Holt v. State

Kenney, J. When two groups 1 engaged one another in anticipation of a fight, shots were fired, but no one was struck. A jury in the Circuit Court for Allegany County convicted appellant Marquise Holt of two attempted first-degree murders, a first-degree assault, conspiracy, and related crimes for his role in the incident. Appellant presents two questions for our review: 1. Did the trial court comply with the requirements of Maryland Rule 4-215(e) ? 2.

Did the trial court err in refusing to instruct the jury on imperfect self-defense? We answer "yes" to the first question and "no" to the second, and affirm the judgment of the circuit court. FACTUAL BACKGROUND The engagement took place on the evening of March 30, 2016 at the Fort Cumberland Homes ("Homes") in Cumberland, Maryland. Earlier that afternoon, appellant and Nickoli Cakus, 2 while driving near the Homes, encountered Malachi Thornton and Shawn Hamlette.

Cakus had had "a problem with [Hamlette] for over a year," and they had physically fought the previous summer. Appellant and Cakus, now joined by appellant's cousin Marcus Brown and another man, exited their cars and approached Malachi and Hamlette. When Hamlette pulled out a gun and pointed it at him, Cakus punched Hamlette. According to Cakus, Malachi was "loud and aggressive," and he had asked Hamlette for his gun.

After appellant and Malachi engaged in a fight, Cakus saw Malachi on the ground holding his face. When Malachi and Hamlette retreated, appellant and Cakus went to a friend's house to socialize. While they were there, appellant told Cakus that someone had been yelling at their girlfriends, both of whom were visiting an apartment in the Homes. He also told Cakus that Mikey Thornton wanted to fight, and commented that he (appellant) had "never been a hard person to find." Aireana Washington testified that she had been in an apartment at the Homes with Alexis Fischer (appellant's girlfriend), Janay Bristol (Cakus's girlfriend), and Janya Bristol (Janay's sister).

While they were there, they heard rumors that there was going to be a fight. A message sent from Washington's Facebook account to Cakus's read, "Mikey said that you and Buck 3 are going to get in. Bruh, where you at because they ain't touching my best friend." 4 This information left Cakus with the impression that "there was supposed to be a fight" and that Mikey was looking for him and appellant. Appellant and Cakus drove to Brown's house, where two other men, Kesler and Rideout, joined them.

According to Cakus, Kesler had a "tiny revolver" with him. Having decided to go to the Homes after it was dark, they left together in Rideout's vehicle around 8:00 p.m. Despite having seen Kesler with a revolver, Cakus thought the ensuing fight would be weapon-free. Appellant and Brown did not appear to him to be armed when they left Brown's house, but after they arrived at the Homes, Cakus noticed that they both were holding their waists as if they were carrying weapons.

Upon arriving at the Homes and meeting briefly with Fischer, Washington, and the Bristols, the Holt group advanced within the housing complex grounds with appellant and Brown in front, and Cakus, Kesler, and Rideout behind them. As they proceeded, the Thornton group of about six people, including Malachi, Mikey, and Zaira Stubbs, jumped over a fence and ran towards them. Cakus did not know the others. What followed happened within a span of seconds, and witnesses provided conflicting accounts of what occurred.

According to Cakus, members of the Thornton group were armed with, at least, a knife and a baseball bat. 5 And, almost immediately and without any words being exchanged, appellant and Brown pointed handguns at the other group. Cakus saw Brown fire several shots, but he did not see appellant fire any shots. Two other witnesses testified that at least one person in the Holt group fired on the Thornton group. They disagreed on whether appellant had a gun or was a shooter.

Zaira Stubbs's mother, Tremaina Bullett, testified that she was standing outside on the telephone when she saw Malachi, Mikey, and Stubbs come out of the backdoor to an apartment, hop a fence, and run towards the Holt group; only one of the men in the Holt group had his face covered. She denied that any members of the Thornton group were armed with weapons. When the Thornton group was within four feet of the Holt group, appellant and Brown pointed guns at the Thornton group and both fired several shots. After the shots were fired, everyone scattered.

There were inconsistencies between Bullett's testimony and her prior statements to police regarding whom she saw during the engagement and who fired gunshots. For example, in her prior statements to police and prosecutors, she did not say that appellant pointed or fired a gun. She explained that any inconsistency was because "everything happened so fast," and that she was worried about her daughter. Zaira Stubbs testified that the Holt group came "out of nowhere" and "just stood there." Only one person in the Holt group had a gun, and it was pointed at her; she heard only one shot.

Because the shooter was wearing black and had something covering his face, she did not recognize the person who fired that shot. She did not recall anyone in her group having a baseball bat. Other witnesses heard shots fired, but did not see who fired them. The police investigation led to the arrest of Cakus on the following morning.

PROCEDURAL BACKGROUND Appellant was indicted on April 21, 2016, and his jury trial was scheduled to begin on July 27, 2016. On July 14, 2016, appellant's private counsel filed a motion to withdraw his appearance. Appended to the motion was a hand-written, signed note from the appellant that read: I have decided that I no longer wish you to represent me and I am going to have to discharge you. Thank you for all you have done.

And please withdraw your appearance at once [/S/ Marquise Holt] At a status hearing on Friday, July 22, 2016 ("the July 22nd hearing"), the motion to withdraw was first discussed without either appellant or his counsel present. On that occasion, a representative of the Public Defender's Office, in addition to advising the court that it would be a problem for a public defender to represent appellant because of conflicts arising from the representation of five other co-defendants in the case and the lack of panel attorneys, stated: Your Honor, I could make a proffer as to what [ ] Mr. Holt's testimony would be concerning [counsel] and the [ ] financial arrangements, and how he came to sign that letter indicating his desire to discharge him. [Counsel] got into this case originally quoting a fee of [ ] 5 thousand dollars. [O]f that fee, approximately [ ] 3,280 dollars ... has been paid. This matter was always going to trial. No question about it, Mr. Holt was from Day 1, was going to trial in this matter.

Recently, [counsel] has said, since it's going to trial, my fee is going to be 10 thousand dollars rather than 5 thousand dollars. [Counsel's] performance in this matter has been despicable. He indicated to Mr. Holt that if he didn't receive his 10 thousand dollar fee, then maybe he couldn't put so much time in this matter, and maybe he wouldn't do a very good job at trial. Then the letter issued that Mr. Holt wanted to fire [counsel]. [T]his is a common practice with [counsel]. He gets a client in his office.

He quotes a fee. He collects some money. He spends all of trial preparation time trying to squeeze more money out of the Defendant, and when it comes close to trial time he moves to strike his appearance. I believe actually it's very likely unethical. * * * [Counsel] went to Mr. Holt and said eh, I want 10 thousand dollars now more, rather than 5 thousand dollars.

If I don't get that money, then maybe I won't do a very good job. The circuit court concluded that it was not "in a situation to answer this question today, in the absence of [counsel] and the absence of Mr. Holt," and stated that it would "address that motion in connection with the status [hearing] on Tuesday [July 26, 2016], because [counsel] has to be here." At the status hearing on Tuesday, July 26, 2016 ("the July 26th hearing"), counsel was present, but it appears that the representative of the Public Defender's Office was not. 6 Counsel stated, "It is my understanding ... that some things were said that were inaccurate before this Court last week by the Public Defender's Office." In response to that "proffer," counsel contended that his fee arrangement was known to appellant, and that he had sent to appellant's designee a "standard A.B.A. approved fee agreement based upon a retainer which has not fully been paid." He had, however, always been prepared to provide full representation to appellant in the case, and moreover, he was still representing appellant: I have talked to my client this morning about this matter. I have advised him that I am still ready, willing, and able to represent him because the matter's coming up, and he should not be placed in any posture where he would have to represent himself. He has advised to withdraw my application to withdraw from the case, and he would like me to represent him, and I plan on representing him tomorrow morning.

The court responded, "We'll be ready to go tomorrow morning." The case proceeded to trial on July 27, 2016 with counsel representing appellant. We shall include additional details in our discussion. DISCUSSION I. Maryland Rule 4-215(e) Appellant contends that the trial court erred under Maryland Rule 4-215(e) by not addressing appellant's written request to discharge counsel. The State responds that because appellant, through counsel, expressly withdrew his request to discharge counsel, a Rule 4-215(e) inquiry was not required.

In appellant's view, however, the ambiguity created by the dueling statements offered by counsel and the representative of the Public Defender's Office, both of whom are officers of the court, required an inquiry of the appellant himself. The Sixth Amendment right to assistance of counsel carries with it the defendant's freedom to release or discharge counsel because "[a]n unwanted counsel 'represents' the defendant only through a tenuous and unacceptable legal fiction." Snead v. State , 286 Md. 122 , 128, 406 A.2d 98 (1979). Maryland Rule 4-215(e) governs the procedure when a defendant expresses a desire to discharge his or her counsel: 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 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. (Emphasis added). The Rule "provides an orderly procedure to insure that each criminal defendant appearing before the court be represented by counsel, or, if he is not, that he be advised of the Sixth Amendment constitutional right to the assistance of counsel, as well as his correlative constitutional right to self-representation." Broadwater v. State , 401 Md. 175 , 180-81, 931 A.2d 1098 (2007) (internal citation omitted).

"[S]trict compliance" is mandated, and "a trial court's departure from [the rule] constitutes reversible error." Pinkney v. State , 427 Md. 77 , 87-88, 46 A.3d 413 (2012). Rule 4-215(e) is invoked by "[a]ny statement that would reasonably apprise a court of defendant's wish to discharge counsel ... regardless of whether it came from the defendant or from defense counsel." State v. Davis , 415 Md. 22 , 32, 997 A.2d 780 (2010) ; see also State v. Weddington , 457 Md. 589 , 601, 179 A.3d 1028 , 2018 WL 991687 , at ⁵ (2018) ("This Court has espoused a broad interpretation of what constitutes a request to discharge counsel."). It "need not be made in writing or even formally worded." Davis , 415 Md. at 31 , 997 A.2d 780 (holding inquiry triggered where counsel proffered to the court that defendant in prior conversation indicated that he "[w]anted a jury trial and new counsel"). And, even a statement using the past tense or expressed in a prior-written letter indicating an intent to discharge counsel may be enough to require an inquiry.

See id. ; Williams v. State , 435 Md. 474 , 491, 79 A.3d 931 (2013) (holding that defendant's letter to trial court, written in the present tense, was sufficient to trigger inquiry). But, a Rule 4-215(e) inquiry is not mandated unless counsel or defendant indicates that the defendant has the " present intent to seek a different legal advisor." Davis , 415 Md. at 33 , 997 A.2d 780 (emphasis added). The State does not dispute that appellant's hand-written letter attached to the motion to withdraw counsel's appearance expressed a then-present desire to discharge counsel. Like the defendant's letter in Williams , appellant's letter "clearly, solely, and unequivocally" stated a desire to discharge counsel. 7 435 Md. at 488 -89 , 79 A.3d 931 .

Rule 4-215(e) was triggered, as the trial court correctly recognized at the July 22nd hearing: "[T]here's a procedure ... under the rules as to what the Court's supposed to do ... and it requires ... the Court to make certain inquiries .... I don't believe that we are in a situation to answer this question today, in the absence of [counsel] and the absence of Mr. Holt." In short, the matter remained pending at the close of the July 22nd hearing. On July 26th, counsel, in addition to rebutting the earlier assertions, stated to the court, "I have talked to my client this morning about this matter .... He has advised to withdraw my application to withdraw from the case, and he would like me to represent him, and I plan on representing him tomorrow." Counsel's July 26th statement to the court indicated that appellant no longer desired or intended to discharge him.

This case is, in our view, more like Davis and Garner v. State , 414 Md. 372 , 995 A.2d 694 (2010), than Williams because, between the July 22nd and the July 26th hearings, the court was advised by counsel that appellant had changed his mind. In Williams , the defendant's letter was the last word regarding the discharge of counsel prior to trial. The Court of Appeals reasoned that it would be "illogical to hold that a court may allow a defendant's expression of a present intent to discharge counsel (sufficient to trigger Rule 4-215(e) ) to moulder into a past desire (not sufficient to trigger the Rule) by neglecting, overlooking, or otherwise failing to address promptly the defendant's clear request." 435 Md. at 491 , 79 A.3d 931 . The Williams Court noted that "even if we were to accept the argument that William's aged request reflected a past desire," the trial court must "determine, at some point prior to trial, whether Williams continued to harbor an intent to discharge counsel." Id.

The unaddressed intent to discharge counsel in Williams "aged," but it did not die; here, it did. In Garner , on the day of the trial, Garner's private counsel informed the court that his client "doesn't think that I have his best interests at heart with regard to this case." 414 Md. at 377 , 995 A.2d 694 . Garner, who was present, told the court that counsel was "trying to ... make me take a plea that I don't want to take." Id. The court responded, "I'm not going to make you take a plea," but also "I'm not going to postpone this case." Id.

After a colloquy between the judge and him, 8 Garner stated that counsel could "sit there." Id. at 377-78 , 995 A.2d 694 . And, shortly afterwards, when the jury panel had entered the courtroom, counsel addressed the court, "I'm still in the case and on Mr. Garner's behalf, I want to make a motion." Id. This Court noted that counsel "professionally and ably conducted the complete defense of th[e] case from start to finish." Id. at 380 , 995 A.2d 694 . In Davis , defense counsel, on the morning of the trial, advised the administrative judge that Davis wanted new counsel and a jury trial. 415 Md. at 25 , 997 A.2d 780 .

The administrative judge addressed the jury trial request but not Davis's desire for new counsel. Id. at 26-28 , 997 A.2d 780 . The Court of Appeals held that counsel's statement regarding his client's desire for new counsel was sufficient to trigger a Rule 4-215(e) inquiry, noting that the "defense attorney never told the court that Davis had changed his mind." Id. at 29, 35 , 997 A.2d 780 . But here, as in Garner , the "last word" to the trial court indicated that any desire of appellant to discharge counsel had passed.

As the Garner Court