Joseph v. State

JAMES A. KENNEY, III, Judge (Retired, Specially Assigned). Appellant, Larry Livingston Joseph, was convicted of two counts of first-degree murder and two counts of using a handgun in the commission of a felony or crime of violence by a jury sitting in the Circuit Court for Baltimore City. 1 The ²⁷⁹ court sentenced appellant to two life terms on the first-degree murder charges and two twenty-year terms on the handgun charges; all sentences were to run consecutively. On appeal, appellant presents two questions for our review, which we have slightly reworded: 2 3. Did the circuit court violate Maryland Rule 4-215(e)? 2.

Did the judge deprive appellant of a fair trial by frequently interjecting himself into the proceedings? Because we hold that the circuit court violated Rule 4-215(e), we shall reverse appellant’s convictions and remand to the circuit court for proceedings consistent with this opinion. It is therefore unnecessary for us to address appellant’s second question, but we believe some comment is appropriate. 3 BACKGROUND On September 36, 2007, at approximately 4:30 p.m., Baltimore City police officers and other emergency personnel were dispatched to the 3400 block of Belair Road in response to a report that two men had been wounded by gunfire. At that ²⁸⁰ location, police discovered Deon Morris and Channing Myrick lying on the ground.

Both men had been shot several times. The police also found fifteen spent .40 caliber “shell casings,” ostensibly fired from the same gun. Both victims were transported to Johns Hopkins Hospital, where they later died. Autopsies determined that Myrick had been shot five times and that Morris had been shot nine times.

Appellant was ultimately arrested for their murders. At trial, the State presented evidence from a number of witnesses whose testimony, because of the questions presented, is, for the most part, not relevant here. For purposes of this appeal, we need only note that appellant was convicted on evidence that included the testimony of three eyewitnesses that he shot and killed Morris and Myrick. DISCUSSION I. A. On the eve of trial, at approximately 5:10 p.m., the circuit court conducted a motions hearing.

At the outset of that hearing, the prosecutor informed the court that appellant “stated something to [him] about the release of his counsel.” In response, the court immediately exclaimed: “That’s not going to happen.” Then, without asking him if or why he wanted to release his counsel, the court told appellant that, if he did so, he would have to represent himself or retain a new attorney by the next morning because the trial was not going to be postponed. Appellant elected to retain his counsel. The record reflects the following: [The State]: The first issue to deal with on the record is that I believe [appellant] has stated something regarding the release of his— [The Court]: Mr. [prosecutor], I’m losing you. I’m sorry. [The State]: I’m sorry, Your Honor.

I believe [appellant] stated to me about the release of his counsel. I wanted to deal with that on the record. ²⁸¹ [The Court]: Oh, yeah. That’s not going to happen. I mean, you got two choices.

You can go to trial with [your current defense counsel]. You got three choices, [appellant.] You can go to trial with [current counsel]. [Appellant]: Yes, sir. [The Court]: You can have a new lawyer come in tomorrow, ready to go or you can go without a lawyer. I’m not going to postpone the case. [Defense Counsel]: Or he can avail himself on the plea agreement. [The Court]: Yeah. [Defense Counsel]: Okay. [The Court]: But I don’t, you know—well, yeah he could, but I’d want to be really careful on that. So, I will not postpone your case, [appellant].

So, we can’t do it. We can’t have an efficient or try to have an efficient courthouse. You want a trial. God bless you.

You’re entitled to it and I’m going to do everything in my power to get you a fair trial, but it’s not going to be postponed. In fact, I don’t know if you just heard me. There’s another case that we sort of bumped so that you could go first. Now, if I postpone yours, I wouldn’t be able to try theirs.

Get a new lawyer for tomorrow which I don’t think you can do. Take the plea or go ahead with [current counsel] now. What’s your choice? [Appellant]: Go with [current counsel]. At the conclusion of the hearing, the issue of appellant’s representation was raised for a second time: [The Court]: All right.

Any other motions other than the motion to suppress. [Defense Counsel]: No. [The Court]: All light. Suppress the photo—no 4th Amendment issues, 5th Amendment, 6th Amendment, nothing. All right, gentlemen. [Defense Counsel]: Other than my previous 6th Amendment issue— ²⁸² [The Court]: Which was what? [Defense Counsel]: Inability to have the counsel of his choice. [The Court]: Yeah. Yeah, he does if he can get him here by tomorrow.

All right. I’ll see you all tomorrow. The trial proceeded the following day with appellant’s then current counsel defending him. B. Appellant contends that his convictions “must be reversed because the trial judge violated the explicit requirements of Maryland Rule 4-215(e),” regarding the possible discharge of his defense counsel.

To support that contention, he relies on the prosecutor’s pre-trial statement to the court that appellant had “said something ... about releasing his counsel” and argues that that statement, “albeit somewhat indirect, was certainly sufficient to” trigger the requirements of Rule 4-215(e). He further argues that the circuit court violated that rule because it failed to ask “his reasons for wanting to discharge counsel.” In response, the State contends that there was no need for the circuit court to comply with the requirements of Rule 4-215(e) because it was the prosecutor, and not appellant or defense counsel, who raised the discharge issue, and thus, the rule was not invoked. The State further argues that, because he did not object to “the case proceeding] with defense counsel providing representation,” appellant, “in effect, withdrew his request, if any, to discharge counsel and thus waived any claim that the trial court erred with respect to that request.” We are not persuaded by either argument, and, because we hold that there was a failure to comply with Rule 4-215(e), we are required to reverse appellant’s convictions. See, e.g., Williams v. State, 321 Md. 266, 273-74 , 582 A.2d 803 (1990) (reversing a defendant’s convictions because, after he indicated a desire to discharge his counsel, the circuit court failed to inquire why he wanted to do so); Hawkins v. State, 130 Md.App. 679, 688 , 747 A.2d 759 (2000) (same). ²⁸³ As the Court of Appeals has stated: “A defendant’s request to discharge counsel implicates two fundamental rights that are guaranteed by the Sixth Amendment to the United States Constitution: [4] the right to the assistance of counsel and the right to self-representation.” State v. Campbell, 385 Md. 616, 626-27 , 870 A.2d 217 (2005).

On the other hand, “[t]he right to counsel may be waived by the defendant provided that ‘he knows what he is doing and his choice is made with his eyes open.’ ” Id. at 627 , 870 A.2d 217 (quoting Fowlkes v. State, 311 Md. 586, 589 , 536 A.2d 1149 (1988)). Maryland Rule 4-215 “was designed to protect both the right to counsel and the right to self-representation and ensures that decisions to waive counsel would pass constitutional muster.” Campbell, 385 Md. at 629 , 870 A.2d 217 . To that end, Rule 4-215(e) states: 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 ²⁸⁴ 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. (Emphasis added.) This rule is not self-executing and comes into effect when “a defendant requests permission to discharge an attorney.” Id. The rule, however, does not indicate how the request is to be made, and it “ ‘is silent as to what level of discourse is required to discharge counsel.’ ” Henry v. State, 184 Md.App. 146, 171 , 964 A.2d 678 (2009) (quoting Campbell, 385 Md. at 629 , 870 A.2d 217 ), cert. granted on other grounds, 408 Md. 487 , 970 A.2d 892 (2009).

In addition, the history of Rule 4-215(e) provides no direct commentary on the phrase “requests permission to discharge an attorney.” Campbell, 385 Md. at 628 n. 4, 870 A.2d 217 (italics in original). What we know is that subsection (e) was derived from former Maryland Rule 723c, which stated in relevant part: When a defendant indicates a desire or inclination to waive counsel, the court may not accept waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision[.] Id. (emphasis added; quotation omitted). The Court of Appeals has said that “[t]he request does ‘not need to be a talismanic phrase or artfully worded to qualify as a request to discharge, so long as a court could reasonably conclude that [a person] sought to discharge his counsel.’ ” Henry, 184 Md.App. at 171 , 964 A.2d 678 (quoting Campbell, 385 Md. at 632 , 870 A.2d 217 ).

In other words, “to establish the minimum ‘declaration’ sufficient to constitute [an] assertion of the right to self-representation, the ‘declaration [must serve] to alert the trial judge that further inquiry may be necessary.’ ” Leonard v. State, 302 Md. 111, 124 , 486 A.2d 163 (1985) (quoting Snead v. State, 286 Md. 122, 127 , 406 A.2d 98 (1979)). “ ‘Therefore,’ ” the Court of Appeals has concluded ²⁸⁵ that, “ ‘any statement by the defendant from which the court could reasonably conclude that the defendant desired self-representation would be sufficient.’ ” Id. Once the court is alerted to the defendant’s desire to discharge his counsel, it “should engage in a simple three-step process.” Hawkins, 130 Md.App. at 687 , 747 A.2d 759 . “The court should first ask the defendant why he wishes to discharge counsel, give careful consideration to the defendant’s explanation, and then rule whether the explanation offered is meritorious.” Id. “Thus, the onus is on the trial judge to ensure the reason for requesting dismissal of counsel is explained.” Id. at 686 , 747 A.2d 759 . If the reason given is meritorious, a court is “obligated to grant the request and give [the defendant] time to retain new counsel.” Williams, 321 Md. at 274 , 582 A.2d 803 . If it is not, a court may proceed in one of three ways: “(1) deny the request and, if the defendant rejects the right to represent himself and instead elects to keep the attorney he has, continue the proceedings; (2) permit the discharge in accordance with the Rule, but require counsel to remain available on a standby basis; (3) grant the request in accordance with the Rule and relieve counsel of any further obligation.” Id. at 273 , 582 A.2d 803 .

Two Maryland cases clearly demonstrate these principles. In Williams, supra, before his trial began, Williams informed the trial court: “I want another representative.” 321 Md. at 267 , 582 A.2d 803 (emphasis added). In response, the court stated: “No, sir, at this point we are going to proceed. This is not going to be a harangue or filibuster....

You are now going to trial.” Id. at 268 , 582 A.2d 803 . Thereafter, Williams was convicted of, among other crimes, assault. Id. He appealed, arguing that, under Rule 4-215(e), he was entitled to a new trial because the court refused to allow him to explain the reasons for wanting to discharge counsel.

The Court of Appeals agreed, reasoning that “the trial court could not have properly exercised any of [its] options [with respect to Williams’ request] because it had no basis—Williams’ rea ²⁸⁶ sons—upon which to act.” Id. at 274 , 582 A.2d 803 . Therefore, the Court found that “[allowing a defendant to specify the reasons for his request is an integral part of the Rule and cannot be dismissed as