Harris v. State

WILNER, Chief Judge. The issue before us is whether the Circuit Court for Frederick County erred in directing that the Office of the Public Defender serve as “standby counsel” for a defendant who is eligible for representation by the Public Defender, whom the Public Defender is willing to represent, but who has effectively waived his right to the assistance of counsel in accordance with Md.Rule 4-215. We shall hold that the court did not err. UNDERLYING FACTS On August 5, 1994, in a 10-count indictment, Bruce Koenig was charged with two counts of murder, several handgun ⁴⁰³ violations, armed robbery, and theft.

The indictment stems from an allegation that, on June 20, 1994, Koenig robbed and murdered his parents. The District Public Defender, Franklin Stillrich, and his assistant, John Chillas, entered their appearances on August 10 by filing pleas on behalf of Koenig of not guilty, not criminally responsible, and not competent to stand trial. By reason of the latter two pleas, the court ordered that Koenig be examined by the Department of Health and Mental Hygiene. Pending that examination, Mr. Stillrich filed a number of motions and sought and received substantial discovery from the State. 1 On December 9,1994, the State filed a notice of its intention to seek the death penalty, or, in the alternative, life imprisonment without parole.

On February 13, 1995, as a result of those notices, Mr. Stillrich and Mr. Chillas struck their appearances and entered instead the appearance of Thomas Saunders, of the Public Defender’s Capital Defense Division. Two days later, the additional appearance of Wendy Zerwitz— apparently a panel attorney selected by the Public Defender— was entered as co-counsel with Mr. Saunders. On June 30, 1995, Koenig filed a pro se motion to dismiss Mr. Saunders and Ms. Zerwitz and to appoint new counsel for him. He alleged in his motion that his current attorneys had failed in several respects to conduct discovery and properly investigate the case.

At a hearing on the motion held on July 12 before Judge Dwyer, Koenig stated that he and Mr. Saunders had “some fundamental differences on how the case should be handled” and that he wanted to be “actively involved in the case,” including the right to question and interview witnesses. He told the court that “[w]e’ve just gotten to a point where we are not able to be in agreement on anything on the case. The trust, confidence I think on both parts, has broken down and I cannot work with him.” In response to the ⁴⁰⁴ court’s questions, he identified a number of witnesses that had not been interviewed and certain records that had not been examined. Mr. Saunders responded that he and Ms. Zerwitz had met with Koenig 13 times, that they had reviewed with him all relevant documents and given him copies of most of them, and that they had made an adequate investigation.

The court accepted that response and found as a fact that there was “no meritorious reason whatsoever for you to discharge these attorneys.” The court then warned Koenig that if he proceeded to discharge the attorneys, he would either have to hire an attorney, which Koenig had said he could not afford to do, or proceed on his own. Koenig responded that he wished to proceed on his own, perhaps attempt to obtain private counsel. The court thereupon warned Koenig again that, if the court allowed him to dismiss Mr. Saunders and Ms. Zerwitz, he would be required to proceed without an attorney, noting that a suppression hearing was scheduled in August and trial was set for September. Koenig asked for a few days to consider the matter.

When the hearing resumed on July 17, Koenig asked the court to allow a “hybrid defense.” Noting that such a defense was not available in Maryland, Mr. Saunders suggested that what Koenig really wanted was a “standby counsel,” i.e., “someone who would sit with him, provide him legal advice and he would drive the case, that is determine what [is] to be done.” Koenig added that he needed “to understand the technical points, to know when objections are appropriate and when they’re not, what is admissible and what should not be admitted” but that he wanted to have a more active role in his case “in determining how we’re going to proceed, who’s going to be called as witnesses, what the nature of the defense is going to be.” After further discussion regarding the role of counsel, Koenig asked “to proceed with what’s been referred to as standby counsel, so I can have a much more active part in the conduct of the trial.” Specifically, he wanted to be able to address the ⁴⁰⁵ jury and question witnesses. Standby counsel would also be able to question witnesses and would be there “to instruct and advise and assist me on the legal technicalities, the points of law that I am not aware of at this point.” Mr. Saunders noted that standby counsel had been provided by the Public Defender in other cases, mentioning in particular that of Anthony Grandison (sec Grandison v. State, 305 Md. 685 , 506 A.2d 580 , cert. denied, Grandison v. Maryland, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986), and Grandison v. State, 341 Md. 31 , 668 A.2d 889 ). The State asked the court to grant Koenig’s request. The court thereupon conducted a waiver inquiry pursuant to Md.Rule 4-215.

That inquiry revealed that Koenig had been hospitalized for mental problems in 1983, 1985, and 1986, for about a month each time, in a Veteran’s Administration hospital in Texas. One diagnosis was manic depression, for which he had taken lithium. He was under psychiatric care as well in 1989 during an incarceration in Texas. Koenig said that he stopped taking the lithium in 1993.

The court, for at least the third time, warned Koenig that, if Mr. Saunders and Ms. Zerwitz were discharged, he may not ultimately get standby counsel and that, if he did, counsel would be assigned by the Public Defender’s Office, that standby counsel may have no funds for investigative work and that even the Public Defender, if chosen as standby counsel, would not be doing investigative work. At the end of the questioning and discussion, Koenig again asked that counsel be discharged and that standby counsel be appointed. The court was presumably aware from the State’s response to discovery that the State intended to call about 70 witnesses at trial. It found that Koenig’s motion was freely and voluntarily made and, both orally from the bench and in an order filed July 28, 1995, struck the appearances of Mr. Saunders and Ms. Zerwitz, found that Koenig had knowingly and intentionally waived his right to counsel, but directed the Office of the Public Defender “to provide standby counsel at the trial of this matter.” ⁴⁰⁶ On August 16, the Office of the Public Defender appealed the order directing it to provide standby counsel, eventually naming Judge Dwyer as the appellee.

We granted Koenig’s motion to intervene in the appeal. DISCUSSION The Issues The five-page brief filed by the Public Defender on the merits makes essentially two assertions: that a court has no authority to require the Public Defender to provide representation and that there is no right, in any event, to hybrid representation. For the first proposition, it cites Thompson v. State, 284 Md. 113 , 394 A.2d 1190 (1978); Baldwin v. State, 51 Md.App. 538 , 444 A.2d 1058 (1982); and State v. Miller, 337 Md. 71 , 651 A.2d 845 (1995); for the second, it cites Parren v. State, 309 Md. 260 , 523 A.2d 597 (1987). The State has moved to dismiss the appeal on a number of procedural grounds.

On the merits, it seeks to narrow the issue. It points out that Koenig is indigent and is therefore eligible for representation by the Public Defender, that the Public Defender indeed entered an appearance for Koenig and is willing to represent him in the traditional manner as counsel, and that the court has general inherent authority to appoint standby counsel. The only question it sees raised in the appeal is whether there is anything in Md.Code, art. 27A—the statute creating the public defender system and setting forth the powers and duties of the Public Defender— that precludes the court from appointing the Public Defender as standby counsel. Motion To Dismiss The State conceded, for purposes of its motion to dismiss, that the Office of the Public Defender, listed as the appellant, has standing to pursue the appeal, even though it was technically not a party to the underlying case in the circuit court.

We agree. The order appealed from directed specific action on appellant’s part that presumably will have a ⁴⁰⁷ fiscal and operational impact on the Office. The State also concedes that the pursuit of this appeal does not amount to an impermissible conflict of interest between the Office and Koenig. We agree with that as well.

The appearances of the public defenders have been stricken, and there is, therefore, at this point, no clear attorney-client relationship from which a conflict could arise. The issue is whether the court is empowered to create a lesser form of such a relationship. The State’s motion seems to be based on the fact that, (1) after the appeal was noted, Koenig moved to substitute a private attorney as standby counsel, and (2) the case in circuit court is not over, and no final judgment has been entered. The first point is now moot.

We are told that Koenig has withdrawn his motion for private counsel. Thus, the order requiring the Office of the Public Defender to act as standby counsel is still in effect. With respect to the finality argument, this seems to us to be a proper case for application of the collateral order doctrine, allowing an immediate appeal. Under the collateral order doctrine, an order not constituting a final judgment may be immediately appealed if it conclusively determines the disputed question, resolves an important issue, is completely separate from the merits of the action, and is effectively unreviewable on appeal from the final judgment.

Huff v. State, 325 Md. 55 , 599 A.2d 428 (1991); Gillis v. State, 333 M0. 69, 633 A.2d 888 (1993), cert. denied, Gillis v. Maryland, — U.S. -, 114 S.Ct. 1558 , 128 L.Ed.2d 205 (1994). The order directing the Office of the Public Defender to provide standby counsel satisfies each of those conditions. The order conclusively determined the duty of the Office. The issue of whether a court can require the Office to provide standby counsel in cases where the defendant has waived counsel has significant jurisprudential, fiscal, and public policy implications and is therefore an important issue.

That issue is completely separate from the underlying case—whether Koenig is guilty or not guilty of the charges against him. ⁴⁰⁸ In contrast to the view of the Third Circuit Court of Appeals in U.S. v. Bertoli, 994 F.2d 1002 (3d Cir.1993), we believe that the order is effectively unreviewable on appeal from a final judgment. If Koenig is acquitted, of course, there will be no appeal; even if he is convicted, unless he chooses to appeal and to raise the issue himself, it likely cannot be raised. At that stage, there could well be a significant conflict of interest if the appellate division of the Public Defender’s Office attempts to raise the issue in the face of Koenig’s request for standby counsel, and, if raised only by the public defender, the issue might well be moot. The Bertoli Court held that the ability of a lawyer directed to serve as standby counsel to appeal from a finding of contempt in the event he refused to comply with the order sufficed to make the order otherwise reviewable.

We do not agree. For one thing, the order before us was directed to the Office of Public Defender, not an individual lawyer, and it is not clear how the Office itself could be punished for contempt. Even if the sanction ran against the Public Defender personally or against one of his assistants, we do not believe that a lawyer—an officer of the court who may also face disciplinary proceedings if he or she deliberately violates a specific order of a court—ought to have to run the risk of a contempt finding before being able to challenge an order of this kind that the lawyer believes to be unlawful. Finally, the order is in the nature of a mandatory injunction, directing specific conduct, and, to that extent, would be appealable under Md.Code Cts. & Jud.Proc. art., § 12-303.

For these reasons, we deny the motion to dismiss. The Merits The Sixth Amendment to the United States Constitution and art. 21 of the Maryland Declaration of Rights guarantee to a person accused of a crime the effective assistance of counsel. In Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975), the Supreme Court recognized an independent right implicit in the Sixth Amendment to ⁴⁰⁹ self-representation, i.e., the right of a defendant to represent himself, in proper person, without counsel. To exercise that right, however, a defendant must knowingly and voluntarily waive his alternative, and favored, right to counsel.

In Maryland, that must be done in accordance with the procedures and requirements in Md.Rule 4-215. In recognizing the Constitutional right of self-representation, the Faretta Court noted the risk that pro se defendants may become disruptive in court and declared that a trial judge “may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.” 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46. That, of course, would immediately create the dramatic anomaly of a defendant having no attorney, because he waived his right to counsel, and yet not able to represent himself. Perhaps with that possibility in mind, the Court observed, “Of course, a State may—even over objection by the accused—appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” Id.

In making that statement, the Court cited with apparent approval United States v. Dougherty, 473 F.2d 1113 (D.C.Cir.1972), where the D.C. Circuit Court found what it termed “amicus” counsel permissible and helpful to a defendant exercising his right of self-representation. The Dougherty Court stated, at 1125, that “[i]f defendant refrains from intentionally obstructive tactics, amicus would be available to provide advice on procedure and strategy.” The Supreme Court revisited the device of standby counsel in McKaskle v. Wiggins, 465 U.S. 168 , 104 S.Ct. 944 , 79 L.Ed.2d 122 (1984). It began by confirming that, in Faretta , the Court had held that “a trial court may appoint ‘standby counsel’ to assist the pro se defendant in his defense.” Id. at 170, 104 S.Ct. at 947 . The issue in McKaskle was the permissible role that standby counsel, appointed over the defendant’s objection, could play consistent with the defendant’s right of self-representation.

Mr. Wiggins, charged with robbery, blew hot and cold with respect to whether he wanted the assistance ⁴¹⁰ of counsel. He accepted the appointment of two attorneys but insisted on defending himself pro se. His ultimate complaint, in a Federal habeas corpus proceeding, was that the attorneys were overzealous and interfered too much, thereby compromising his right of self-representation. The Fifth Circuit Court of Appeals, agreeing with Wiggins, held that standby counsel was “to be seen, but not heard,” and that they were “there for advisory purposes only, to be used or not used as the defendant sees fit.” Wiggins v. Estelle, 681 F.2d 266, 273 (5th Cir.1982).

The Supreme Court rejected that approach. It declared that “both Faretta’s logic and its citation of the Dougherty case indicate that no absolute bar on standby counsel’s unsolicited participation is appropriate or was intended. The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused’s best possible defense. Both of these objectives can be achieved without categorically silencing standby counsel.” 465 U.S. at 176-77 , 104 S.Ct. at 950 .

That said, the Court held that the Faretta right of self-representation did impose at least two limits on standby counsel. First, the pro se defendant is entitled to preserve actual control over the case; if counsel’s participation, over the defendant’s objection, effectively allows the attorney “to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant,” the Faretta right would be eroded. Id. at 178, 104 S.Ct. at 951 . Second, counsel’s participation without the defendant’s consent should not be allowed “to destroy the jury’s perception that the defendant is representing himself.” Id.

In the Wiggins case, the attorneys made motions, dictated proposed strategy into the record, registered objections, and suggested questions for Wiggins to ask. They were, in no sense, the “potted plants” of more recent allusion. In that regard, the Court noted, at 183, 104 S.Ct. at 953-54 , that ⁴¹¹ “Faretta does not require a trial judge to permit ‘hybrid’ representation of the type Wiggins was actually allowed,” but it then added: “[I]f a defendant is given the opportunity and elects to have counsel appear before the court or jury, his complaints concerning counsel’s subsequent unsolicited participation lose much uf their force. A defendant does not have a constitutional right to choreograph special appearances by counsel.

Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.” The discussions with respect to standby counsel in Faretta and McKaskle are in the context of the defendant’s right to self-representation. They examine whether, and to what extent, such counsel, if appointed, may interfere with the exercise of that right. We do not read either case as deciding that a State court is obliged to appoint such counsel or that it even has the power under State law to do so. The Maryland Court of Appeals dealt with some aspects of the matter in Parren v. State, supra, 309 Md. 260 , 523 A.2d 597 , although it did not address the particular issues before us in this case.

The principal question in Parren was whether a defendant had the right to “hybrid” representation, and the Court held that he did not. Although the Court cited Faretta and McKaskle for other purposes, it did not mention the term, or the concept of,