Crowder v. State

SMITH, Judge. We shall hold in this case that the Court of Special Appeals erred in its determination that appellant Brodie Crowder had “by his own conduct ... waived his right to counsel.” Accordingly, we shall reverse the judgment of the Court of Special Appeals in Crowder v. State (Unreported, No. 1040, September Term, 1984, decided April 19, 1985). Crowder was convicted of burglary in the Circuit Court for Baltimore County and sentenced to a term of twenty-five years imprisonment without the possibility of parole. In affirming that judgment the Court of Special Appeals said: “The record shows that appellant had appeared in court on May 16, 1983, and June 30, 1983.

On both occasions his request for a postponement was in order that he might obtain counsel. He was also advised of his right to be represented by the office of the public defender. Nevertheless, he appeared for trial on September 26, 1983, and insisted that Morris Kaplan was going to repre ⁶⁵⁶ sent him. Kaplan represented the then co-defendant, Taylor, and could not represent appellant.

The court (DeWaters, J.) determined that there was a conflict of interest on Kaplan’s part and that Kaplan could not represent appellant. Judge DeWaters noted that appellant had on several prior occasions been advised to obtain an attorney, but had failed to do so. The court then deemed that he had waived his right to counsel. “An accused is afforded an opportunity to employ counsel of his own choosing, English v. State, 8 Md.App. 330 [ 259 A.2d 822 ] (1969), or if he is indigent, to have an attorney appointed to represent him. Notwithstanding that right, an accused, through the use of postponements, cannot be allowed to manipulate the system in order to preclude the orderly administration of justice.

Although Crowder asserts that he was forced to go to trial without an attorney, we think that by his own conduct he waived his right to counsel. Brown v. State, 50 Md.App. 651 [ 441 A.2d 354 ] (1982). He will not be permitted to manipulate the judicial system so as to delay the trial and then claim a denial of counsel.” We granted Crowder’s petition for a writ of certiorari in order that we might address the important public issue here presented. The Court of Special Appeals recognized in Brown v. State, 50 Md.App. 651 , 441 A.2d 354 (1982), that one might by his conduct waive the right to counsel.

In Howell v. State, 293 Md. 232, 241 , 443 A.2d 103, 107 (1982), we said, “Under certain circumstances, the assertion of the right to counsel, if part of a strategy for delay, may be conduct that constitutes a waiver.” (Citing cases.) See also, Leonard v. State, 302 Md. 111, 126 , 486 A.2d 163, 170 (1985). The doctrine has been recognized in a number of cases. See, e.g., United States v. Weninger, 624 F.2d 163, 167 (10th Cir.), cert. denied, 449 U.S. 1012 , 101 S.Ct. 568 , 66 L.Ed.2d 470 (1980); United States v. Gates, 557 F.2d 1086, 1088 (5th Cir.1977), cert. denied, 434 U.S. 1017 , 98 S.Ct. 737 , 54 L.Ed.2d 763 (1978); United States v. Terry, 449 F.2d 727 , ⁶⁵⁷ 728 (5th Cir.1971); Glenn v. United States, 303 F.2d 536, 541 (5th Cir.1962); United States v. Arlen, 252 F.2d 491, 494-95 (2d Cir.1958); Spevak v. United States, 158 F.2d 594, 597 (4th Cir.1946), cert. denied, 330 U.S. 821 , 67 S.Ct. 771 , 91 L.Ed. 1272 (1947); People v. Guice, 83 Ill.App.3d 914, 918 , 38 Ill.Dec. 837 , 840, 404 N.E.2d 261, 264 (1979), cert. denied, 450 U.S. 968 , 101 S.Ct. 1487 , 67 L.Ed.2d 618 (1981) ; Commonwealth v. Jackson, 376 Mass. 790, 796 , 383 N.E.2d 835, 839 (1978); Commonwealth v. Wentz, 280 Pa.Super. 427, 434 , 421 A.2d 796, 799-800 (1980), appeal dismissed, 495 Pa. 616 , 435 A.2d 176 (1981); State v. Jacobs, 271 S.C. 126, 128 , 245 S.E.2d 606, 608 (1978); State v. Johnson, 33 Wash.App. 15, 22-23 , 651 P.2d 247, 252 (1982) ; Keller v. State, 75 Wis.2d 502, 509 , 249 N.W.2d 773, 777 (1977). In Arlen the court said: “[WJhere a defendant able to retain counsel has been advised by the court that he must retain counsel by a certain reasonable time, and where there is no showing why he has not retained counsel within that time, the court may treat his failure to provide for his own defense as a waiver of his right to counsel and require such defendant to proceed to trial without an attorney.

Such a waiver is similar in its consequences to an election made by an indigent defendant.” 252 F.2d at 494-95 . No useful purpose would be served by a review of what has and has not been regarded by various courts as a waiver of the right of counsel by conduct because such cases are decided upon their own facts on a case by case basis. Hence, we turn to a review of the undisputed facts in this case. A criminal information was filed against Crowder and two others on March 2, 1983.

On March 21 he was brought before one of the judges of the Circuit Court for Baltimore County and advised of his rights under then Maryland Rules 723 and 731, pertaining to the right of counsel and pleas, respectively. 1 Notice of a trial date of May 16, 1983, was filed on April 6. Crowder appeared on May 16 with ⁶⁵⁸ counsel whom he had paid. The attorney also represented Crowder’s brother, a co-defendant. The judge concluded there was a conflict.

Accordingly, at Crowder’s request, a postponement was granted. Crowder waived his right to a speedy trial and his right under then Rule 746 pertaining to a trial date within 180 days. 2 The judge advised him to get counsel within fifteen days or to apply to the Public Defender’s office. On May 18 notice of a trial date of June 30 was filed. On June 30, Crowder appeared before the administrative judge for the purpose of requesting a postponement.

Morris Kaplan, Esq., who was present on behalf of then co-defendant Michael Taylor and requesting a postponement of his own, spoke on behalf of Crowder “in the goodness of [his] heart____” He proffered that Crowder, on the previous occasion that he had been before the court, had been “advised by Judge Raine, I believe, to the effect that his counsel — he had a lawyer, Mr. Cocoros at the time, that his lawyer could not represent a third co-defendant [i.e., Carl Crowder] and Mr. Crowder because it was a conflict of interest, and he had been assured by Mr. Cocoros that another lawyer would be obtained for him, and, as of this date, he has not heard from Mr. Cocoros.” Crowder said further: “[T]he Judge ruled that any money I had gave Mr. Cocoros, for him to give it back, but since he had represented me, all the money I had gave him, he used it as his fee for the previous arraignment, right, and, so, what happened is that he told me that he would get someone to represent me, and, well, when I came here, and, I don’t know, I have called, and his secretary said that he was out but she didn’t say — I assumed that he was coming here, that someone was coming here.” The Assistant State’s Attorney agreed: “It is my understanding that Mr. Cocoros represented [appellant’s] brother, and that’s why it was postponed ⁶⁵⁹ before. He had a conflict and couldn’t represent both Carl Crowder and Brodie Crowder____” The administrative judge said that he “would have to give [Crowder] further opportunity to retain a lawyer under the circumstances if the case is to be tried on solid grounds, as far as his Constitutional right to have a lawyer is concerned.” The judge questioned Crowder with respect to whether he had funds to employ counsel. Crowder stated that he did. He was advised that if he did not he might possibly get the Public Defender to represent him.

Crowder repeated that he was able to employ counsel. Kaplan interjected: “For the record, your Honor, ask him in the event that he was [sic] granted a postponement, to come to my office with Mr. Taylor because I have to discuss the case with both of them, and, at that time, I will recommend a lawyer to him, and I assure the Court that by that Saturday he will have a lawyer, and, furthermore, I will give the Court a firm date.” The administrative judge, at the request of the State, advised Crowder of his rights under then Rule 723. Crowder indicated that he was 33 years of age and had a year and a half of schooling at Essex Community College. He waived his rights under Rule 746 and also waived his right to a speedy trial.

In response to a question from Kaplan, the Assistant State’s Attorney indicated that Kaplan would have a conflict of interest if he were to represent Taylor and Crowder. Kaplan then said, “Then I’m out, okay.” Notice of a trial date of September 26 was filed on July 1. On August 30, Crowder appeared for rearraignment at the request of the State. He was advised of his rights under then Rules 723 and 731.

He indicated that he had attempted to procure the services of Askew Gatewood, Esq., but had not secured his services at that time. The State handed him a card from the Public Defender’s office. ⁶⁶⁰ On September 26, 1983, Crowder appeared for trial. He was asked if he had a lawyer. He replied that he did, Morris Kaplan.

Kaplan was summoned from a nearby courtroom. He was asked if he represented Crowder in