Fowlkes v. State

⁵⁸⁹ ELDRIDGE, Judge. The Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights provide that, in all criminal prosecutions, a defendant has the right to the assistance of counsel. Nonetheless, a defendant may waive the right to counsel, provided “he knows what he is doing and his choice is made with his eyes open.” Adams v. United States ex rel. McCann, 317 U.S. 269, 279 , 63 S.Ct. 236, 242 , 87 L.Ed. 268, 275 (1942).

Under the Sixth Amendment, a defendant also has an independent right to reject the assistance of counsel and to elect to represent himself. Faretta v. California, 422 U.S. 806, 807 , 95 S.Ct. 2525, 2527 , 45 L.Ed.2d 562 (1975). A defendant may exercise his Faretta right of self-representation only if he knowingly, intelligently, and voluntarily waives his right to counsel. Parren v. State, 309 Md. 260, 266 , 523 A.2d 597, 599-600 (1987).

If a defendant waives the right to counsel and asserts his Faretta right of self-representation, the trial court must permit him to represent himself. See Faretta, supra, 422 U.S. at 836 , 95 S.Ct. at 2541 , 45 L.Ed.2d at 582 ; Snead v. State, 286 Md. 122, 130 , 406 A.2d 98 (1979). The interplay among the right to counsel, waiver of the right to counsel, and the Faretta right of self-representation, has posed problems when, shortly before or at the beginning of trial, a defendant makes an unmeritorious demand for the discharge of current counsel and for the appointment or retention of different counsel, and where, as is usually the situation, the appointment or retention of new counsel would require a trial postponement. If the trial judge properly refuses to grant such demand, a defendant will often attempt to delay the proceedings by refusing either to proceed with current counsel or to make an affirmative election of his Faretta right of self-representation.

In such circumstances, where a postponement would be improper, the trial judge is faced with the dilemma of forcing the defendant to trial without an attorney or forcing the defendant to proceed with an unwanted attorney. ⁵⁹⁰ In 1975, in State v. Renshaw, 276 Md. 259, 267 , 347 A.2d 219, 225 (1975), this Court held that, in these circumstances, the defendant’s demand for different counsel does not constitute a waiver of the Sixth Amendment right to counsel. The Court took the position that, under the federal Constitution, the trial court must require current counsel to continue providing legal representation in this situation, notwithstanding the defendant’s objections ( 276 Md. at 270 , 347 A.2d at 227 ). In 1984, we promulgated Maryland Rule 4-215(e), 1 which permits a trial court, in some circumstances, to treat such a demand as a waiver of the right to counsel and to require the defendant to represent himself. The principal question in this case concerns the validity of the rationale underlying Renshaw , and the apparent conflict between Renshaw and provisions of Rule 4-215(e).

I. The pertinent facts are as follows. On July 2, 1984, the State filed a criminal information against the defendant Jeffrey Fowlkes, charging him with having unlawfully possessed narcotics paraphernalia. On August 28, 1984, the defendant appeared before the Circuit Court for Baltimore City, which set a trial date. At that time, the defendant was unrepresented by counsel and signed a “Notification of Right to Counsel.” 2 The defendant appeared for trial on December 6, 1984, but the court postponed his case because of a crowded docket.

At that time, he was represented by an attorney from the Office of the Public Defender. After ⁵⁹¹ purporting to “waive” the statutory requirement that a circuit court criminal defendant ordinarily be tried within 180 days, 3 the defendant again appeared for trial on March 13, 1985; an Assistant Public Defender, Bridget Shepherd, was present representing him. At the beginning of the trial proceedings, the State offered a plea bargain agreement. Under this agreement, in exchange for a guilty plea, the State would recommend a maximum sentence of thirty days imprisonment to be served concurrently with a term of imprisonment that the defendant was then serving.

Ms. Shepherd attempted to place it on the record that the defendant had rejected her recommendation to accept this agreement. The trial court inquired as to whether the defendant understood that, if tried and convicted, he could receive up to a maximum of four years imprisonment. The defendant replied that he knew what he was doing. As the parties awaited the arrival of the potential jurors, Ms. Shepherd began to argue a motion in limine on the defendant’s behalf.

While Ms. Shepherd was addressing the court, the defendant interrupted, stating that Ms. Shepherd did not have “the true evidence.” 4 The judge instructed the defendant to address the court through his attorney, but the defendant responded: “I don’t think she is any help to me anyway. If possible I would rather get rid of her, get new attorney.” The judge assured the defendant that his attorney was “highly competent” and “could represent [him] well.” The transcript then shows the following exchange: ⁵⁹² “THE COURT: All right. Now, are you telling me that you do not want Miss Shepherd to represent you any more? MR.

FOWLKES: Yes. THE COURT: Do you wish to represent yourself? MR. FOWLKES: No. I’d rather have a private attorney, or get another attorney, because I feel as though the offer I have been offered today, I don’t feel this attorney going to be any help to me.

THE COURT: I don’t think it is going to be possible, but I will ask Miss Shepherd if another Public Defender can come over. Is that possible? . MS. SHEPHERD: I can call my office.

THE COURT: I am not postponing this case simply because you don’t want Miss Shepherd to represent you. You can represent yourself. MR. FOWLKES: I am not representing myself neither.

I want somebody who knows legal law, what’s going on with the case, which she is not doing.” Ms. Shepherd succeeded in obtaining the appearance of another Assistant Public Defender, Stanley Janor. When Mr. Janor arrived, the trial judge announced a recess, but advised the defendant that at the end of the recess he would have to decide whether he wanted Mr. Janor to represent him. “[I]f not,” the judge warned, “you are going to have to represent yourself, because we are going to try this case today.” When the proceedings resumed, Mr. Janor stated that the two Assistant Public- Defenders had told the defendant that they would represent him but that Ms. Shepherd would have to serve as lead counsel, with Mr. Janor assisting her in certain phases of the trial. Mr. Janor reported that the defendant had objected not only to that arrangement but also to the trial going forward under any circumstances. At that point, the defendant interrupted.

In a lengthy monologue, he claimed to have money to hire a private attorney, repeated his charge that the two Assistant Public ⁵⁹³ Defenders did not have “the true facts,” and complained that one of his witnesses had not appeared. Ms. Shepherd immediately responded that her office had summoned all three of the defendant’s witnesses, that two had appeared, and that the third was absent only because the defendant had not provided an accurate address. The transcript then shows that the following occurred: “THE COURT: ... [SJince you don’t want Ms. Shepherd to represent you now, you have a right to discharge your attorney. And I am looking at the Maryland Rules right now ..., which give you the right to discharge your attorney.

MR. FOWLKES: Right. THE COURT: I have the right though to determine whether your reason for discharging your attorney is meritorious. And we did offer you the possibility the Public Defender’s Office offered you a possibility of having Mr. Janor join Ms. Shepherd, and you are now telling me you are turning down that offer.

Is that right? MR. FOWLKES: Yes____ [I]t seems that the evidence they got, or where they suppose to be representing me to help me, it don’t show somewhere in fact that I could be represented by them on behalf of honesty. The way it go in the case, it don’t seem right.

I rather go ahead get a private attorney. Go through the record. I feel they haven’t had enough time to work on my case. They probably look like the case, seen like similar circumstances, evidence, nature of crime don’t add up to the folders up out front.

THE COURT: Well, Mr. Fowlkes, you were indicted on July 2nd, 1984 in Criminal Information or— MR. JANOR: A warrant case. THE COURT: And you appeared for arraignment on August 29th, 1984. MR.

FOWLKES: Uh-huh. THE COURT: It appears to me that you have had plenty of time to obtain counsel of your choice, and that ⁵⁹⁴ Ms. Shepherd has had plenty of time to prepare this case, and is ready to try the case, and is prepared to try the case, and that your summonses, your witnesses have been summonsed. That one witness was not summonsed because the address was a bad address, and I can find no meritorious reason for you wanting to discharge your counsel, but I can’t force you to have counsel that you don’t want to have. So the only choice you have, as I see it, and I would like either counsel in the case to correct me, or any counsel correct me if I am wrong, is that you are deciding to defend yourself, because I am going to try this case today?

MR. FOWLKES: No possible way I can defend myself. I am saying I can’t represent myself in some behalf, but I am saying the whole possible nature of the crime is not going to add up to the point me trying to go out there with these twelve jurors, and these two police officers and three witnesses here. That’s why I am incarcerated now going back on appeal, because of the same similar case I am trying to fight for now, and I am not going to go through it a second time.

It’s unreasonable. THE COURT: Well, I have made the decision that your reasons are not meritorious, and that you are going to—we are going to proceed with this trial today as scheduled. There was a prior postponement on 12/6/84. MR.

FOWLKES: It was the State, wasn’t it, who was—it was behalf of. * * * * * * MR. GILBERT [PROSECUTING ATTORNEY]: Not specifically. The Court postponed the case because of a crowded docket. It was already involved in a jury trial.

MR. FOWLKES: I am on bail. I should have a right to postpone my first trial. It just don’t add up right.

I mean, the State postponed the—it once. I got rights to postpone it too? Therefore should show— THE COURT: Do you want to say anything? ⁵⁹⁵ MR. GILBERT: Yes, Your Honor.

The Defendant has had plenty of time to retain private counsel. He has had over six months since the time of his arrest. MR. FOWLKES: In D.O.C. I haven’t seen talked about it.

MR. GILBERT: The Defendant was not in the Department of Correction until recently, last— MR. FOWLKES: January 9th. MR.

GILBERT: ... He has been as free as a bird, Your Honor, until January, and that’s plenty of time. When he was arrested, when he was charged in the District Court on the back of his statement of charges, which he signed, there is a notation there that he has a right to a Public Defender or private counsel. THE COURT: All right.

Well, I have made my decision, Mr. Fowlkes, and you will have to do what you want to do based on that, but I am ruling that your request is not meritorious. I am going to permit you to discharge counsel, because I cannot force you to take them or them to take you, but I do think it is necessary to make sure for the record that you understand what you are doing. Mr. Gilbert, could you qualify him? MR.

FOWLKES: You say I have plenty of time? THE COURT: As to—listen to what he is doing. MR. GILBERT: Mr. Fowlkes, as you know I am Robert Gilbert.

I am an Assistant State’s Attorney. You know you have been assigned two Public Defenders to represent you? MR. FOWLKES: I don’t need two.

That’s what I am trying to tell you. MR. GILBERT: Are you under the influence of any drugs or alcohol? MR.

FOWLKES: No, I am not. MR. GILBERT: Are you under the care of a psychiatrist? MR.

FOWLKES: No, I am not. ⁵⁹⁶ MR. GILBERT: Have you ever received any psychiatric treatment? MR. FOWLKES: No, I have not.

MR. GILBERT: Okay. Do you understand your right to have an attorney? MR.

FOWLKES: Yes, I do. MR. GILBERT: Okay. Do you understand that we cannot postpone this case forever so you may get— MR.

FOWLKES: That’s what I am saying. MR. GILBERT: Do you understand that Judge Friedman, O’Farrell Friedman has instructed you that this case will not be postponed again because of the number of prior postponements. Do you not?

MR. FOWLKES: How many prior ones for the State? MR. GILBERT: Well, do you understand what the Court’s point of view is, don’t you?

MR. FOWLKES: Yes, I do. MR. GILBERT: Okay.

You understand we are past the point of arguing whether that is appropriate or not? MR. FOWLKES: Right. Now I am saying okay.

MR. GILBERT: Do you wish to have Ms. Shepherd and Mr. Janor represent you, or do you wish to have them sit with you and advise you at trial? MR. FOWLKES: No, I don’t.

MR. GILBERT: You don’t wish that? MR. FOWLKES: If she said I am going ahead and me try it, or what the decision going to be with them twelve jurors out there, and I am asking for a private attorney, and if it’s possible I cannot have none, I am saying on the transcript will tell itself.

I go with the trial to a point. I am getting violated all my rights. I am to point I feel as though my rights have been violated. So if it’s not possible I can’t postpone the case I will go with the trial under the circumstances.

I am going to appeal it anyway. MS. SHEPHERD: Well, who do you want to represent you, Mr. Fowlkes? Yourself or Mr. Janor and myself? ⁵⁹⁷ MR.

FOWLKES: I’d rather have a private attorney. MS. SHEPHERD: That choice you don’t have. Your only choice is Mr. Janor and myself.

And let me explain it to you, you know a lawyer can be of some assistance. That they can tell you how to pick the jury. They can make legal argument for you. They know the proper way to ask questions.

You may want to get some information in, but you may not be able to word the questions correctly, and a lawyer could offer you assistance you may not be able to do on your own. Do you understand that? MR. FOWLKES: As far as me?

I’m not going to strike no jury or State’s Attorney can strike a jury or the Public Defender, whatever. I am saying as far as me, I’m not participating in the case. Therefore, you can hand out the sentence, whatever. I’m rejecting an appeal.

That’s what I’m saying. Give me an appeal bond. That’s all I can say. THE COURT: All right.

Fine then. I have made the decision. I think you understand the choices that you have, and what you have done. So although you are discharging your counsel, I am permitting you to do that.

I find your decision to do so is not meritorious. That you had ample time to obtain an attorney. This case has dragged on long enough. sfc 5}: jj; # s¡¡ I would like you for the record to state you’re asking this Court to discharge both Ms. Shepherd and Mr. Janor. MR.

FOWLKES: Yes. Just bring the witness and I will appeal it. THE COURT: Thank you. MR.

FOWLKES: I ain’t trying to get tried. MS. SHEPHERD: Are we excused or would you like us to sit for assistance if needed? THE COURT: Well, sit for assistance if needed.

MS. SHEPHERD: That’s okay. MR. JANOR: That’s okay. ⁵⁹⁸ THE COURT: Okay.

Yes, you will accept it or not? MR. FOWLKES: No. THE COURT: You are excused. MR.

JANOR: Thank you, Your Honor. (WHEREUPON: COUNSEL FOR THE DEFENSE WERE EXCUSED)” The proceedings continued. The jury found the defendant guilty, and the court sentenced him to six months imprisonment. The defendant appealed to the Court of Special Appeals, which affirmed.

Fowlkes v. State, 67 Md.App. 102 , 506 A.2d 660 (1986). The defendant then filed a petition for a writ of certiorari, presenting the following question: “Did the court below err in holding that Md.Rule 4-215(e) abrogates the rule of State v. Renshaw, 276 Md. 259 [ 347 A.2d 219 ] (1975), and thus, that the trial court did not err in failing to protect petitioner’s constitutional right to counsel and instead compelling petitioner to represent himself at trial, after petitioner, on the morning of the first day of trial, refused to ‘allow’ his assigned public defender to represent him, while at the same time insisting that he did not want to represent himself but merely wanted different counsel?” Because of the important issue presented, we granted the petition. We shall affirm.

II

In State v. Renshaw, supra, 276 Md. 259 , 347 A.2d 219 , the defendant, who was charged with escape and assault and battery, attempted, on the morning of trial, to discharge his attorney (an assistant public defender) and to have the court appoint new counsel. The defendant claimed that his attorney believed him to be lying and that the defendant, in turn, lacked confidence in the attorney. Viewing this as an unmeritorious request and an attempt to delay the proceedings, the trial court denied the request for appointment of new counsel; however, the court advised ⁵⁹⁹ the defendant that he could “conduct [his] own case” and that his attorney would provide any assistance that the defendant requested. At a bench conference, after some discussion between the trial court and the defendant, the court advised the defendant’s attorney: “Mr. Renshaw has elected to proceed without your help.

But, if I were you, I would not do anything unless Mr. Renshaw asks you to do it.” Thereafter, neither the defendant nor the attorney participated in any substantial manner, 5 and the defendant was convicted. The Court of Special Appeals reversed on nonconstitutional grounds, holding that the trial court erroneously permitted the defendant to waive his right to counsel without conducting the waiver inquiry required under former Maryland Rule 719 c. Renshaw v. State, 25 Md. App. 270, 333 A.2d 363 (1975). This Court affirmed, but on different, broader grounds.

This Court in Renshaw initially took the position that the trial court and the Court of Special Appeals erred in treating the defendant’s actions as constituting a waiver of the right to counsel ( 276 Md. at 264 , 347 A.2d at 223 ). Instead, the Court stated ( 276 Md. at 264 , 347 A.2d at 223 ): “We shall affirm the decision of the Court of Special Appeals, not because we think the trial court erred by allowing appellee to waive his right to counsel without first observing the requirements of Rule 719 c, but because in our opinion he had not waived and was instead denied his constitutional right to counsel.” The Court went on to emphasize that the defendant did not “indicate a desire or inclination to waive representation” and that at no time “did he express a desire to proceed in proper person” ( 276 Md. at 266 , 347 A.2d at 225 ). After discussing the Faretta right of self-representation, the Renshaw opinion indicated that where the accused does not effectively waive counsel and elect his Faretta right of self-representation, “the court ⁶⁰⁰ must take steps to insure that the accused is represented by counsel even if he professes his unwillingness to have a lawyer.” 276 Md. at 268 , 347 A.2d at 226 . The Court continued (ibid.): “[W]here the accused fails to waive his right to counsel by making an unequivocal choice, but merely insists on a different lawyer, effective legal representation must be required by the court.” Consequently, the Court concluded ( 276 Md. at 270 , 347 A.2d at 227 ): “No waiver having been made here, the trial court should have ordered counsel to continue to render the fullest possible legal representation under the circumstances, with or without the cooperation of the defendant____” Thus, under the Renshaw opinion, the following dichotomy appears to exist when a defendant makes an unmeritorious request to discharge counsel at or on the eve of trial: either the defendant waives the right to counsel by expressly and unequivocally renouncing any desire for any legal representation whatsoever or, there having been no waiver, the trial court must order current counsel to remain in the case despite the defendant’s objections.

Renshaw does not seem to acknowledge a third possibility that, by his actions, a defendant might waive the right to counsel even while asserting, adamantly or ambivalently, that he desires some legal representation. Renshaw seems to take the position that a defendant cannot waive the right to counsel unless he is willing to exercise his Faretta right of self-representation. Although this Court has never expressly reexamined Renshaw, we have departed somewhat from the rationale of that opinion. A few years after Renshaw, in Snead v. State, supra, 286 Md. 122 , 406 A.2d 98 , we indicated that a defendant might waive the right to