# State v. Watson

> Supreme Judicial Court of Maine · July 6, 2006 · 900 A.2d 702

URL: https://www.frixlaw.com/law-library/cases/9766713

## Case

- **Full name:** STATE of Maine v. Hank WATSON; And State of Maine v. Jonathan Blumberg
- **Court:** Supreme Judicial Court of Maine
- **Decided:** July 6, 2006
- **Citations:** 900 A.2d 702; 2006 ME 80; 2006 Me. LEXIS 89
- **Precedential status:** Published
- **Opinion:** Concurring in part by Silver
- **Judges:** Saufley, Clifford, Dana, Alexander, Calkins, Levy, Silver
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9766713

## How later opinions describe it (automated extraction)

- discussing Tomah and stating that “we . . . decline[] to adopt fixed ‘Miranda-like warnings of the risks of self-representation and the benefits of counsel’ . . . .” (quoting Morrison, 567 A.2d at 1353 )
- discussing Tomah and stating that “we ... declineQ to adopt fixed ‘Miranda-like warnings of the risks of self-representation and the benefits of counsel’_” (quoting Morrison, 567 A.2d at 1353)

## Opinion text

SILVER, J.,
with whom DANA, J. joins, concurring in part and dissenting in part.
[¶ 38] I respectfully dissent from the Court’s holding in State v. Watson that Hank Watson knowingly and intelligently waived his right to counsel, despite the fact that the trial court never warned him of the perils and pitfalls of self-representation. Unlike the majority, I believe that such an admonition from the trial court is a fundamental and necessary element of a criminal defendant’s waiver of his constitutional right to counsel. Because Watson did not receive any warnings from the trial court concerning his decision to represent himself at trial, I would vacate his judgment of conviction and remand for further proceedings.
[¶ 39] The majority recognizes that a criminal defendant’s right to representation by counsel is one of the most basic and fundamental of constitutional rights. See supra ¶ 14; see also U.S. CONST, amend. VI; MAINE CONST, art. I, § 6. Of course, the corollary to the right of representation by counsel is the right of a criminal defendant to represent himself at trial. See Faretta v. California, 422 U.S. 806, 832 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975). The balance that a trial court must strike to ensure that a criminal defendant has elected to exercise one of these competing rights, and, by necessary implication, elected to waive the other, is a fine one. State v. Walls, 501 A.2d 803, 806 (Me.1985). When a criminal defendant makes the decision to waive his right to counsel and proceed to trial without counsel, the trial court may validate the choice only so long as the defendant “is made aware of the dangers of self-representation, and the record reflects that ‘he knows what he is doing and his choice is made with eyes open.” ’ State v. Barrett, 577 A.2d 1167, 1171 (Me.1990) (quoting Walls, 501 A.2d at 805 ). On this point, the United States Supreme Court has stated:
When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forgo those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”
Faretta, 422 U.S. at 835 , 95 S.Ct. 2525 (internal citations omitted) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 , 63 S.Ct. 236 , 87 L.Ed. 268 (1942)). In other words, the waiver of the right to counsel must be voluntary, knowing, and intelligent, with “every reasonable presumption ... indulged against waiver.” Supra ¶ 15.
[¶ 40] The question at once emerges as to what exactly is a knowing and intelligent waiver of the right to counsel. It is here where I diverge from the majority. Although the Court holds today that a trial court should give the defendant the Faret- *716 ta warning and implies that Watson was aware of the risks of self-representation without having received such a warning, I believe that the constitution requires the trial court to give a criminal defendant a warning concerning the dangers of self-representation before such a waiver may be properly effectuated. See Patterson v. Illinois, 487 U.S. 285, 298 , 108 S.Ct. 2389 , 101 L.Ed.2d 261 (1988) (noting that because of the “enormous importance and role that an attorney plays at a criminal trial,” the Supreme Court has “imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him to waive his right to counsel at trial”); Iowa v. Tovar, 541 U.S. 77, 89 , 124 S.Ct. 1379 , 158 L.Ed.2d 209 (2004) (“Warnings of the pitfalls of proceeding to trial without counsel ... must be rigorously] conveyed.”) (quotation marks omitted); Michael J. Kelly, Note, Making Faretta v. California Work Properly: Observations and Proposals for the Administration of Waiver of Counsel Inquiries, 20 ST. JOHN’S J. LEGAL COMMENT. 245, 269-76 (2005). Anything less falls short of this standard. See, e.g., United States v. Davis, 269 F.3d 514, 518-19 (5th Cir.2001); United States v. Brown, 823 F.2d 591, 599 (D.C.Cir.1987) (noting that that court has required district courts in its circuit to “engage defendants in a short discussion on the record regarding [the] dangers and disadvantages” of self-representation) (quotation marks omitted); State v. Young, 626 So.2d 655, 656 (Fla.1993) (requiring the use of Faretta warnings); People v. Arguello, 772 P.2d 87, 97 (Colo.1989) (“[B]efore a reviewing court can find a valid implied waiver based on conduct, there must be ample, unequivocal evidence in the record that the defendant was advised properly in advance of the consequences of his actions.”); State v. Carter, 107 Or.App. 48 , 810 P.2d 872, 873-74 (1991). Not only have other jurisdictions embraced this constitutional view, but our own precedent also supports it. See, e.g., State v. Tomah, 560 A.2d 575, 575-76 (Me.1989) (vacating defendant’s judgment of conviction because he was not, among other things, warned of the dangers of proceeding pro se at trial); see also State v. Gaudette, 431 A.2d 31, 32 (Me.1981) (stating that defendant “received more than ample warning of the dangers of proceeding without counsel” at trial); cf. State v. Morrison, 567 A.2d 1350, 1352 (Me.1990). In Barrett , we affirmed the trial court’s finding that the defendant knowingly and intelligently waived his right to counsel when the trial court informed the defendant of his right to counsel, “thoroughly explained the dangers of proceeding pro se to defendant before [it] permitted defendant to exercise his right of self-representation,” and explained to the defendant the consequences of so acting. 577 A.2d at 1172 .
[¶ 41] Not only is there a constitutional dimension to requiring the trial court to warn a criminal defendant, there are significant practical reasons for these warnings tó be explicitly given. It is only after the criminal defendant has received such a warning from the trial court that the record can reflect that the defendant truly appreciated the task of self-representation. The defendant may then, after hearing the warning from the court, realize that knowing one’s case is not nearly enough; one must be intimately familiar with the technical rules of evidence and procedure in order to get that knowledge before the fact-finder. The defendant may also then realize that the State is represented by a trained, skilled attorney well versed in those same rules, who, for this reason and generally because of experience, has every advantage vis-a-vis the self-represented defendant, and will likely utilize any oppor *717 tunity that he is given arising from the pro se defendant’s inexperience or lack of trial knowledge. 4 The United States Supreme Court has even recognized that “ ‘a pro se defense is usually a bad defense, particularly when compared to a defense provided by an experienced criminal defense attorney.” ’ Martinez v. Court of Appeal of California, 528 U.S. 152, 161 , 120 S.Ct. 684 , 145 L.Ed.2d 597 (2000) (quoting John F. Decker, The Sixth Amendment Right to Shoot Oneself in the Foot: An Assessment of the Guarantee of Self-Representation Twenty Years after Faretta, 6 SETON HALL CONST. L.J. 483, 598 (1996)). These factors weighing against a criminal defendant who decides to go it alone at trial, taken together, lead me to the inescapable conclusion that a criminal defendant, in order to appreciate his decision to waive the right to counsel, must be made aware of these significant ramifications.
[¶ 42] As the foregoing suggests, in order for a criminal defendant’s waiver of the right to counsel to be knowing and intelligent, the defendant, at a minimum, must be warned of the dangers of proceeding at trial without counsel. Although I recognize that our precedents do not require the trial court to give a criminal defendant a standardized, one-size-fits-all warning, I believe that the trial court should be required to cover the following points through warnings, instructions, or colloquy with the defendant to ensure that that defendant is made aware of the consequences associated with that decision:
• If you are convicted of the charges brought against you, you are very likely facing significant restrictions on your personal liberty, including jail time, probation, and/or a fine;
• During the course of the trial, you will be held to the same standard as an attorney;
• Before an attorney conducts a trial, he or she will have received extensive training in the law in general, and in the rules of evidence and court procedure in particular;
• You will be expected to follow the technical rules of evidence and court procedure and you will be expected to be aware of the ways in which the Maine Supreme Judicial Court has interpreted those rules;
• You will be responsible for selecting a jury, making an appropriate opening and closing statement, knowing what is admissible evidence, knowing how to get that evidence before the finder of facts, knowing how to properly conduct a direct and cross-examination of a witness, and knowing how to properly ask questions of witnesses;
• You will be opposed at trial by a prosecutor who has received years of training in his or her profession, and who is knowledgeable both in criminal law and in the rules of evidence and court procedure;
• Although you may be at a disadvantage in this case, considering your knowledge of the law and rules of evidence and court procedure, and the fact that the State is represented by a trained attorney, the court cannot and *718 will not act as your coach or advisor; thus, even if you make a mistake in the course of the trial, the court will not give you any privileges, benefits, or assistance because you are representing yourself; as the court has said, you will be held to the same standard as an attorney;
• There are technical issues surrounding appeals, and there are certain motions and objections that you must make before, during, and after trial in order for you to properly preserve the particular issue for appeal; if an issue is not preserved for appeal, the Maine Supreme Judicial Court will likely not consider the issue, and, if it does, it will likely apply a deferential standard of review to the so-called unpreserved issue; and
• Finally, you do have the right to counsel, and, if you qualify, you may have one appointed for you at government expense.
[¶ 43] Turning to the facts of the instant case, the record confirms that the trial court did not warn Watson of the dangers and disadvantages of proceeding to trial without counsel. Although the court generously took the time to review the general rule of hearsay, as well as the general nature of the charges brought against him, including the use of his prior conviction of OUI to enhance his sentence, and the order of presentation of testimony and argument, such review falls short of the constitutional requirement that the “pitfalls of proceeding to trial without counsel ... must be rigorously] conveyed.” Tovar, 541 U.S. at 89 , 124 S.Ct. 1379 (quotation marks omitted) (citing Patterson, 487 U.S. at 298 , 108 S.Ct. 2389 ). Without a warning of these “pitfalls,” it is not clear that Watson was made to appreciate what was expected of him at trial or the risks of self-representation. Accordingly, I do not believe that Watson’s waiver of the right to counsel was knowing and intelligent. In light of the court’s failure to properly warn Watson, we should hesitate before finding that he waived his right to counsel. See Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938) (stating that a court must “indulge every reasonable presumption against waiver of fundamental constitutional rights”) (quotation marks omitted).
[¶ 44] The facts of this case call to mind the words of Justice Wathen dissenting in Morrison , words that are particularly resonant today: “Because the dangers of self-representation are so apparent and yet so easily forgotten, we must protect the right to counsel with more rigorous procedures than those employed in this case.” 567 A.2d at 1356 (Wathen, J. dissenting). Because the majority does not go far enough in protecting this fundamental constitutional right, or in ensuring a proper basis for the trial court to determine that a criminal defendant has adequate knowledge of what he is foregoing by waiving the right to counsel, I dissent from the Court’s holding in State v. Watson.
. The California Court of Appeal summed up this point best in an accurate, although dated, analogy:
[T]he prosecution will be represented by an experienced professional counsel who, in turn, will give him no quarter because he does not happen to have the same skills and experience as the professional. In other words, from the standpoint of professional skill, training, education, experience, and ability, it will definitely not be a fair fight. It would be Joe Louis vs. a cripple, or Jack Nicklaus vs. a Sunday hacker.
People v. Lopez, 71 Cal.App.3d 568 , 138 Cal.Rptr. 36, 39 (1977).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766713. Public record. Not legal advice.