Cousins v. State

Arthur, J. On the day before his robbery trial was to begin in the Circuit Court for Baltimore County, Earl Sylvester Cousins asked to discharge his court-appointed counsel. In accordance with Md. Rule 4-215(e), the court allowed Mr. Cousins to explain the reasons for his request, but found that he did not have good cause to discharge counsel. The court proceeded to inform Mr. Cousins that the trial would proceed as scheduled and that he would have to represent himself if he discharged his counsel. Mr. Cousins said that he would discharge his counsel and represent himself.

When the trial began the following day, Mr. Cousins announced his intention to disrupt the proceedings, and he engaged in a profanity-laden tirade against the judge. The court ordered that he be removed from the courtroom, but offered him the opportunity to return if he agreed to behave in a civil fashion. Mr. Cousins did not agree. ⁴²⁴ The jury convicted Mr. Cousins of robbery, and the court sentenced him to 15 years’ imprisonment. QUESTIONS PRESENTED Mr. Cousins presents two questions for our review: I. Did the trial court abuse its discretion in finding that [Mr. Cousins] lacked a meritorious reason to discharge counsel, including that it failed to conduct any inquiry into a possible conflict after assigned counsel said he was conflicted?

II

Did the trial court err when it removed [Mr. Cousins] from the courtroom during his trial without providing him with any means to monitor the proceedings? We affirm. FACTS AND LEGAL PROCEEDINGS On September 13, 2014, Mr. Cousins entered the First Mariner Bank on Loch Raven Boulevard in Baltimore County and surveyed his surroundings. A teller asked Mr. Cousins if he needed help, and he replied that he was looking for his grandmother.

Then he exited the bank. Approximately 45 minutes later, Mr. Cousins returned with a second man. One of the men approached the teller and asked her to make change. The other approached another teller and said, “I want everything you got in your drawers, don’t give me a dye pack, don’t give me bait money and I’ve got a gun so don’t make me use it[.]” Footage from the bank’s surveillance system, which showed the incident, was played in court, and still photographs from the surveillance cameras were introduced into evidence.

A teller identified Mr. Cousins as the man who robbed her. A detective identified Mr. Cousins based on his detailed review of the surveillance footage, photographs of Mr. Cousins, and time that he spent interviewing Mr. Cousins. Baltimore County detectives arrested Mr. Cousins and interviewed him regarding the robbery. A video-recording of the ⁴²⁵ interview was played for the jury.

In the recording, Mr. Cousins told the detectives that he committed the robbery with a man named Nelson. Mr. Cousins explained that he was addicted to drugs and that he committed the robbery to obtain money to buy drugs. Mr. Cousins identified Nelson and himself in photographs. A detective testified that he also interviewed Nelson and learned that the two were “associates.” We shall provide additional facts as necessary in our discussion of each of the issues presented.

DISCUSSION I. Mr. Cousins’ Request to Discharge Counsel A. February 5, 2015, Postponement Hearing Before Judge Cahill Mr. Cousins first expressed disagreement with his appointed counsel at a hearing on February 5, 2015, at which defense counsel requested a postponement. Mr. Cousins stated that he did not agree to the postponement. He said, “I’m ready for trial today for real. I don’t even need him [defense counsel] ...

I’m ready to go and I have a lawyer and it ain’t him ... John Deros is my lawyer now.” Apparently addressing the prosecutor, Mr. Cousins added, “How do you like that, asshole?” The court granted the postponement, and advised Mr. Cousins to “tell Mr. Deros the trial is now April 7, 2015.” B. March 25, 2015, Hearing Before Judge Cahill By the time of a subsequent hearing on March 25, 2015, private counsel had not yet entered an appearance. At that hearing, Mr. Cousins’s appointed counsel expressed concern over his ability to communicate with his client and requested a competency evaluation: [DEFENSE COUNSEL]: ... I’m asking Your Honor to enter an Order for an examination for competency as well as criminal responsibility as long as I’m having him evaluated.

You may recall our last appearance before Your Honor ⁴²⁶ when the matter was postponed on the last trial date. Mr. Cousins had some choice words for Mr. Cox [the prosecutor] .... Over the course of the last month to six weeks, Mr. Cox and I have been attempting to resolve some discovery issues, most of which have been resolved and as I collected that discovery ... I have gone to see my client and review those with him.

Those conversations deteriorate to the point where I’m not, I don’t believe that Mr. Cousins, it deteriorates to the point where he’s not a meaningful participant in one, reviewing the discovery with him and two, being able to participate in strategy decisions or litigation.... But based on the demeanor, I think it’s important to have him evaluated so that if there’s something we can do to, to help him be a meaningful participate, participant in, in trial preparation and litigation, I’d, I’d rather have that done before we did anything else. Later in the proceedings, Mr. Cousins explained that the case had previously been postponed and that he was supposed to get another attorney, but that this had yet to happen. The following colloquy between Mr. Cousins and the court ensued: [MR.

COUSINS]: I seen my attorney and every time I see him, it’s the day before trial, okay? Now, we was going in front of Judge Ensor, right? If you don’t have everything that you need for the case, then that’s a discovery violation. Don’t get mad at me when I ask you for certain things.

I like to go over things concerning my case because when it’s all over with, I’m the one in prison, he’s the one home with his family, you know what I mean? I’ve been in prison twenty-five years, it ain’t, it ain’t a pretty feeling, right? But don’t tell me no lie, tell me anything get mad when I question what’s having something to do with me, you know? I don’t be disrespectful to you.

I was trying to talk to you in the bullpen, you walked away from me. You want me to respect you, I respect you but don’t tell lies and don’t think that you going to do anything to me because I’m not going to let you do that to me. ⁴²⁷ [COURT]: All right. Easy, Mr, Cousins. Let me ask you this.

You just referred to the fact that you had another attorney entering an appearance? [MR. COUSINS]: I was trying to get a, John (inaudible) and they talked, I don’t know what’s going on with it. [COURT]: Well, did you hire Mr. Diros (phonetic)? [MR. COUSINS]: I was trying to. [COURT]: Okay. It would be exceedingly unwise, in my professional judgment, for you to discharge [defense counsel] at that, at this point in time, when discovery is being exchanged and he, in my independent judgment, is trying to look out for your best interest.

But if you’re, are you asking to discharge [defense counsel] at this point in time? [MR. COUSINS]: Yes, sir. Yes, sir. I’m asking— [COURT]: Okay and, and then you would be left without a lawyer, is that what you want to do? [MR.

COUSINS]: I’d be left without a lawyer. If I’m going to give myself, I can get myself some time, I can throw myself on the mercy of the Court because we are not seeing eye to eye okay? [COURT]: Okay. [MR. COUSINS]: And you know— [COURT]: Is there any other reason, aside from what you’ve expressed, to support your request— [MR. COUSINS]: Well, how do I, how do I communicate with somebody who don’t want to communicate with me?

I can’t walk out the County jail and say, hey, I want, I call your office, you come and see me three times, and its [sic] every time before Court date. You don’t come and see me, I’m right down the street from you. You got mad yesterday, I can’t watch the videos, I don’t have the pictures, all I have is police reports and some other stuff, you know, I don’t have the things that I’m supposed to have. I filed my Motion for discovery, I filed for bail review, I filed for the things I needed, you know, I don’t have none of them.

I don’t have no responses to that .., ⁴²⁸ Defense counsel argued that the court should not rule on Mr. Cousins’s request to discharge counsel until it had resolved the issue of competency. The court agreed: [DEFENSE COUNSEL]: I would think that should the evaluation come back that he’s competent and, and the Court wants to address that again, that is absolutely appropriate but this is too serious a matter to leave him without counsel, at least at this junction. [COURT]: Couldn’t agree more. So at this point in time, based on the limited colloquy that we’ve had on the bench, or from the bench I should say, I do not find that there are good reasons or meritorious reasons to support a discharge of [defense counsel] and the Office of the Public Defender. That’s a, that’s a matter that I can take up again down the road but I’m going to deny any request, to the extent that I must under Maryland law, complicated as it is, interpret what you said and request a discharge at this time, that request is denied.

I’m going to grant the request to postpone the trial in this case. The court concluded the proceeding by indicating that it would “sign the Order for examination for competency to stand trial, criminal responsibility.” 1 C. May 28, 2015, Motions Hearing Before Judge King After finding Mr. Cousins competent to stand trial on May 28, 2015, the court heard pretrial motions, which included a motion to suppress Mr. Cousins’s recorded statement to the police. The recording of Mr. Cousins’s statement was played and transcribed into the record. In the statement, Mr. Cousins admitted that he had been using large amounts of cocaine and heroin, that he was intoxicated when he committed the robbery, and that he committed the robbery to obtain money to buy drugs. ⁴²⁹ Appointed counsel, who was still representing Mr. Cousins, argued that the court should suppress the statement because Mr. Cousins did not give a knowing and voluntary waiver of his Miranda rights.

He maintained that Mr. Cousins’s admission to recent and extensive drug use, in addition to his demeanor while making the statement, demonstrated that he was intoxicated or in withdrawal and that his statement could not have been voluntary. The court denied the motion. D. February 1, 2016, Motions Hearing Before Judge Cahill On February 1, 2016, the day before the trial was to begin, the court held a hearing to address a letter that Mr. Cousins had -written to the court. Before the court read the letter into the record, it asked Mr. Cousins if he wished to discharge his counsel.

Mr. Cousins responded by complaining of defense counsel’s failure to introduce a portion of his police interview during the motions hearing on May 28, 2015. The portion of the interview in question showed him lying on the floor for several hours, asleep or unconscious, in a manner consistent with intoxication or withdrawal. Specifically, Mr. Cousins said: [T]he issue that I’m bringing towards the Court was we had a Motion hearing and we were shown, the disc was shown concerning the police interrogation and the whole disc was not shown, parts was withheld and the parts (inaudible) showing me high, sick, laying on the floor with a sheet wrapped around me. Now if you’re going to show the disc, if you’re going to show what happened at the arrest, then show the whole disc ....

You know, and it deals with my arrest too, and I was high and if you going to withheld something, that’s prosecutor misconduct. My attorney know what was withheld from the Judge and I wrote Judge King and as far as him trying not to go in front of Judge King. Judge King even said, if we have any other problems or anything, bring it to him. Okay?

I asked him to go back to him and let him know ... If you’re going to show the disc, show the whole disc (inaudible) and to say we’re going to ⁴³⁰ trial for the 13th case, 2 no, no, no, we ain’t going nowhere. This man is not going to represent me. If you’re going to give me a trial, give me a fair trial, don’t show what you want to show.

The whole disc deal with my arrest and that’s where I’m at with that and let’s go over this, let’s go over, let’s show the disc, let’s show what he redact from the disc and let’s take it in front of the Motion Judge. That’s have a fair trial. If we’re going to have a trial, have a fair trial, you know? The court read Mr. Cousins’s letter into the record.

Mr. Cousins’s grievances included these: 1. The prosecutor had withheld a portion of the video-recording that was shown to the motions court. The part of the recording shows him on the floor with a sheet wrapped around him, withdrawing from drugs. 2. On the day he used profanity in addressing the prosecutor, he had asked to represent himself, and asked his attorney whether there were “any prints,” but his attorney said “no.” 3 3.

He said, “I don’t need [defense counsel] to get me life. I could get myself that and that’s when I cussed [the prosecutor] and [defense counsel] out.” 4. He “spent twenty-three years in prison because [he] had ten whites, two blacks and all from your County.” 5. He wanted to call various attorneys and the judge from the May 28 motions hearing to be witnesses at a hearing at which he would play the full, three-hour recording.

After the court read Mr. Cousins’s letter into the record, it reminded Mr. Cousins of his right to counsel: ⁴³¹ Lawyers, [defense counsel] included, are experts in preparing defenses and challenging the State’s proof and the manner in which it was gathered. Attorneys are experts in negotiating pleas, presenting Motions, sitting next to you and trying the case if necessary, advising you on how and whether to present defenses and if you are found guilty of an offense and presenting mitigation to the Court that might lessen your punishment. The court asked Mr. Cousins if he had “any other complaints about [defense counsel]?” Mr. Cousins replied: Yes, sir. Basically, you know, to, to even talk about starting tomorrow, right? ... you take the disc itself, you know.

If you’re going to show the Motion, let’s show the Motion and let’s show the Judge everything that deal with the Motion. You going to start a trial and you’re going to withheld [sic] something from the Motion, Judge, that’s denied me a fair trial. I’m on the floor high. He testified that, that the detective over there testified when he arrested me I looked to be defeated.

You know, he didn’t get on the record and state that I was high. He knew I was high. I was under the influence of drugs during the interrogation. He also said that I looked defeated and I just looked (inaudible).

I was arrested in, in west Baltimore on the City streets, drug syringe in my pocket, cocaine in my pocket and I’m high on that tape. High as a god damn kite, you know what I mean? And he tried to get me life, he want to give me life so he say, right? ... Let’s go in front of Judge King and show this part that he redacted from the tape and then we can start trial.

And I’m actually representing myself because I don’t need him to get me life. I really don’t. I can get myself life. I can say, hey, Judge Cox, come on let’s have a kangaroo court like we had before, you know?

I don’t need no lawyer to get me life, Your Honor. I had twenty-five no parole. I know the games this man play. He lied about a fingerprint report.

It wasn’t no fingerprint when I cussed ⁴³² him out in Court. 4 It wasn’t none of that, you know. And I still don’t have all the information. Shortly thereafter, Mr. Cousins said, “I don’t even think I can get a representation out of this man in the conflict that we have, ain’t no coming back from that, man. You know, ain’t no coming back from that.” When the court asked defense counsel to respond, he addressed the alleged “conflict,” which involved a complaint to the Attorney Grievance Commission.

The complaint, which was dismissed after Mr. Cousins’s trial but before his sentencing, appears to have concerned his counsel’s failure to attempt to play the three-hour video-recording in its entirety, including the lengthy portions that depicted Mr. Cousins while he was unconscious or asleep, at the suppression hearing. Defense counsel said: [T]he Attorney Grievance matter has been pending since late November, early December, and that’s tied my hands as far as being able to communicate with my client towards the possibility of reopening the Motions to try and make the record he’s asking me to make. The record of the Motion, there is a record at the Motions, there were somethings played, there were some things that were not played. The officers were cross[-]examined.

My hands are tied to, to the extent that, you know, I’m kind of in this, this limbo with the grievance pending. Now, if the grievance hadn’t been filed or had been cleared up, I would have an opportunity to talk to my client with an eye towards deciding whether or not we wanted to reopen Motions on his request. This is a very serious, these are very serious matters. There’s five separate incidents, any of which could subject Mr. Cousins to life without parole.

Earlier in the hearing, defense counsel stated that he was ready to go forward with trial the following day, but would not ⁴³³ be able to do so unless the grievance was settled. Later, however, counsel stated that he would like to take every opportunity to continue to represent Mr. Cousins. Although the grievance had been pending for at least two months (“since late November, [or] early December” of 2015), and the trial was scheduled for the following day, appointed counsel had not moved for leave to withdraw his appearance under Md. Rule 4-214(d). The State made it clear that the portion of the recording in question depicted Mr. Cousins once his police interview had concluded.

The recording equipment continued to run because Mr. Cousins remained in the interview room after the questioning had ended. In the State’s view, the rest of the video was irrelevant to the motion court’s determination. In his description of the portion of the recording that had not been shown to the motions court, defense counsel observed that it was “a couple hours” long and that the detectives had re-entered the room to have Mr. Cousins identify a picture. Defense counsel could not “tell if [Mr. Cousins was] asleep or just lying on the floor with a blanket over him[.]” In ruling that it did not find a meritorious reason for Mr. Cousins to discharge his appointed counsel, the court explained: I certainly do not believe that there’s any meritorious reasons for a discharge of [defense counsel] based on the information that has been presented here and I will make that finding on the record.

Now, I am duty bound to advise you, Mr. Cousins, since I do not find any reason at all, meritorious or otherwise, that, that is intelligible, to allow you to discharge [defense counsel]. But I still can’t legally prevent you from discharging or firing him. You have the absolute right to represent yourself, but if you fire [defense counsel], this trial will proceed as scheduled. I’ve heard no reason to think that a postponement would be in order under the circumstances ⅛ # ⅛ ⅜ ⁴³⁴ So you can fire him, but then you’re going to be standing there picking a jury tomorrow by yourself.

Before the court asked Mr. Cousins for his final decision regarding the discharge of his counsel, the following exchange ensued, beginning with Mr. Cousins’s concern about the video: [MR. COUSINS]: You ruled on it and you ruled it on something you haven’t even seen, that’s basically, and we was in front of Judge King, okay? And my reason was asking for the witness that I had, who was attorneys at law and was there to review the tape as it was playing in Court, right? Of course, [the prosecutor] going to make everything where he want it to be and I still say he’s a liar and he’s a crook and he’s a cheat and he’s a piece of shit and I will tell him that in his face. [COURT]: Okay.

Well, that, that’s enough. I’ve made my ruling. [MR. COUSINS]: [Defense counsel] is a piece of shit and a liar too. [COURT]: You can discharge [defense counsel] if you wish. [MR. COUSINS]: And I discharge [defense counsel], and that, that police over there is a liar and a piece of shit. [COURT]: You would be extraordinarily— [MR.

COUSINS]: (inaudible) asshole. [COURT]: You would, you would, it would, it would not be in your interest to discharge [defense counsel], [MR. COUSINS]: (inaudible) he’s discharged and may you have a blessed day, asshole. [COURT]: Wait a minute.... Keep him right there. Do you wish to fire [defense counsel]? [MR.

COUSINS]: Yes, I wish to fire [defense counsel]. [COURT]: If, if, if you do that, you are going to be standing in front of a jury box tomorrow with twelve people. [MR. COUSINS]: Guess what? That’s a fair trial. That’s a fair trial. [COURT]: Okay. ⁴³⁵ [MR.

COUSINS]: At least I know where I stand at. [COURT]: And that’s what you wish to do? [MR. COUSINS]: Yes, I’d rather have nobody than to have somebody who ain’t for me and I’d rather be tried. [COURT]: Okay. [MR. COUSINS]: Put your hood on tomorrow, asshole. [COURT]: ... [I] am finding that you knowingly, voluntarily waived your right to counsel. [MR. COUSINS]: That’s right, I waived my right to counsel. [COURT]: So you don’t get to change your mind about that. [COURT]: You’re going to be picking a jury tomorrow, do you understand that, sir? [MR.

COUSINS]: I’m ready to go to trial without att [sic], I don’t have an attorney, okay? I have two State’s Attorneys. In his parting words, Mr. Cousins told the court, ’‘And I don’t have a State’s Attorney. I have an asshole trying to try me.

([I]naudible) [Prosecutor], and you’re still a dickhead.” The trial commenced the following morning.

II

Good Cause to Discharge Counsel In his brief, Mr. Cousins writes that he sought to discharge counsel because of (1) counsel’s failure to introduce the portion of the video-recording from his police interview during the motions hearing and (2) the breakdown of his relationship with his counsel, which included the grievance that he filed. Mr. Cousins contends that the trial court abused its discretion in its February 1, 2016, ruling that he did not have a meritorious reason to discharge his counsel and in not appointing substitute counsel. 5 We reject this contention and hold that the trial court satisfactorily complied with Rule 4-215(e). ⁴³⁶ A. The Applicable Legal Principles A defendant in a criminal case has the right to counsel. U.S. Const, amend. VI.; Md. Const.

Declaration of Rights, Art. 21. But even though an indigent defendant has a right to appointed counsel, that right does not afford an indigent defendant the right to select the appointed counsel of his or her choice. See Dykes v. State, 444 Md. 642, 648 , 121 A.3d 113 (2015). Nor does this right “give an accused an unfettered right to discharge current counsel and demand different counsel shortly before or at trial.” Fowlkes v. State, 311 Md. 586, 605 , 536 A.2d 1149 (1988). “[A] defendant may not manipulate this right so as to frustrate the orderly administration of criminal justice.” Id.

An indigent defendant may waive the right to assistance of counsel and choose to represent him- or herself. Williams v. State, 321 Md. 266, 270 , 582 A.2d 803 (1990). “A defendant has a right to self-representation, but it may be unwise to exercise that right.” Dykes, 444 Md. at 646 , 121 A.3d 113 . Courts will indulge every reasonable presumption against a defendant’s waiver of appointed counsel. Id. at 648 , 121 A.3d 113 . “Maryland Rule 4-215 implements a defendant’s right to waive counsel, and incorporates safeguards to ensure that the defendant is acting knowingly and voluntarily in making that choice.” Dykes, 444 Md. at 651 , 121 A.3d 113 .

The rule provides: (e) Discharge of Counsel—Waiver. If a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request. If the court finds that there is a meritorious reason for the defendant’s request, the court shall permit the discharge of counsel; continue the action if necessary; and advise the defendant that if new counsel does not enter an appearance by the next scheduled trial date, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds no meritorious reason for the defendant’s request, the court may not ⁴³⁷ permit the discharge of counsel without first informing the defendant that the trial will proceed as scheduled with the defendant unrepresented by counsel if the defendant discharges counsel and does not have new counsel.

If the court permits the defendant to discharge counsel, it shall comply with subsections (a)(l)-(4) of this Rule if the docket or file does not reflect prior compliance. “In light of the fundamental rights implicated, Md. Rule 4-215(e) provides a ‘precise rubric[]’ with which we demand ‘strict compliance.’ ” State v. Graves, 447 Md. 230, 241 , 135 A.3d 376 (2016) (quoting Pinkney v. State, 427 Md. 77, 87 , 46 A.3d 413 (2012)). In Dykes , the Court of Appeals outlined the steps a court is required to take when the Rule 4-215(e) process is triggered: (1) The defendant explains the reason(s) for discharging counsel[.] While the rule refers to an explanation by the defendant, the court may inquire of both the defendant and the current defense counsel as to their perceptions of the reasons and need for discharge of current defense counsel. (2) The court determines whether the reason(s) are meri torious[.] The rule does not define “meritorious.” This Court has equated the term with “good cause.” This determination—whether there is “good cause” for discharge of counsel—is an indispensable part of subsection (e) and controls what happens in the third step. (3) The court advises the defendant and takes other action[.] The court may then take certain actions, accompanied by appropriate advice to the defendant, depending on whether it found good cause for discharge of counsel—i.e., a meritorious reason.

Dykes, 444 Md. at 652 , 121 A.3d 113 (citations and quotation marks omitted). In this case, the court afforded Mr. Cousins multiple opportunities to explain his reasons for discharging counsel, which were the same as those articulated in his brief. After Mr. Cousins’s explanations, the court asked if he had “any other ⁴³⁸ complaints [he] wish[ed] to register about [defense counsel’s] misrepresentation of [him].” Later, the court asked if there was “anything else” to say about his motion to discharge counsel. In addition, the court inquired of defense counsel as to his perception of Mr. Cousins’s request for discharge.

Based on what it heard, the court found that Mr. Cousins did not have good cause, and it advised him accordingly. Hence, the central question here is whether the court abused its discretion in finding that Mr. Cousins did not have good cause. In evaluating the trial court’s compliance with Rule 4—216(e),