public Defender and moved for “removal of my counsel.” The accused did not at any time during the 18 August 1981 pretrial proceeding express a desire to retain his assigned Public Defender. Indeed, after the accused’s motion “to defend myself to a degree” was denied, he again indicated that he did not desire to be represented by his assigned Public Defender and wanted him removed. In view of the accused’s unequivocal statements that he desired the removal of his assigned Public Defender, made during the 18 August 1981 pretrial proceeding, his previous statements that he did not wish to “fire” his assigned Public Defender, made during the 14 May 1981 proceeding in another county before another judge, do not lend support to the conclusion that on 18 August 1981 he “was at best seeking ‘hybrid’ representation.”

. It is significant to note that ordinarily a request for “hybrid” representation is expressly articulated in terms of a desire:

(1) to act as co-counsel, United States v. Lang, 527 F.2d 1264, 1265 (4th Cir.1975), cert. denied, 424 U.S. 920 , 96 S.Ct. 1127 , 47 L.Ed.2d 328 (1976); United States v. Swinton, 400 F.Supp. 805, 805 (S.D.N. Y.1975);

(2) to assist in the defense, United States v. Hill, 526 F.2d 1019, 1023-24 (10th Cir.1975), cert. denied, 425 U.S. 940 , 96 S.Ct. 1676 , 48 L.Ed.2d 182 (1976);

(3) to assist counsel, Brasier v. Jeary, 256 F.2d 474, 475 (8th Cir.1958);

(4) to conduct some particularized aspect of the trial, United States v. Dougherty, 473 F.2d 1113, 1119-20 (D.C.Cir.1972); United States v. Dellinger, 472 F.2d 340, 407-08 (7th Cir.1972), cert. denied, 410 U.S. 970 , 93 S.Ct. 1443 , 35 L.Ed.2d 706 (1973); United States v. Conder, 423 F.2d 904, 907 (6th Cir.), cert. denied, 400 U.S. *134 958 , 91 S.Ct. 357 , 27 L.Ed.2d 267 (1970); Duke v. United States, 255 F.2d 721, 725-26 (9th Cir.1958); Wilson v. State, 44 Md.App. 318, 327 , 408 A.2d 1058, 1063 (1979); Beard v. State, 42 Md.App. 276, 288 , 399 A.2d 1383, 1390 (1979); or

(5) to have counsel provide advice during the course of the trial, Lee v. Alabama, 406 F.2d 466, 468-69 (5th Cir.1969); Shelton v. United States, 205 F.2d 806, 812-13 (5th Cir.1953).

In none of these cases was the request for “hybrid” representation expressly articulated in the terms used in this case — “to be allowed to defend myself to a degree.”

. In my view, the accused’s affirmative request to be “allowed to defend myself” even when coupled with the phrase “to a degree” is as strong a declaration of a desire for self-representation as that made by the accused in Snead , In Snead , as here, the accused initially indicated a desire to replace his counsel with counsel of his choice. When that request was denied, the accused said, “I don’t want no attorney then.” Snead, 286 Md. at 126 , 406 A.2d at. 100. Thus, Snead never expressly stated that he wanted to represent himself. Although the Court of Special Appeals found that a desire for self-representation could not be inferred from Snead’s statement, this Court found Snead’s statement to be a minimum “declaration” sufficient to reasonably support a conclusion that he desired self-representation. Snead, 286 Md. at 131 , 406 A.2d at 103 .

The majority asserts that the “appellant’s reliance on Snead is misplaced” because the appellant “did not seek to engage a private attorney; rather he desired to select his own attorney, and have that attorney reimbursed for services by the State.” That fact, however, cannot serve as a basis for distinguishing Snead from the instant case. In Snead , this Court did not consider any question concerning an indigent accused’s right to representation by counsel. Rather, the question presented was “whether Snead was ‘denied his Sixth Amendment right of self-representation....’” Snead, 286 Md. at 125 , 406 A.2d at 99 . More particularly, the question was whether Snead’s statement constituted a declaration sufficient to reasonably support a conclusion that he desired self-representation. Here, as in Snead , the question before this Court does not concern an indigent accused’s right to representation by counsel. Rather, the question is whether Colvin was denied his right to self-representation. More particularly, the question is whether Colvin’s statement constituted a declaration sufficient to reasonably support a conclusion that he desired self-representation. Thus, the majority’s distinction is meaningless. Consequently, I do not agree with the majority that the “appellant’s reliance on Snead is misplaced.”

. In light of this conclusion, I need not consider the other issues addressed in the majority opinion.