Fowlkes v. State

¹⁰⁴ ROBERT M. BELL, Judge. This case presents for review a trial judge’s ruling, pursuant to Maryland Rule 4-215, that Jeffrey Fowlkes, a/k/a Anthony Johnson, appellant, who had discharged his counsel, represent himself at trial. We find no error; therefore, we will affirm. Effective July 1, 1984, the Court of Appeals promulgated Maryland Rule 4-215, Waiver of Counsel, which included subsection (d), as follows: 1 (d) Discharge of counsel—Waiver.—If a defendant requests permission to discharge an attorney whose appear ¹⁰⁵ anee 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 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. Prior to the promulgation of Rule 4-215 the Maryland Rules contained no equivalent provision to subsection (d); there was no Rule which specified the procedure attendant to, or the consequences of, a defendant’s decision to discharge trial counsel at the eleventh hour for a non-meritorious reason.

Subsection (d) therefore introduced a new proce ¹⁰⁶ dure, but not necessarily a new approach, see former Md. Rule 723, 2 into the Maryland Rules concerning waiver of counsel. The Court of Appeals and this Court have previously considered the question raised by this appeal—whether a ¹⁰⁷ defendant who is dissatisfied with his counsel, requests his discharge and is required to proceed to trial without counsel waives or is denied his constitutional right to counsel. See Howell v. State, 293 Md. 232 , 443 A.2d 103 (1982); State v. Renshaw, 276 Md. 259 , 347 A.2d 219 (1975); Brown v. State, 50 Md.App. 651 , 441 A.2d 354 (1982); Myer v. State, 49 Md.App. 300 , 431 A.2d 738 (1981); Wright v. State, 32 Md.App. 60 , 359 A.2d 1 (1976). Their conclusions have been largely consistent and generally against finding waiver.

But see Mitchell v. State, 56 Md.App. 162 , 467 A.2d 522 (1983). In State v. Renshaw, supra, the defendant, expressed dissatisfaction with the representation he was receiving from the assistant public defender and asked the court to appoint new counsel. After inquiring into the reasons for the requested change, the trial court denied the request, refused to force counsel to represent the defendant and declined to continue the case; however, the court did require counsel to stand by for consultation if the defendant desired. When the defendant elected not to participate in the trial, the trial judge advised standby counsel, “Mr. Renshaw has elected to proceed without your help.

But, if I were you, I would not do anything unless Mr. Renshaw asked you to do it____,” Id. 276 Md. at 263 , 347 A.2d 219 , advice that counsel followed. The Court of Appeals, disapproving the treatment of the defendant’s “expression of dissatisfaction with assigned counsel, his request for a change of counsel and his silence as a waiver of the right to counsel and an election to proceed in proper person”, Id. at 264 , 431 A.2d 738 , held that the defendant “had not waived and was instead denied his constitutional right to counsel”. Id. The Waiver of Counsel Rule then applicable was Md. Rule 719. 3 ¹⁰⁸ In Howell v. State, supra, the defendant’s privately retained counsel was permitted to strike his appearance prior to trial.

Insisting that he wished to be represented by counsel and refusing to waive his right to be tried within 180 days, pursuant to then Maryland Rule 746 a. (present Rule 4-271(a)), the defendant was referred to the office of the Public Defender. The Public Defender’s office found the defendant eligible for its services, but, being unprepared, due to the seriousness of the charges, e.g. conspiracy to commit murder and second degree murder, to proceed to trial within two weeks, it refused to represent him unless he agreed to a postponement of the trial. The defendant refused and, instead, continued to insist upon representation and trial within 180 days.

The trial judge treated the defendant’s conduct as a waiver of his right to counsel and required that he represent himself at trial. The defendant, although unrepresented, repeatedly asserted, during the trial, that he wanted counsel and denied waiving that right. This court’s decision affirming the judgment of the trial court was reversed on the authority of State v. Renshaw, supra. Without referring to the waiver of counsel rule, the Court of Appeals found that there was neither an express waiver of the right to counsel, nor circumstances warranting a finding that the defendant’s conduct constituted waiver of the right. ¹⁰⁹ In Myer v. State, supra, the defendant sought a continuance of his trial, advising the court that he wished to fire present counsel and obtain new counsel.

Although his request was denied by the administrative judge, he persisted in his refusal to be represented by his counsel of record and, at the same time, insisted that he could not defend himself. The public defender summoned by the trial judge, because of his unfamiliarity with, and the seriousness of, the case, refused to represent the defendant unless the case were continued. The trial proceeded with appellant being required to represent himself, the trial judge having previously signed an order striking the appearance of counsel of record. This court considered the dispositive issue to be “whether the record discloses that the appellant waived his right to counsel either affirmatively or by neglecting or refusing to obtain counsel.” Id., 49 Md.App. at 306 , 431 A.2d 738 ; Md. Rule 723 c.

Then, relying on Renshaw v. State, we reversed, finding that “the trial judge explained the requirements of the latter portion of the standard [Rule 723 c and d] to the appellant ad nauseam but at no point in the record did the appellant waive his right to counsel. As a matter of fact, the appellant consistently contended that he was not competent to represent himself and that he did desire a lawyer and a thirty day continuance to secure another lawyer to replace his lawyer of record.” Id. at 307 , 431 A.2d 738 . We also noted: In the case at bar the trial court had before it competent counsel who had represented appellant over a period of six months; filed and argued motions to suppress evidence on at least two occasions; was thoroughly familiar with the facts and law of the charges against the appellant; and was fully prepared to try the case. The trial judge elected to permit counsel to withdraw from the case and to leave the appellant without counsel.

The court could have required counsel to assume his place at trial table, even in the face of appellant’s objections, and to offer appellant whatever legal assistance was appropriate. Under these circumstances, had the appellant re ¹¹⁰ fused to accept the legal assistance offered or elected to remain silent (as he did in this case), then his actions might have amounted to a waiver of the Sixth Amendment right to counsel. The trial judge, by permitting counsel’s withdrawal before the beginning of the trial, left the appellant without any legal representation whatsoever despite the appellant’s insistence that he wished to be represented by counsel. Id. at 309 , 431 A.2d 738 .

In Wright v. State, supra, the question presented was whether the trial court complied with Maryland Rule 719 c. prior tlo requiring the defendant to proceed without counsel. A defendant, who had been represented by the Public Defender's office for three days of pretrial motions and two days of trial, requested a change of counsel at the conclusion of the State’s case and after his motion for judgment of acqjuittal had been denied. After inquiry, the trial judge found no sufficient cause for substitution of counsel and denied the request. The defendant was given the option of proceeding with assigned counsel or representing himself; however, “if [the defendant] elected to represent himself, assigned counsel would sit at the trial table to assist in his defense, if requested”.

Perceiving the issue to be whether appellant had waived his constitutional right to assistance of counsel, we held that defendant had not voluntarily relinquished his right to counsel. We therefore reversed, pointing out that: The fair administration of justice and the appellant’s constitutional right to counsel are not incompatible goals; both could have been accomplished in the present case if the trial court, after denying appellant different counsel, had (1) “ordered counsel to continue to render the fullest possible legal representation under the circumstances, with or without the cooperation of the defendant ... or (2) conducted an inquiry to determine whether the appellant, after indicating he would represent himself, fully ¹¹¹ comprehended the factors set forth in Maryland Rule 719 c ... (Citations omitted) Id. [32 Md.App.] at 64, 359 A.2d 1 . Because these cases were decided prior to the adoption of subsection (d), and when there was no comparable Rule, they are easily distinguished from the case sub judice.

In fact, it is this distinction that presents the difficulty in this case. Different results, for different reasons, were reached in Brown v. State, supra and Mitchell v. State, supra. In Brown , the defendants, who appeared without counsel, sought and obtained a continuance to get counsel. At that time, they were told that if they did not obtain counsel or the public defender by the time they returned for trial, they could be required to proceed without counsel.

When the defendants once again appeared without counsel, their request for postponement to get counsel was denied and they were required to proceed to trial without counsel. This court, applying former Md.Rule 723, affirmed their convictions, finding Renshaw, supra, and Snead v. State, 286 Md. 122 , 406 A.2d 98 (1979) 4 inapposite. In Mitchell, defense counsel informed the trial judge prior to the start of trial that he had been discharged. The defendant, by way of explanation, told the judge that he was not satisfied that counsel, who was the partner of the lawyer whom the defendant had hired and consulted, was “sufficiently familiar” with the case, and he was particularly concerned that counsel had not complied with his request to be furnished with a transcript of the preliminary hearing. ¹¹² The trial judge denied the defendant’s postponement request and ordered that the defendant’s initial counsel and counsel in court be present to represent the defendant.

Following the impaneling of the jury and the State’s opening statement, the defendant advised the court that he wanted neither lawyer to represent him. The court advised the defendant: You have two choices. Either you fire both these lawyers, that is your right, but then you are representing yourself. You are not going to postpone this case for the appointment of any further counsel.

Mr. Steinhorn advises me that he is fully prepared to try this case. Id., 56 Md.App. at 166 , 467 A.2d 522 . And after the court had conducted a full and complete waiver hearing pursuant to Md.Rule 723 c, the defendant albeit reluctantly, stated, both out of and in the jury’s presence, that he elected to represent himself. On appeal, the defendant contended that the trial court erroneously inferred from his request for new counsel that he desired to proceed without counsel.

After reviewing the cases, we disagreed and found that appellant waived his right to counsel. We first pointed out that “we cannot allow the judicial system to be brought to a grinding halt by a perversion of [a defendant’s Sixth Amendment] rights through eleventh hour attempts to abort criminal trials,” Id., 56 Md.App. at 177 , 467 A.2d 522 , and then we rejected the argument that the defendant’s election was coerced: The court required the trial to go forward; the election of either self-representation or continuing with experienced counsel was left to appellant. All of the hazards were explained to him. It matters not that his choice was reluctantly made.

At appellant’s express request the jury was advised that counsel were not representing him. The court, however, explaining that counsel was learned in the law and, in all probability, would be helpful m answering questions that may arise, required one attorney to remain to assist appellant. In sum, appellant was ¹¹³ allowed to represent himself with the assistance of counsel. Nothing more is required.

Id., 56 Md.App. at 177-78 , 467 A.2d 522 . We now set out the facts to properly frame the issue. Appellant was charged with possession of paraphernalia. His trial was set for March 13, 1985 in the Circuit Court for Baltimore City.

Prior to that date, he appeared without counsel before a judge of that court and was advised by the judge of his right to counsel and the potential consequences of failure to obtain counsel. Appellant acknowledged receipt of a form setting forth the rights of which he had been advised. Appellant appeared at trial represented by an assistant public defender. He refused the State’s offer of a plea agreement, 5 entered a plea of not guilty and elected to be tried by a jury.

During argument on appellant’s motion in limine, appellant questioned his attorney’s familiarity with his case, advised the court that he no longer wished her to represent him, asked that she be replaced by new counsel, and requested a continuance for the purpose of retaining new counsel. After inquiry and, having asked that another assistant public defender be sent over to interview appellant, the court made clear that the case should not be postponed “simply because you don’t want Miss Shepard to represent you. You can represent yourself.” Appellant, for his part, was equally emphatic that he did not desire to represent himself: “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.” With appellant’s permission, counsel completed argument on the motion in limine, which was denied, and withdrew a previously filed motion to suppress.

Appellant was then allowed to consult with another public defender, who subse ¹¹⁴ quently advised the court that he was prepared to try the case, but only with counsel of record as lead counsel. Appellant rejected that arrangement, and, instead, asserting that he had sufficient funds to retain private counsel, sought a postponement. After counsel had been heard respecting her efforts on behalf of appellant, specifically, that two of appellant’s three witnesses were in court and the third could not be located, the following occurred: THE COURT: What I was trying to do was come up with a solution for your present problem, and since 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 at Rule 4-215 d, which gives 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 have been incarcerated, right?

I have been incarcerated, therefore, now I am getting a little brief more on the case as I just come back from across the street, and it seems that the evidence they got, or where they’re supposed 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. ¹¹⁵ THE COURT: Well, Mr. Fowlkes you were indicted on July 2, 1984, in criminal information or— Mr. Janor: A warrant case. THE COURT: And you appeared for arraignment on August 29, 1984. 6 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 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 these 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 ¹¹⁶ scheduled. There was a prior postponement on 12/6/84. 7 ****** 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 DOC I haven’t seen talked about it. MR.

GILBERT: The defendant was not in the Department of Correction until recently, last— MR. FOWLKES: January 9. MR. GILBERT: On December 6 when Mr. Fowlkes was in Part 22, in front of Judge Ward, in fact, I saw him outside when I was having lunch, and he attempted to