Broadwater v. State

MOYLAN, J. Ironically, it is immeasurably easier to waive a fundamental protection of the United States Constitution than it is to waive a provision of the Maryland Rules. The latter, after all, are “precise rubrics.. that are to be read and followed,” Isen v. Phoenix Assurance Co., 259 Md. 564, 570, 270 A.2d 476 (1970), whereas the former are but the “majestic ambiguities” 1 written for the ages. An especially intimidating specimen of those “precise rubrics” are the three densely packed pages of Maryland Rule 4-215, dealing with the waiver of the right to counsel. They are stern directives far more unforgiving than the Sixth Amendment’s right to the assistance of counsel itself.

We must examine Rule 4-215 under a microscope. 2 ³⁰⁰ The Present Contention The appellant, Lorinda Ann Broadwater, was convicted by a Frederick County jury, presided over by Judge John H. Tisdale, of 1) driving under the influence of alcohol, 2) driving while impaired by alcohol, 3) negligent driving, and 4) failing to illuminate headlights. She raises the contention that Judge Tisdale erroneously required her to represent herself at trial after erroneously determining that she had waived her right to counsel by inaction. Because of the limited nature of her single contention, we are only concerned with the issue of the waiver of counsel by inaction in the circuit court. That particular waiver modality is governed by Maryland Rule 4-215(d), which provides in pertinent part: (d) Waiver by inaction—Circuit court.

If a defendant appears in circuit court without counsel on the date set for hearing or trial, indicates a desire to have counsel, and the record shows compliance with section (a) of this Rule, either in a previous appearance in the circuit court or in an appearance in the District Court in a case in which the ³⁰¹ defendant demanded a jury trial, the court shall permit the defendant to explain the appearance without counsel. ... If the court finds that there is no meritorious reason for the defendant’s appearance without counsel, the court may determine that the defendant has waived counsel by failing or refusing to obtain counsel and may proceed with the hearing or trial. (Emphasis supplied). On February 14, 2005, the appellant appeared before Judge Tisdale on her third appointed trial date without counsel.

The following colloquy ensued: [ASSISTANT STATE’S ATTORNEY]: Your Honor, it’s my understanding that Ms. Broadwater is going to be entering a not guilty plea today, and the State is ready to proceed with trial. THE COURT: All right, and, Ms. Broadwater, you were advised of your right to an attorney. I see you’re here without an attorney. THE DEFENDANT: Yes.

THE COURT: Have you made efforts to retain an attorney? THE DEFENDANT: I did once I got discovery from the State, and what wasn’t in there was the original signed statement of probable cause, and the story that the—the paper that they gave me is significantly different than my signed statement of probable cause, so I tried to figure out how I was going to work that until February 1, where I called the Public Defender and they said I would have had to be in there the day before, so I’m defending myself. I have questions (indiscernible). THE COURT: All right.

Well when you were before Judge Adams back in November, she advised you then of your right to an attorney? THE DEFENDANT: Yes. I’m still okay. THE COURT: So you had from November 8.

Actually, you had from the time you were in district court— ³⁰² THE DEFENDANT: Um-hmm. THE COURT: But you certainly had that time. I find under the circumstances that you’ve waived your right to an attorney. (Emphasis supplied).

The appellant now claims that that finding of waiver by inaction was in error. It behooves us to look closely at Rule 4-215. Maryland Rule 4-215 Rule 4r-215 consists of five provisions. The latter four of those set out four separate modalities by which the assistance of counsel may be waived: 1) the express waiver of counsel, pursuant to § 4-215(b); 2) the waiver of counsel by inaction in the District Court, pursuant to § 4-215(c); 3) the waiver of counsel by inaction in the circuit court, pursuant to § 4-215(d); and 4) the waiver of counsel by the discharge of counsel, pursuant to § 4-215(e).

Each of those four waiver modalities shares with the others the threshold requirement that the waiver will not be deemed effective unless the defendant has received a series of advisements (or inquiries) listed in § 4-215(a). Johnson v. State, 355 Md. 420, 446 , 735 A.2d 1003 (1999). The satisfaction of § 4r-215(a) is a common denominator prerequisite for effective waiver under any of the waiver modalities. Rule 2-415(a) provides: (a) First appearance in court without counsel.

At the defendant’s first appearance in court without counsel, or when the defendant appears in the District Court without counsel, demands a jury trial, and the record does not disclose prior compliance with this section by a judge, the court shall: (1) Make certain that the defendant has received a copy of the charging document containing notice as to the right to counsel. (2) Inform the defendant of the right to counsel and of the importance of assistance of counsel. ³⁰³ (3) Advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any. (4) Conduct a waiver inquiry pursuant to section (b) of this Rule if the defendant indicates a desire to waive counsel. (5) If trial is to be conducted on a subsequent date, advise the defendant that if the defendant appears for trial without counsel, the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel.

(Emphasis supplied). Turning our attention to Rule 4-215(a), proeedurally there are two venues wherein it may be satisfied: 1) the circuit court or 2) the District Court if the District Court has jurisdiction to try the case. 3 Substantively, the rule sets out three requirements that must always be satisfied and two possibly additional contingent requirements that sometimes apply but sometimes do not. If, for instance, the defendant does not “indicate a desire to waive counsel,” requirement #4 does not apply. McCracken v. State, 150 Md.App. 330 , 353 n. 4, 820 A.2d 593 (2003) (“Rule 4-215(a)(4) requires the court to conduct a waiver inquiry pursuant to subsection (b) if the defendant indicates a desire to waive counsel.

Because appellant never indicated such a desire, the court was relieved of satisfying subsection (a)(4).”). Subsection 4-215(a)(4), moreover, is redundant to subsection 4-215(b) itself, and does not really serve any independent function. Because this case involves a waiver by inaction pursuant to Rule 4-215(d) rather than an express ³⁰⁴ waiver pursuant to Rule 4-215(b), requirement #4 would never apply in any event and will not be further discussed in this opinion. 4 If, for instance, the trial is to proceed immediately rather than “to be conducted on a subsequent date,” requirement # 5 does not apply. Gregg v. State, 377 Md. 515, 554 , 833 A.2d 1040 (2003) (“Gregg was found effectively to have waived his right to counsel on the same day that he was tried, thereby eliminating the need for the part (5) advisement.”).

With respect to the three absolute requirements, the first is, essentially, the court’s confirmation that someone delivered to the defendant “a copy of the charging document containing notice as to the right to counsel.” The second and third requirements, concerning, respectively, 1) “the right to counsel” and “the importance of assistance of counsel” and 2) the nature of the charges” and the “allowable penalties,” are actual advisements that must be made by the judge personally to the defendant on the face of the record. Some appreciation of the different natures of these three (or four or five) requirements will make an application of a sometimes overly generalized caselaw more sensitively possible. A Traffic Violation Eight Months Earlier The traffic infractions of which the appellant w;as convicted on February 14, 2005, occurred eight months earlier, on June 25, 2004. At approximately 2:00 a.m. on that morning, Montgomery County Police Officer James Geary was driving northbound on Route 15, returning from duty to his home in ³⁰⁵ Frederick County, when he observed a car coming directly toward him in his lane of traffic.

The oncoming car did not have its headlights illuminated. Officer Geary swerved to the right to avoid a head-on collision. Calling for assistance from Frederick County law enforcement personnel, he executed a U-turn and followed the suspect vehicle. He observed the errant vehicle narrowly missing other cars in oncoming traffic, as its headlights flickered on and off.

When the car eventually pulled into a parking lot at a townhouse development, Office Geary identified its driver as the appellant. She admitted to Officer Geary that she had been drinking at a bar on Route 15 near the Airport Inn. Within minutes, Frederick County Deputy Sheriff Chris Schreiner also arrived on the scene. He observed that the appellant’s eyes were watery and bloodshot, and he detected the odor of alcohol coming from her vehicle.

When Deputy Schreiner attempted to administer standard field sobriety tests, the appellant had trouble keeping her balance and could not perform the tests as instructed. She admitted to Deputy Schreiner that she had had two Budweiser beers and two WTiite Russian cocktails. She declined to take a breath test for alcohol. She testified that Deputy Schreiner had, however, requested her to submit to a preliminary breath test, which showed a breath alcohol content of .19.

The District Court Appearance All four charges against the appellant were for offenses over which the District Court and the circuit court had concurrent jurisdiction. All charges were initially scheduled for trial in the District Court and were only removed to the circuit court when the appellant requested a jury trial. The appellant had initially been charged on June 23, 2004. She appeared before a District Court Commissioner on June 25, where she received a copy of, and signed a receipt for, both the charging document and a Notice of Advice of Right to Counsel.

The appellant appeared before District Court Judge Janice R. Ambrose for her scheduled trial on September 21, 2004. Judge Ambrose fully advised the appellant of the ³⁰⁶ nature of and the possible penalties for each of the four charges. She also established 1) that the appellant had received a copy of the charging document and 2) that the appellant did not wish to waive her right to an attorney. JUDGE: Ms. Broadwater, you’re charged with negligent driving, failure to display lighted lamps.

Those are payable offenses. Each with a maximum penalty of a Five Hundred Dollar fíne. One count of driving or attempting to drive a vehicle [while under the influence of] alcohol and one count of driving or attempting to drive while impaired by alcohol. The alcohol offenses: one is a Five Hundred Dollar fine and/or sixty days and the other one is a Thousand Dollar fine and/or one year in jail.

Did you receive copies of those charges? MS. BROADWATER: I received copies of it, yes. I did need more time.

JUDGE: And you’re here without a lawyer, Ms. Broad-water. Do you wish to perform without one? MS. BROADWATER: Absolutely not.

I do need more time because it’s not the lawyer fee but I do—I’m trying to get a polygraph done to bring in as evidence and those things take time and I’ve only had three months. The State, however, had its witnesses present and wished to proceed with the trial as scheduled. Judge Ambrose indicated that she was prepared to go forward with the trial. JUDGE: What’s the State’s position?

STATE’S ATTORNEY: The State has two witnesses and we’re ready to proceed today. JUDGE: Well, Ms. Broadwater, what have you been doing for the last three months? MS. BROADWATER: Uh, let’s see, so far I’ve lost my house.

I’m living out of my car. Oh, here— JUDGE: Ms. Broadwater, when you were charged back on June 23rd, you were advised by the Court Commissioner about your right to have a lawyer. Do you recall that? ³⁰⁷ MS. BROADWATER: Yes.

And I did contact one and I picked one to hire. But when my— JUDGE: I’m not continuing your case, ma'am. MS. BROADWATER: Okay.

When Judge Ambrose advised the appellant of her right to a jury trial, however, the appellant seized the opportunity. JUDGE: You have the absolute right to have a jury trial if you want one. MS. BROADWATER: Yes, I want a jury trial.

JUDGE: I can’t keep you here in District Court if you want to have a jury trial. MS. BROADWATER: Okay. JUDGE: Come see the Clerk.

Your case is going to be sent to the Circuit Court. The District Court Appearance And the Assessment of Rule 4-215(a) In assessing the adequacy of the appellant’s September 21, 2004 appearance in the District Court in terms of subsequently looking back to it for the satisfaction of Rule 4-215(a), we note initially that there were only three requirements, not five, that needed to be satisfied. The appellant expressly disclaimed any “desire to waive counsel.” Conditional requirement # 4, therefore, did not apply. The trial was not “to be conducted on a subsequent date” but was proceeding to trial on that very date, September 21, 2004.

Conditional requirement # 5, therefore, did not apply. Our focus will be confined to the three remaining requirements. Judge Ambrose clearly determined that the appellant had received a copy of the charging document, thereby satisfying requirement # 1. Judge Ambrose further informed the appellant as to “the nature of the charges” and the “allowable penalties,” thereby satisfying requirement # 3.

Judge Ambrose, however, did not satisfy requirement # 2, that of “informfing] the defendant of the right to counsel and of the importance of assistance of counsel.” ³⁰⁸ Because of that failure to satisfy requirement #2, the September 21, 2004, appearance of the appellant in the District Court cannot, in and of itself, be deemed sufficient to have satisfied Rule 4-215(a). It remains to be seen, however, whether that initial appearance might have some supplemental utility in combination with later advisements on subsequent occasions. Circuit Court Appearance on October 8, 2004 After praying a jury trial in District Court on September 21, 2004, the appellant then appeared in circuit court before Judge Tisdale on October 8. Judge Tisdale informed the appellant that - a trial date had been set for her one month later, on November 8.

He meanwhile inquired as to her efforts to secure an attorney. THE COURT: Okay. You have a trial date set for the 8th of November. Now, have you made any efforts to retain an attorney?

THE DEFENDANT: I wanted to make sure it would go to a jury trial. THE COURT: That’s fine, hut have you made any efforts to retain an attorney? THE DEFENDANT: I did go one time to the public defender after the circuit court date that I had. I’m sorry, I have fibromyalgia, it’s a little hard sometimes.

I did go there. They said in order for them to help me, they needed a paper saying somebody was supporting me, and basically for months I’ve been going from place to place, different friends’ houses. I haven’t been home in about three months, as if they mailed anything, I wouldn’t have gotten it. (Emphasis supplied).

Because the trial was not to be held on October 8 but was “to be conducted on a subsequent date,” November 8, requirement' # 5 was added to the prescribed Rule 4-215(a) catechism, alerting the defendant that if she subsequently “appears for trial without counsel,” she could be deemed to have “waived counsel” by inaction and could be forced to “proceed ³⁰⁹ to trial ... unrepresented by counsel.” Judge Tisdale satisfied requirement # 5 to a fare-thee-well. THE COURT: Well, Ms. Broadwater, let’s just get down to brass tacks, okay? I’m not your friend, I’m not your enemy either, all right? There are just some facts of life that exist.

Now, you have a trial date of the 8th of November at 9 a.m. Now, I’m going to tell you the whole nine yards, but let me just be very clear. If you come to court on that date without an attorney, you probably won’t be granted a continuance to retain one, okay? Now, I—it’s a lot easier for me to sit up here and say those things than it is to make it happen, but that’s beside the point, okay?

The Court’s a big ole machine and it’s going to continue to run. It’s your responsibility. ... As I told you, if you come to court on the 8th of November without an attorney, you likely won’t be granted a continuance to retain one. Now, I know you’ve heard this same advice on a number of occasions, and a judge is going to look at this file and say, well, we’ve told her and told her, okay?

(Emphasis supplied). So much for requirement # 5. With respect to requirement #2, Judge Tisdale also informed the appellant with respect to both her “right to counsel and of the importance of assistance of counsel.” [YJou have a right to an attorney. If you can’t afford to retain an attorney who is in private practice, you may be eligible for representation by an attorney with the Office of the Public Defender.

Now, they need at least four weeks, which is what you’ve got left, to process the whole thing, so I would do whatever it takes today to get started on that process. Certainly, you don’t have to go there. You may be able to retain an attorney who is in private practice.... An attorney can assist you by evaluating the charges and the facts of the case and advising you how to proceed in connected court proceedings on your behalf.

(Emphasis supplied). Turning to requirement # 3, the advisement of “the nature of the charges” and “the allowable penalties,” Judge Tisdale advised: ³¹⁰ Understand that if you’re found guilty, you could be sentenced to up to one year at the local detention center and a fine of up to $1,000, so you have a right to an attorney. That, of course, was with respect to the flagship count of driving while under the influence of alcohol with its máximum penalty of a year in jail and a $1,000 fine. 5 The merged conviction for the lesser included offense of driving while impaired carried a lesser maximum penalty of 60 days in jail and a $500 fine. The charges of negligent driving and the failure to display lighted headlamps carried no jail time and $500 fines.

Because the purpose of the advisement is to impress upon the defendant the importance of the assistance of counsel, we believe that advising the defendant of the maximum penalty she was facing satisfied requirement # 3. 6 Requirement # 1 is not an advisement at all but simply a reassurance of the court that the defendant has received a copy of the charging document. That assurance had earlier been obtained by Judge Ambrose in the District Court on September 21, 2004. ³¹¹ Circuit Court Appearance on November 8, 2004 The appellant’s circuit court trial was first scheduled for November 8, 2004. When she appeared that day before Judge Theresa M. Adams, she still did not have an attorney. Because of another scheduled jury trial, however, Judge Adams gave the appellant yet another opportunity to get a lawyer.

Judge Adams also reiterated the importance of the assistance of counsel. THE COURT: I’m going to continue your case, but that will give you a chance to think about whether you want a lawyer. Do you understand? THE DEFENDANT: Thank you.

THE COURT: Now, I’m going to tell you again what the judge already told you in October. You have the right to hire a lawyer of your own choosing. You have the right to represent yourself, you can do that, if you want, but a lawyer can be helpful to you and, could be helpful to you not only in the trial, but also in presenting information to the Court in mitigation, okay, to help you with, if you were found guilty, what the sentencing may be, to help you with any issues a lawyer might think are appropriate, so that— a lawyer could help you. If you do not, cannot afford a lawyer, you can go to the Office of the Public Defender.

If you qualify for their services, they will provide a lawyer for you. If you don’t qualify for their services, they won’t, and you’ll have to decide if you want to hire one or make other arrangements with a lawyer. So I’m telling you that one more time so that when this case comes back here, the record is going to reflect you were advised of your right to a lawyer once again, and if you come back without a layer, the judge could find that you have waived your right to be represented by counsel, by a lawyer. Do you understand that, Ms. Broadwater?

THE DEFENDANT: Yes, ma‘am. (Emphasis supplied). Rule 4-215(a)(5) was thus fully satisfied on both October 8 and November 8. There was nothing ³¹² confusing about it on either occasion.

The warning was loud and clear. Judge Adams set the next trial date for January 24, 2005. On January 24, the appellant requested a continuance because she was awaiting some discovery by the State. Judge G. Edward Dwyer granted her a continuance until February 14.

He did not burden her with any additional advisements, and January 24 has nothing to contribute to our analysis. The Satisfaction of Subsection (a) The appellant does not contend that all of the advisements and inquiries mandated by Rule 4-215(a) were not adequately satisfied at one time or another. She acknowledged that requirement # 1 had been satisfied by District Court Judge Ambrose on September 21, 2004. “[T]he court confirmed that Ms. Broadwater had received a copy of her charging document as required, by Rule 4,-215(a)(l).” (Emphasis supplied). She acknowledged that requirement #2 had been satisfied by Judge Tisdale on October 8, 2004. “The court informed Ms. Broadwater that she had a right to counsel and explained the importance of counsel, satisfying Rule b~215(a)(2).” (Emphasis supplied).

For good measure, the appellant acknowledged that requirement # 2 had also been satisfied by Judge Adams on November 8, 2004. “Judge Adams did comply with Rule 4-215(a)(2).” (Emphasis supplied). The appellant acknowledged that requirement #3 had been satisfied by Judge Ambrose on September 21, 2004. “[T]he court ... informed Ms. Broadwater of the nature of the charges and the maximum penalties as required by Rule 4,-215(a)(3).” (Emphasis supplied). This case involves a waiver by inaction pursuant to Rule 4-215(d) and not an express waiver pursuant to Rule 4-215(b). Rule 4-215(a)’s contingent requirement # 4 accordingly does not apply, and, therefore, did not need to be satisfied.

With respect to contingent requirement # 5, the appellant’s circuit court appearance on October 8, 2005, was not a scheduled trial date but one where “trial [was] to be conducted on a ³¹³ subsequent date.” Requirement # 5 was applicable, therefore, on October 8. The appellant acknowledged that Judge Tisdale satisfied it on that date. “The court ... warned Ms. Broadwater that if she appeared at her next court date without a lawyer the court could conclude that she waived her right to counsel and require her to proceed to trial without a lawyer, satisfying (a)(5).” Simply by way of gilding the lily, the appellant also acknowledged that Judge Adams again satisfied requirement # 5 on November 8, 2004, when the trial that had been scheduled could not go forward. “Judge Adams did comply with Rule ... (a)(5) (advise the defendant that if she appears at trial on her next date unrepresented, the court may conclude that she has waived her right to counsel and require that she represent herself).” (Emphasis supplied). After acknowledging that requirement # 1 had been satisfied, requirement #2 had been satisfied twice, requirement # 3 had been satisfied, contingent requirement # 4 was inapplicable, and contingent requirement # 5 had been satisfied twice, what then does the appellant complain of?

The Appellant’s Argument The appellant complains that there was never an omnibus hearing at which all of Rule 4-215(a)’s required inquiries and advisements were all wrapped up in a single package. She alleges reversible error in that she “was advised of her right to counsel in a piecemeal manner over the course of several different court appearances.” She lists one District Court and three circuit court appearances and complains that the “requirements of Maryland Rule 4-215(a)(l)-(5) were not satisfied at any one of those hearings.” She concludes: “The advice required by Rule 4-215(a) was not provided to [her] point by point, by one judge, at one proceeding. Therefore the Rule was not satisfied.” 7 ³¹⁴ Even poring over every line of Rule 4-215 literally and even insisting upon strict compliance with every provision, we cannot find anywhere in the wording of the rule itself a requirement for a single omnibus hearing at which a single judge on a single occasion satisfies each and every one of Rule 4-215(a)’s requirements. To that end, however, the appellant cites two sentences of dicta from Johnson v. State, 355 Md. 420, 461 , 735 A.2d 1003 (1999), as if that passage were the established and authoritative law of Maryland.

It is not. We conclude that to avoid confusion on the part of an accused and to protect the fundamental right to counsel, the subsection (a) advisements must be given in strict accordance with Md. Rule 4-215, by the correct court and not piecemeal. A “knowing and intelligent” waiver of counsel can only occur when there is strict compliance with the rule. (Emphasis supplied).

Although the appellant does not cite it, the immediately preceding paragraph is also part of the Johnson passage. [A]ny Md. Rule b.-215(a)(l)-(5) advisements that Johnson received were inadequate and given to him in an incomplete manner in different courts by different judges, all resulting in likely confusion on the part of the defendant. Nowhere in the record is there evidence that any one circuit court judge went through the section (a) litany with Johnson, point-by-point as required____For the rule to be an effective constitutional safeguard, it contemplates defendants ³¹⁵ receiving the advisements during their “first appearance in court without counsel.” (Emphasis supplied). We reject the appellant’s argument for two reasons: 1. The Johnson dicta does not follow from any thorough analysis.

As dicta, it is, as a matter of course, not authoritatively binding. It is, at best, persuasive, and we are not persuaded by it. 2. Even if, arguendo, the dicta contained a glimmer of future truth, it is nonetheless thin and conclusory and would be in dire need of significant fine-tuning. As properly fine-tuned, it would not lead to a reversal in this case.

Johnson v. State: The Holding Versus the Dicta Johnson v. State is itself a thoroughly researched and well reasoned opinion. It well deserves its status as authoritative Maryland law—as far as its holding is concerned. That holding, 355 Md. at 426 , 735 A.2d 1003 , established that although the District Court is an appropriate forum for satisfying Rule 4-215(a) in a case in which the District Court has jurisdiction to try the case, but when the defendant demands a jury trial, the District Court is not the appropriate forum for satisfaction in a case in which exclusive jurisdiction is in the circuit court and the District Court is simply engaged in the preliminary skirmish of conducting a bail hearing. [A] circuit court judge with exclusive original jurisdiction may not determine that Johnson waived counsel based on information provided to him at his bail review hearing before a District Court judge. Because Johnson’s charges were not transferred to the circuit court on a jury trial demand, an advisement by a District Court judge, as opposed to a circuit court judge, was not sufficient for strict compliance with Md. Rule J/,-215.

(Emphasis supplied). The Johnson Court then explained the pivotal distinction between being in the District Court for trial and only pausing there for a bail hearing. ³¹⁶ Johnson’s offenses brought him within the exclusive original jurisdiction of the circuit court; therefore, in accordance with the introductory language of both Md. Rule 4-215(a) and (d), Johnson was to be advised of (a)(1) through (5) either when he appeared for the first time in the circuit court without counsel or when he appeared in the District Court without counsel and demanded a jury trial. Because Johnson never appeared in the District Court without counsel and demanded a jury trial, the rule requires that he be given the section (a) advisements by a circuit court judge. 355 Md. at 453 , 735 A.2d 1003 (emphasis supplied). In its “Conclusion,” Judge Chasanow indicated that the Court of Appeals was responding to the request by the Court of Special Appeals “for further guidance.” By way of guidance, he then spelled out precisely what the holding of Johnson v. State consisted of: In the instant case, a circuit court judge with exclusive original jurisdiction may not determine that Johnson waived counsel based on information provided to him at his bail review hearing before a District Court judge.

Johnson’s charges were not transferred to the circuit court on a jury trial demand; therefore, an advisement by a