Hargett v. State

Kim Hargett v. State of Maryland No. 1809, Sept. Term 2019 Opinion by Shaw Geter, J. Criminal Law > Pretrial Procedures > Request to Discharge Counsel Meaningful trial proceedings had not commenced on the day of trial when the trial judge summoned the venire panel to the courtroom, but they had not arrived or entered the courtroom to begin jury selection when the defendant made a request to discharge counsel, making the procedural requirements of Md. Rule 4-215 mandatory. Criminal Law > Pretrial Procedures > Request to Discharge Counsel In assessing a defendant’s request to discharge counsel, the trial judge should consider the following factors: (1) the merit of the reason for discharge; (2) the quality of counsel’s representation prior to the request; (3) the disruptive effect, if any, that discharge would have on the proceedings; (4) the timing of the request; (5) the complexity and stage of the proceedings; and (6) any prior requests by the defendant to discharge counsel. Criminal Law > Pretrial Procedures > Request to Discharge Counsel Trial judge strictly complied with the mandatory requirements of Md. Rule 4-215 when he gave the defendant an opportunity to explain his reasons for wanting to discharge his attorney, implicitly found that the reasons lacked merit, and instructed the defendant that if he discharged his attorney, he would have to represent himself at trial beginning that day. Circuit Court for Baltimore City Case No. 509015028 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1809 September Term, 2019 ______________________________________ KIM HARGETT v. STATE OF MARYLAND ______________________________________ Shaw Geter, Reed, Salmon, James P.

(Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Shaw Geter, J. ______________________________________ Filed: November 19, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-11-19 12:39-05:00 Suzanne C. Johnson, Clerk In 2009, Kim Hargett, appellant, was convicted by a jury sitting in the Circuit Court for Baltimore City of robbery, attempting to obstruct justice, and suborning perjury. 1 The circuit court imposed a sentence of 25 years without the possibility of parole for robbery and concurrent sentences of five and ten years, respectively, for attempting to obstruct justice and suborning perjury. Appellant’s convictions were affirmed on direct appeal. Kim Lee Hargett v. State, No. 1479, Sept. Term 2009 (filed Dec. 20, 2010), cert. denied, 418 Md. 587 (2011) (“Hargett I”).

In 2019, the circuit court granted appellant’s petition for post-conviction relief, permitting him to file a belated second direct appeal to raise a claim that had been omitted from his first direct appeal due to ineffective assistance of counsel. In this appeal, appellant asks one question, which we have rephrased as: Did the circuit court err or abuse its discretion by denying appellant’s request to discharge counsel on the first day of trial, prior to the commencement of jury selection? For the following reasons, we answer that question in the negative and shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS The underlying facts pertaining to the charges against appellant are largely irrelevant to the sole issue on appeal and were fully set out in this Court’s prior unreported opinion in the first direct appeal.

Briefly, the charges against appellant arose from the robbery of an 84-year old man, Dr. Wilbur E. Favor, in East Baltimore. Hargett I at 1. 1 Appellant was acquitted of one count of robbery with a deadly weapon. Appellant accosted Dr. Favor as he got out of his car and stole his wallet. Id. at 1–2.

The police arrested appellant the next day near Security Square Mall after he attempted to use Dr. Favor’s credit card to make a purchase. Id. at 2–4. Appellant gave a statement to the police in which he claimed he had found Dr. Favor’s wallet on Fayette Street when he was transferring between busses. Id. at 4–5.

After Dr. Favor had identified appellant as his assailant from a photographic array and at a pre-trial hearing, he received a phone call from an unknown woman who told him he had “made a mistake” and that there were men who were friends with appellant who wanted to “‘persuade [Dr. Favor] that [he] made a mistake.’” Id. at 5. Appellant’s friend, Violet Williams, later testified at trial that she had called Dr. Favor, at appellant’s request, and that appellant had directed her to ignore court summonses and to lie about where appellant told her he found the credit cards, which was different from what he told the police. Id. at 7. Appellant, who was represented by an attorney from the Office of the Public Defender, appeared for a pretrial motion hearing on June 2, 2009.

At the end of the hearing, the trial judge stated that jury selection would begin the next afternoon, at 2 p.m. Appellant attempted to speak to the court a minute later, saying, “Your Honor.” The trial judge told him that he had a lawyer and to speak to his lawyer, not to the court. The proceedings then adjourned for the night. 2 The next afternoon, at 2:19 p.m., the parties appeared for trial.2 Before the case was called, the trial judge asked someone, in an apparent reference to the venire panel: “So, Santa Claus, when they going to get here?” The record does not reflect a response. The State called the case and counsel introduced themselves.

The court asked counsel if they had reviewed “each other’s Voir Dire” and they each replied in the affirmative. At that moment, appellant interjected: “Your Honor, I’m trying to waive my counsel.” The following colloquy ensued: THE COURT: You’re trying to waive your counsel? [APPELLANT]: Yes. He’s bias and prejudice against me. It’s been going on for 14 months and I have reason. [DEFENSE COUNSEL]: It’s not true. [APPELLANT]: Excuse me.

And I have reasons. THE COURT: Mr. Hargett. All right. Let me make sure you understand what you’re doing.

Swear in, please. After appellant had been sworn, the court inquired as to his age, his education level, his mental health, and whether he was under the influence of drugs or alcohol. The court then advised appellant about the charges against him and the maximum penalties that could be imposed on some of the charges. The court further advised appellant about the assistance an attorney could provide at trial, including determining whether to elect a bench 2 The portion of the transcript that preceded the start of voir dire was not included in the transcripts prepared for appellant’s first direct appeal.

Consequently, appellant’s request to discharge his counsel was not apparent from the record and his attorney did not raise the propriety of the denial of that request in Hargett I. This was the basis upon which post-conviction relief was granted, resulting in the instant appeal. 3 trial or a trial by jury; assisting with the selection of a jury; objecting to inadmissible evidence at trial; advising appellant as to whether to testify in his case; and deciding whether and whom to call as witnesses in his defense. The trial judge explained that he could not “force [appellant] to have a lawyer but I think Shakespeare is right when he says, anybody who represents themselves has a fool for a client.” If appellant “insist[ed]” on discharging his counsel, the court emphasized that his “case would not be postponed” and appellant would “have to pick the jury on [his] own . . . [and] represent [himself] in trial.” After confirming that appellant understood, the court inquired “And what is your pleasure?” The following ensued: [APPELLANT]: Your Honor, my pleasure is to try to seek another counsel, cause as I just said – THE COURT: It’s not going to be postponed. When you come through that door, my job is to try the case, so it’s not going to be postponed for you to seek other counsel. And I can tell you, after being a judge 24 years, the Office of the Public Defender is not going to appoint any other counsel for you.

So, unless you’ve got a lawyer who’s prepared to walk through that [door] before that jury gets here, your choices are to let [defense counsel] represent you or represent yourself. [APPELLANT]: I can’t tell you my – a situation where I think it’s best to seek another counsel? THE COURT: Nope. Because that’s attorney/client privilege and I don’t – [APPELLANT]: That’s what’s been broken, Your Honor. That’s what’s been broken.

That’s what’s I’m trying to bring to your attention. THE COURT: All right. I’m listening. (Emphasis added.) 4 Appellant then explained that four months earlier, in February 2009, defense counsel had met with Dr. Favor’s private attorney and “spoke to him personally about [appellant’s] case.” After appellant learned of this meeting, he expressed to defense counsel that he was unhappy about that decision and wrote to defense counsel’s supervisor to complain.

The supervisor wrote back to appellant and advised that she was “not going to do anything about it.” The trial judge interjected, inquiring why appellant believed defense counsel’s actions were “improper[,]” noting that it would have been “borderline incompetency” if defense counsel had not spoken to “the witnesses on the other side, especially a victim.” The court added that if Dr. Favor was represented by counsel, defense counsel was not permitted under the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) to speak to him directly without his attorney’s knowledge and consent.3 Appellant explained that it was his understanding that defense counsel could speak to the Assistant State’s Attorney about the case, but not to the victim’s private attorney, adding, “I thought the private counsel was something totally different from dealing with the State.” The trial judge responded that it was “a courtesy thing and, as well as ethical” for an attorney to ask permission to speak to the client of another attorney. The court added that defense counsel was obligated to investigate on behalf of appellant. 3 MARPC 4.2 states, in pertinent part: “in representing a client, an attorney shall not communicate about the subject of the representation with a person who the attorney knows is represented in the matter by another attorney unless the attorney has the consent of the other attorney or is authorized by law or court order to do so.” Md. Rule 19-304.2. 5 Appellant asked to put on the record that his attorney was “biased and he’s prejudice[d] against me.” Specifically, he characterized defense counsel’s manner towards him as “salty.” He explained: They got some tapes over at Towson, and on the tapes I was mentioning that if [Dr. Favor] had passed away – he said if [Dr. Favor] passed away, the case would be over with. And I think he heard it as well as the State heard that. And he’s been salty against me ever[] since.

The colloquy that followed reflects that the trial judge may have misunderstood appellant to be saying that defense counsel made the remark about Dr. Favor dying: THE COURT: If [Dr. Favor] passed – well, that would be a fact. [APPELLANT]: Yeah, it would be a fact. THE COURT: If you didn’t do it, but let’s just say, God forbid, the complaining witness dies and I’ve had that happen, he’s right, the case is over with. Now how does that show bias? That’s just a statement of fact.

Without a witness – [DEFENSE COUNSEL]: Your Honor, may I ask a question? THE COURT: Yes. [DEFENSE COUNSEL]: Who said that if [Dr. Favor] passed away the case would be over? [APPELLANT]: (Inaudible) [DEFENSE COUNSEL]: Who said that? THE COURT: All I need to know, Mr. Hargett, the jury is out there. If I let [defense counsel] out, you go it alone.

But the jury is there. I just need to know what you want to do, sir? (Emphasis added.) 6 After confirming that the preceding discussion had been “on the record,” appellant told the court that he would “rather go to bat with a bat than not a bat at all.” The court replied, “All right. You all come up while the jury comes in.” After a brief unrelated discussion at the bench, counsel returned to their trial tables and the courtroom clerk asked the trial judge, “Ready for roll call, Your Honor?” The court responded, “Yes” and the courtroom clerk welcomed the venire panel to the courtroom.

After the court conducted voir dire of the venire panel, a jury could not be selected from the remaining prospective jurors and the panel was dismissed.4 Hargett I at 5. The next day, the trial court conducted voir dire of a new venire panel, a jury was selected, and trial commenced. We will include additional facts in our discussion of the issues. DISCUSSION a.

Rule 4-215(e) provides: 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 4 At that juncture, appellant addressed the court, stating that defense counsel was not communicating with him or answering his questions. In Hargett I, appellant argued that this exchange amounted to a request to discharge his counsel and that the trial court erred by its handling of the request.

Hargett I at 8. This Court held that appellant’s complaint that defense counsel was not communicating with him was not a request to discharge counsel. Hargett I at 10–13. As mentioned, the earlier request to discharge counsel that is the subject of the instant appeal was not raised in Hargett I because it was not included in the transcript of the June 3, 2009 trial proceedings. 7 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)(1)-(4) of this Rule if the docket or file does not reflect prior compliance. If a request to discharge counsel is timely, the trial court must strictly comply with the mandates of Rule 4-215(e) in responding to it. Pinkney v. State, 427 Md. 77, 87 (2012). “[A] trial court’s departure from the requirements of Rule 4-215 constitutes reversible error.” Id. at 88 (citations omitted).

A request is timely if made before “meaningful trial proceedings” have begun. State v. Brown, 342 Md. 404, 423 (1996). “After meaningful trial proceedings have commenced, the decision to permit the defendant to [substitute counsel or represent him or herself is] committed to the sound discretion of the trial court.” Id. at 426 . In the instant case, as a threshold matter, the parties dispute whether appellant’s request to discharge his counsel was timely, triggering application of Rule 4-215(e).5 Two decisions of the Court of Appeals have assessed whether “meaningful trial proceedings” have commenced in relation to jury selection. We discuss each in turn.

In State v. Hardy, 415 Md. 612, 617 (2010), the defendant requested to discharge his counsel on the first day of trial, after the venire panel was sworn, and the trial judge had made introductory remarks to the prospective jurors and had asked them several 5 There is no dispute that appellant clearly communicated that he sought to discharge his attorney. 8 questions. On these facts, the Court of Appeals held that “meaningful trial proceedings” had commenced before the request to