Howell v. State

Moylan, J., delivered the opinion of the Court. Advertently or inadvertently, a manipulative and obstructionist defendant maneuvered a trial judge into the ⁹⁰ treacherous waters between the Scylla of the Sixth Amendment’s right to counsel and the Charybdis of Rule 746’s 180-day mandate. The State’s Attorney’s Office was ready for trial at all times and did not contribute, even peripherally, to the predicament. The trial judge did not create the predicament.

For reasons to be more fully explained, the predicament was exclusively the product of the defense, team —• the defendant and his then privately retained lawyer. When suddenly faced with an eleventh-hour crisis, the trial judge tried, nobly and patiently, to extricate the defendant, to the extent still possible, from the predicament. He inquired insistently as to what course the defendant wished him to steer, as to which of the two perils was to be avoided at all costs, if both could not be. For his part, the defendant stood blithely and opportunistically indifferent to whether the ship of State smashed upon the rocks of Johnson v. Zerbst, 304 U.S. 458 , 58 S. Ct. 1019 , 82 L. Ed. 2d 1461 (1938), or plunged into the maelstrom of State v. Hicks, 285 Md. 310 , 403 A.2d 356 (1979).

"Which peril would you have me avoid?,” the Captain implored. "I am saying nothing;” the passenger replied, "just make a mistake.” Our undergirding holding is that we simply will not reward such naked obstructionism. The legal reasoning merely elaborates that transcendent judgment. The appellant, Burl Anderson Howell, was convicted by a Cecil County jury, presided over by Judge William B. Evans, of (1) murder in the second degree and (2) conspiracy to murder.

Upon this appeal he raises three contentions: 1. That the trial judge abused his discretion in permitting the appellant’s retained counsel to withdraw his appearance three weeks before the trial was scheduled; 2. That a waiver of a right to the assistance of counsel may not be inferred from the refusal to accept a postponement of the trial even under circumstances where counsel could not be provided unless the trial was postponed; and 3. That since the appellant was compelled to surrender his right to the assistance of counsel in order to assert his speedy trial right, he should be entitled not simply to a ⁹¹ reversal and remand but to the total dismissal of all charges against him.

As we prepare to address the three contentions individually, there is a common denominator observation to be made. There is a point, if an entire system of justice based upon the assumption of free will is to endure, that a criminal defendant, if competent, must be treated as a responsible adult agent and may fairly be required to make at times difficult choices and then to live with such choices. This is a first principle of any sane society. PERMITTING THE WITHDRAWAL OF RETAINED COUNSEL Maryland Rule 725 c 3, provides: "If no other counsel has entered an appearance for the defendant, leave to withdraw may be granted only by order of court.

The court may refuse leave to withdraw appearance if it would unduly delay the trial of the case, would be prejudicial to any of the parties, or otherwise would not be in the interest of justice. If leave is granted and the defendant is not represented, a summons or other writ shall be issued and served on defendant for his appearance before the court for proceedings pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel).” The appellant was indicted on August 21, 1979, for both murder and conspiracy to murder. On August 23, Richard E. Jackson, Esquire, entered his appearance on the appellant’s behalf as privately retained defense counsel. On that day, therefore, the 180-day clock of Rule 746 began to tick.

In the months that followed, preparations moved forward in due and unremarkable course toward a timely, mid-winter date at the trial table. On August 24, the appellant was transferred to the Clifton T. Perkins State Hospital "for emergency treatment,” because the Cecil County Sheriff reported that the appellant ⁹² was "a high suicide risk” and that the Sheriff did not have the facilities to cope with such a risk. In the meantime, appellant’s counsel requested discovery and on August 31, the State filed its answer. On September 19, appellant’s counsel moved to suppress physical evidence.

On September 24, a plea of not guilty by reason of insanity was filed. On the same day, an election of trial by jury was made. On October 8, Clifton T. Perkins was ordered to evaluate the appellant’s sanity. The medical staff forwarded that evaluation to the court on January 7, 1980.

On January 16, appellant’s counsel moved to reduce bond; a hearing was held on that motion the next day. A hearing on the suppression motion was scheduled for February 1, with the trial on the merits set for February 20. On January 30, the suppression hearing was postponed until February 15, at the request of the appellant. To that point, 160 days into the 180-day countdown, no intimation had yet been given to either judge or prosecutor that all was not well within the defense camp.

The alarm first clanged on January 30. In open court on the morning of January 30, Mr. Jackson, the privately retained defense lawyer, announced that "there has been a significant change since our conference in chambers at the end of last week with Mr. Podolak [the Assistant State’s Attorney] and the Court and me.” Mr. Jackson informed the court that, through his conversations with another attorney, he "became aware of a potentially serious ethical problem with my continuing role as Mr. Howell’s attorney.” He pointed out that he would almost certainly be a witness at the suppression hearing and quite possibly at the trial. He pointed to Disciplinary Rule 5-102, 1 ⁹³ mandating his withdrawal as counsel under such circumstances. He pointed out, furthermore, how he, in a bona fide effort to be as ethically correct as possible, had called the "Ethics Hotline number” provided by the Bar Association "to see if I could get a preliminary ruling, some guidance on the issue.” The Bar Association representative who received the call was unable to give a clear-cut answer but indicated that he thought there was a serious problem.

Mr. Jackson was advised to write a letter to the Ethics Committee of the Bar Association, but was told that they would next meet in the middle of February. He told the court that he had filed such an inquiry. ⁹⁴ In the meantime, however, the 180-day time period was continuing to run and Mr. Jackson realized that time was of the essence. He himself studied the disciplinary rule further and concluded that he was almost certainly going to be required to withdraw as counsel. If he waited, the withdrawal would come hours before the deadline, at best, rather than weeks before.

He informed the court that he had contacted the Public Defender’s Office on the appellant’s behalf but was told by them that they would neither involve themselves in the case nor even entertain the application "so long as there is an attorney’s appearance in the case.” In that regard, Mr. Jackson pointed out, with full and commendable candor, that he had run into a secondary problem in terms of the inability of the appellant or his family to raise the full fee. He concluded from this that the appellant was now eligible, in terms of indigency, to be represented by the Public Defender’s Office. It was necessary, however, for his own appearance to be stricken before those other wheels could begin to turn. He informed the court that there was an alternative, which was to postpone the case, quite probably beyond the 180-day limit, to await the arrival of the formal opinion from the Ethics Committee.

Mr. Jackson then pointed out the impediment to this alternative that had just been erected by the appellant himself: "As I told you in chambers on Friday, I was sure Mr. Howell would agree that he would see it was to his best interest to continue and get an attorney involved, either me or somebody else, who could go ahead and give him a vigorous defense. Ten-thirty last night Mr. Howell called me at home from the jail, told me that he had been talking with some other people whom he did not specify, and that he had changed his mind and would not come into court today and waive on the record his right to be tried within the 180 days. He’s, at this point, refusing to follow my advice in that regard, preferring to listen to other people, which is an additional problem. ⁹⁵ But I want to make it clear to the Court that is Mr. Howell’s position. Frankly, Your Honor, 1 think it is going to be difficult, given the factors involved — and the main factor, of course, is the ethics problem — for Mr. Howell to get an adequate defense on or before February 20th.” (Emphasis supplied).

The appellant indicated unequivocally that he thought that "Mr. Jackson’s testimony is crucial” to his defense and that he fully agreed to the court’s allowing Mr. Jackson to strike his appearance as defense counsel. Even so, the court withheld its decision while it explored further the feasibility of getting substitute counsel aboard as soon as possible. The judge pointed out to the appellant that the Public Defender’s Office or some other defense lawyer appointed by the court would be operating under the same time constraints. The appellant was asked whom he would wish, if he had his choice, to represent him.

On several occasions he mentioned the local public defender, Harry Goodrick. The morning conference was recessed to be reconvened that afternoon, so that the Public Defender’s Office could be contacted during the recess in order to expedite the process. By early afternoon, the court put its blessing upon preliminary conversations, on the subject of the appellant’s eligibility, between the appellant and the Public Defender’s Office, notwithstanding the fact that Mr. Jackson was still technically attorney of record. It was determined that the appellant was eligible for representation in terms of his indigency.

Although no commitment was remotely made by the Public Defender’s Office to go to trial by February 20, that Office did accede to the court’s request to bypass the preliminary bureaucratic stages. In a council of war in open court involving the judge, the appellant, Mr. Jackson, the Public Defender’s Office and the State’s Attorney’s Office, it was agreed that summonses for the witnesses for the forthcoming suppression hearing would be issued immediately and that the list of witnesses and the files of Mr. Jackson would be turned over to the public defender. Throughout all of this, however, the judge and everyone else kept warning the appellant, ⁹⁶ repeatedly, that the February 20 deadline would probably be impossible to meet. Only when all of this had been done, did Judge Evans permit Mr. Jackson to strike his appearance.

The final and official colloquy went as follows: "MR. JACKSON: Yes, sir, I do. I wish to say, also, for my own sake, first of all that at this moment,, still counsel of record for the Defendant, I have fully advised the Defendant as to the same things that this Court has advised the Defendant; that he probably could get a continuance and that not getting a continuance will probably be prejudicial to a new counsel defending him. He takes the position he takes, now, notwithstanding my advice and direction, in contravention to my advice as his attorney.

Having said that, I also wish to move at this time that my appearance be stricken on the basis of the problems that are in the record from our discussion this morning. Specifically, the ethics problem. I have discussed this with Mr. Howell in advance. I discussed it last night, again this morning when he came over here and just a few moments ago when he came to Court.

THE COURT: Thank you, and the Court will permit you at this time to, there’s no objection to this, is there? MR. HOWELL: Objection that he strikes himself? THE COURT: Strikes his appearance?

MR. HOWELL: As my attorney? THE COURT: Yes. There’s no objection.

Let that be shown on the record. Your motion to withdraw as attorney in the case is granted as of this date. MR. HOWELL: Your Honor, I have no objection that I have to have him as a witness rather than an attorney. ⁹⁷ THE COURT: Well, that’s another matter.

He will appear as a witness, is one way I’ve asked you, not as a witness, he will no longer have the control and the obligation to represent you in this case. That’s what you’re agreeing to, his withdrawal from this case as your attorney, is that correct? MR. HOWELL: Yes, sir.

THE COURT: All right. Then, as I said before, your appearance will be stricken as attorney as of this time and the Court and the Clerk will so note it on the record.” The correctness of this decision by Judge Evans is the first issue before us on this appeal. This decision was made on the afternoon of January 30, 1980. Its correctness can only be analyzed in the light of circumstances as they stood on the afternoon of January 30, 1980.

We will not, indeed we may not, indulge in hindsight. It was necessary for the trial judge to make his decision then and, quite properly, he did so. We hold that his decision to permit Mr. Jackson to strike his appearance was correct. The ethical considerations virtually compelled such a decision.

In terms of the consequential problem thereby created, Judge Evans cannot be charged with clairvoyant foreknowledge that the appellant would continue in his obstructionism, apparently letting the advice of his "jail-house lawyers” override the strong and contrary advice from Mr. Jackson, from the Public Defender’s Office and from the trial judge himself. It was not unreasonable for Judge Evans to assume that if the Public Defender’s Office concluded that it could not be ready for trial within 20 days, it would prevail upon the appellant to postpone the trial long enough to allow for proper preparation. On this ruling, therefore, we hold that Judge Evans was not in error. As of January 30,1980, moreover, the consequences of this ruling were locked into history as the new and then prevailing reality.

The fact that Mr. Jackson, the privately retained former counsel, was officially and absolutely out of the case, was fait accompli as the next stage of the drama ⁹⁸ began to unfold. As we seek to compartmentalize cleanly the distinct issues before us, that irreversible departure of former counsel became part of the backdrop against which ensuing events will be viewed. THE FAILURE TO ORDER A POSTPONEMENT OVER THE OBJECTION OF THE APPELLANT TO SUCH POSTPONEMENT The appellant would frame this issue in terms of whether the trial judge denied him his constitutional right to the assistance of counsel. Such a framing of the issue would depart too far from reality.

It was not the case that the trial judge denied the appellant the assistance of counsel; it was rather the case that the appellant, by his actions, denied himself the assistance of counsel. Appellate scrutiny of the trial judge, therefore, can be undertaken more accurately in terms of was the trial judge, sua sponte, sufficiently superhuman and sufficiently Solomon-like to protect the appellant from himself and, incidentally, to protect the trial process from the appellant’s deliberate effort to sabotage it. Judge Evans recognized full well what the appellant wanted. He observed at one point, "[H]e wants to have the best part of two worlds.” He pointed out to the appellant the nature of the dilemma that the appellant was posing for the court: "But you don’t want to continue with him, but you don’t want to extend the time.

You’re trying to, it seems to me, somebody’s telling you that this is a mandatory rule and you’re going to get everything dropped from you because of this mix-up and the problem with your attorney.” Judge Evans labored patiently to explain to the appellant the problem that a newly appointed attorney would have in getting adequately prepared for a serious murder case: "How would you expect counsel to adequately prepare a case for you for trial, just bringing him in ⁹⁹ here at the last minute? He’s got to interview witnesses. One of the witnesses, apparently, from what I’ve heard today, one of the chief witnesses on your behalf, as far as the suppression hearing is concerned, is Mr. Jackson.” The appellant persisted that since Mr. Jackson (his previously privately retained counsel) would be willing to turn over his paperwork to the successor attorney, that new attorney would not need much preparation time. The court pointed out other considerations: "Well, you’ve got to find out, if I were to appoint an attorney, what this attorney’s schedules are, what his trial schedules are.

I mean, he’s just, you want me to appoint an attorney that doesn’t have any clients, and the reason he doesn’t have any clients, if there are such attorneys around here, is because he’s not too competent, or just new, or green. ... So how do you expect this Court, and how would you expect any attorney to adequately represent you if he doesn’t have time to prepare the case? A lawyer can’t come in here and just devote his entire time to this case because I appoint him. And he may have other things planned, he may want to be going on a vacation, and he may refuse the appointment.

He doesn’t have to take it. I mean, I don’t know what information you’re getting. Maybe you think it’s some way — and I don’t really mean to accuse you of this — but it seems to me that the logical thing for your protection in the long run would be that you would get another attorney, that the attorney would have some opportunity to discuss the matter with you, go over the matter with you, review the case with Mr. Jackson, and try to prepare and defend you to the best of his ability. But if, and I don’t — I think we can grant a postponement on this case beyond the time required because there’s a significant reason for doing so, to ¹⁰⁰ protect your rights.

You can’t get an attorney in here in the next twenty days and prepare to defend you on a charge of murder. I certainly wouldn’t want my attorney to spend a little more than what time he’ll have in twenty days to come in on a case to represent me on a serious charge like this. If you think there’s somebody up in the jail’s been indicating to you that maybe you can whip outta this clear as a bell.” It is certainly not the case that the appellant was not informed of the difficult decision that was rapidly approaching. Judge Evans explained again and again that two constitutional protections were on a collision course.

The appellant’s apparent preference was for his right to a speedy trial: "THE COURT: Well, I’ve gotta face certain things to see if your rights are protected at this time. And one of your rights, of course, is to have a speedy trial. Another right is to have the services of a competent attorney. And we’re running into a problem here because you don’t want to extend the time and you want to get an attorney to try to be prepared in the case, regardless of the suppression hearing, for trial, as I understand.

This case is twenty-one days, three weeks away. Now, we have two Constitutional rights that are running head-on into each other here. One, to have the adequate right of an attorney to represent you at all stages of the proceeding and, two, that you’re to have a speedy trial. And it’s just an unusual set of circumstances that we’re involved in that made these come together like a couple of rams fighting up on a mountain bank, they’re banging their heads together-.

MR. HOWELL: Your Honor, I have been in jail close to six months, and I think it’s far time that this case, you know — ¹⁰¹ THE COURT: We’re trying. MR. HOWELL: — were tried.” It was just after this colloquy that the appellant expressed his preference for Public Defender Harry Goodrick.

The efforts, which we have already described in great detail, were then made to determine the appellant’s eligibility for representation by the Public Defender’s Office, to turn over the files of Mr. Jackson to the Public Defender, and to get the Public Defender into the case. Judge Evans went further. Over the luncheon break on January 30, he conferred with Judge H. Kenneth Mackey, the Administrative Judge for the County, and had himself, Judge Evans, designated by Judge Mackey as eligible to grant a postponement should one be requested. All of this was done with scrupulous attention to the niceties of Maryland Rule 746.

Judge Evans gave the appellant fair warning that the Public Defender’s Office might not be ready to go by the appointed trial date of February 20, and that, in such a case, the appellant himself was going to have to make the difficult choice: "This matter’s raised some rather serious questions, what we’re gonna do, and I have a responsibility to see that your Constitutional rights are protected as to a speedy trial, but also the other right that you’re entitled to counsel, and competent counsel, at all stages of the proceedings. Right now, we’re in a conflict on this and it may well be that regardless of, well, I don’t know what we’ll do. You want to go ahead with the trial on the 20th, and it would be rather difficult for me to think that your case could be processed through the Public Defender’s Office and an attorney appointed for you and could go that fast. So, it’s really gonna be where you’re gonna have to make the selection.” (Emphasis supplied).

When the court reconvened on the afternoon of January 30, Judge Evans proceeded to give the appellant a short course on the mandatory nature of Rule 746, as interpreted ¹⁰² by State v. Hicks. That discussion serves to state the issue now before us in proper terms. What we are coming to grips with is not the question of whether the appellant knowingly and voluntarily waived his right to assistance of counsel, but whether the appellant took any necessary step, required of him, to avoid the 180-day mandate of Rule 746. The court made it very clear that the State was not seeking a postponement.

The court made it very clear that it was not for the judge to declare a postponement sua sponte. The court made it very clear, moreover, that it would rule in the appellant’s favor that he did indeed have "extraordinary cause” for a postponement should he seek one. The court also made it very clear that the burden was upon the appellant so to seek: "[Y]ou are saying that you want to be tried within the 180 days as provided by Rule 746. And I would read to you from an opinion of the case that went down to the Court of Appeals, which was the State of Maryland against Harvey Robert Hicks, which is Number 130, September Term, 1979 Court of Appeals of Maryland and from the Court’s opinion in that case, on page eight, I would read to you for your benefit and information, 'That not only are the provisions of Rule 746 mandatory in application, but they are also binding upon the prosecutor and the defense alike.

They are not mere guidelines or bench marks to be observed if convenient. ’ That’s what our Court of Appeals has said, so, the State in this case is not asking for any continuance of this case from the time it was scheduled for trial on the 20th day of February, 1980. I would indicate that you would probably have sufficient cause, extraordinary reason to ask for a continuance of this case beyond the scheduled trial date of February the 20th because of the situation of your attorney and because of the need for you to get new counsel because your attorney, as I understand, is shortly, today, going to strike his ¹⁰³ appearance in this case and will not represent you further in this matter.” (Emphasis supplied). In a Herculean effort to put the mandatory 180-day question as clearly as possible and to obtain an answer as clear as possible, Judge Evans labored on: "I’m giving you the chance, now. I’m going to tell you what I’m going to do unless you ask me for a postponement.

You’re going to get a continuance or a postponement of the show cause hearing until 1:30 p.m.