Leonard v. State

COLE, Judge. The issue in this case is whether the trial court was required to conduct a waiver of counsel inquiry before allowing the defendant to proceed pro se. The facts are as follows. John Lee Leonard was indicted for possession with intent to distribute a controlled dangerous substance, simple possession, and conspiracy.

Keith Krissoff entered his appearance as Leonard’s assigned public defender. ¹¹⁴ On May 21, 1982, a hearing was held in the Circuit Court for Anne Arundel County on Leonard’s motion to suppress evidence. Leonard was not present. Sergeant Russell Hall of the Annapolis Police Department testified that he received information from a confidential informant that Leonard was selling heroin from a blue Grand Prix with New York registration in the vicinity of Clay and Washington Streets in Annapolis. Sergeant Hall found Leonard who, after some preliminary negotiations, sold Sergeant Hall “a pharmacy fold” of purported cocaine for fifty dollars.

When the officer realized that the pharmacy fold was empty, he signaled his back-up unit to arrest Leonard. The automobile was taken to the Annapolis Police Station where a search conducted pursuant to a search warrant revealed thirteen glassine envelopes of heroin. The Circuit Court denied Leonard’s motion to suppress this evidence. When the court called Leonard’s case for trial on May 25, 1982, he requested a postponement to locate a witness known to him only by the name of “Fish.” The trial court denied his request in the following colloquy with Leonard: COURT: That’s clear.

You’ve had reasonable opportunity [to locate the witness]. You didn’t even disclose this witness to your attorney. The court denies the request for a continuance. MR.

LEONARD: What about...can I get...can I get appointed another counsel? COURT: No. MR. LEONARD: Why not? COURT: Because I said so.

MR. LEONARD: Just because you say so, I don’t think he’s [Krissoff] fairly representing me. Why can’t I get appointed other counsel? COURT: He has done an...he’s done an excellent job representing you.

MR. LEONARD: Well, he’s not representing me, then. COURT: Well, you’ve made your motion and I’ve refused it. ¹¹⁵ Immediately after this exchange, Leonard unsuccessfully attempted to leave the courtroom. After sheriffs restrained him, Leonard explained that, “I don’t want an unfair trial.

I don’t want [Krissoff] to represent me. You can throw me in the bullpen. That’s alright with me.” Leonard then tried to leave the courtroom, but was again physically restrained by sheriffs. The court ordered the sheriffs to remove Leonard from the courtroom, and indicated that the trial would continue with Leonard outside the courtroom but that Krissoff could consult with Leonard whenever Krissoff liked.

Upon completing the voir dire of prospective jurors, the trial court allowed Krissoff to consult with Leonard concerning the remaining peremptory strikes and to ascertain whether Leonard wanted to return to the courtroom. After Krissoff consulted with Leonard, the following exchange transpired: MR. KRISSOFF: Your Honor, for the record, Keith Krissoff ... subsequent to the Voir Dire of the jury I went down and conferred with Mr. Leonard. He indicated to me that it was his desire to represent himself in this matter.

I explained to him what benefit I could be to him in the trial and indicated to him that I thought I could be of substantial benefit to him, that I thought he had a reasonable chance in this case. Despite that, he indicates that he wants to represent himself and I believe under the case law, if the court finds that that’s what... COURT: I have no problem. MR.

KRISSOFF: ... he really wants to do... COURT: I’ll permit it provided he conducts himself in an orderly manner representing himself, but I won’t discharge you. You’ll remain as counsel for any consultation or any use that he may choose to use. MR.

KRISSOFF: I have a problem with that, Your Hon- or, in that what am I doing at the trial table if I’m not representing him? ¹¹⁶ COURT: You’re there because of my order ... just as simple as that. Okay. Let’s bring him up and see if he’ll conduct himself in an orderly manner. Back to the trial table.

When Leonard returned to the courtroom, he advised the court that he wanted to conduct his own defense: COURT: Alright. You can approach the bench. (Bench conference) COURT: Mr. Leonard, at the bench, sir. (Defendant approaches the bench.) COURT: I understand you want to conduct your own defense.

MR. LEONARD: That’s the only choice I got. COURT: I take it your answer is 'yes? MR.

LEONARD: It’s got to be yes. It’s the only choice I have. COURT: Alright. I’m going to allow Mr. Krissoff to stay ...

MR. LEONARD: I don’t want you to allow him to do nothing. I have a right to do it (all in one man). . (Mr. Leonard’s diction is not proper.) COURT: Well, fine.

MR. LEONARD: (?) COURT: You have a right to ... Mr. Leonard, do you want to let me finish? MR.

LEONARD: You can finish, man. I’m ready to go on with it. I don’t want to hear no more you got to say about it. COURT: Well, you’re going to hear what I have to say.

Mr. Krissoff is going to sit at the table. You can consult with him or not as... MR. LEONARD: I’m not consulting with him...

COURT: That’s up to you. MR. LEONARD: ... I’m letting you know now.

COURT: That’s up to you. ¹¹⁷ MR. LEONARD: So don’t even put it on the record about he’s a legal advisor for me, because he’s not. COURT: He’s going to ... MR.

LEONARD: He’s not no legal advisor for me. COURT: Are you finished? MR. LEONARD: Right.

COURT: He’s going to sit at the table for you to consult with. If you choose to avail yourself of him, that’s your privilege. MR. LEONARD: I don’t need him.

I don’t want him there. COURT: That’s your ... MR. LEONARD: Don’t keep telling me that.

COURT: I intend to keep telling you until I get it on the record exactly what I want to do. MR. LEONARD: I don’t care what you want to do. COURT: Mr. Leonard ...

MR. LEONARD: I tell you, I don’t care what you want to do. COURT: ... you have a charge against you which is serious enough. MR.

LEONARD: I’m not guilty of the charge and you’re trying to force me to try it because the witness ain’t here to testify ... and (?) ... you’re telling lies about me. COURT: Finished? Do you understand how we’re proceeding? MR.

LEONARD: Sure. [Emphasis supplied] After the jury was selected and sworn, the trial court stated: The defendant has chosen to represent himself ... which is his privilege. I have ordered [Krissoff] to stay at the table for Mr. Leonard to consult or not to consult as he sees fit with his attorney of record. That’s up to him. But he has indicated that he wishes to conduct his own defense and the court obviously is going to permit him to do that. ¹¹⁸ The trial then proceeded, with Leonard acting as his own counsel.

Leonard made opening and closing statements to the jury, interposed objections, cross-examined the prosecution’s witnesses, and called two witnesses in his own defense. The trial court advised Leonard of his right to remain silent and made a motion for a directed verdict on his behalf. At the conclusion of the case, the court asked Krissoff if he wished any particular jury instructions. Leonard interposed: “I’d like to state again that Mr. Krissoff is not representing me and he’s not no legal advisor for me.” Finally, Krissoff answered the question, summarizing his participation in the trial: MR.

KRISSOFF: Your Honor, I’d like it put on the record that Mr. Leonard has indicated that he doesn’t want me to represent him. I know the court has ordered me to be here. I’ve been here, available for consultation, but out of respect for Mr. Leonard and his desire to proceed on his own, he has indicated he wants me to make no objections, to make no statements to the court, to make no statements to the jury ... I have honored his request and the court will note that throughout the trial I made no objections, even though I would have, obviously, had I been conducted the trial ... because that is Mr. Leonard’s wish with regard to my participation in the case.

I am going to honor that wish. I think the court should, obviously, instruct as it sees fit. The jury convicted Leonard of possession with intent to distribute a controlled dangerous substance and conspiracy, and the court sentenced him to ten years’ imprisonment to run consecutive to any sentence Leonard was then serving. The Court of Special Appeals affirmed his conviction and sentence in an unreported per curiam opinion filed March 23, 1983, reasoning that Leonard’s “tactics did not indicate a waiver of his right to counsel.

He clearly wanted new counsel. Under the circumstances he was not entitled to new counsel.” We granted certiorari to determine the issue presented. ¹¹⁹ Two independent constitutional rights are involved in this case: the right to be represented by counsel and the right to defend pro se. The rights are mutually exclusive and the defendant cannot assert both simultaneously. The United States Supreme Court and other courts throughout the nation have thus sought to protect the right to counsel unless the defendant properly asserts his right to represent himself.

The assertion of this right is conditioned upon a valid waiver of the right to assistance of counsel. In Powell v. Alabama, 287 U.S. 45, 71 , 53 S.Ct. 55, 65 , 77 L.Ed. 158, 171-72 (1932), the Supreme Court held that the right to assistance of counsel was guaranteed by the sixth and fourteenth amendments 1 and concluded that due process requires that, at least in capital cases, counsel be appointed for a criminal defendant. The Supreme Court subsequently extended the right to assistance of counsel to all criminal defendants in federal courts and enunciated the standard of proof of waiver of the right to counsel. Johnson v. Zerbst, 304 U.S. 458 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938).

The Johnson Court stated: It has been pointed out that “courts indulge every reasonable presumption against waiver” of fundamental constitutional rights and that we “do not presume acquiescence in the loss of fundamental rights.” A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. Id., 304 U.S. at 464 , 58 S.Ct. at 1023 , 82 L.Ed. at 1466 (footnotes omitted). ¹²⁰ A decade after its decision in Johnson the Court elaborated on the waiver requirement in a case involving a defendant who had been indicted for conspiracy to violate the Espionage Act of 1917. Von Moltke v. Gillies, 332 U.S. 708 , 68 S.Ct. 316 , 92 L.Ed. 309 (1948) (plurality opinion).

In that case, Von Moltke was arrested by federal agents and was detained for over a month without the benefit of counsel. She was eventually taken to federal district court where, after signing a document stating that she waived the “ ‘right to be represented by counsel at the trial of this case,’ ” she pleaded guilty. No counsel was present during this proceeding. The plurality quoted Johnson v. Zerbst and its standard of proof of waiver of the right to counsel.

The Von Moltke court concluded: To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge’s responsibility. To be valid such waiver must be made with an’ apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused’s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.

Id., 332 U.S. at 723-24 , 68 S.Ct. at 323 , 92 L.Ed. at 321 (footnote omitted); see also Adams v. United States ex rel. McCann, 317 U.S. 269, 279 , 63 S.Ct. 236, 242 , 87 L.Ed. 268, 275 (1942). In 1963, the Court extended the right to counsel to all indigent defendants in state criminal proceedings. Gide ¹²¹ on v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963).

Not until 1975, however, did the Court determine that a defendant in a state criminal trial has an independent constitutional right of self-representation under the sixth and fourteenth amendments. Faretta v. California, 422 U.S. 806, 807 , 95 S.Ct. 2525, 2527 , 45 L.Ed.2d 562, 566 (1975); see McKaskle v. Wiggins, — U.S.-,-, 104 S.Ct. 944, 950 , 79 L.Ed.2d 122, 132 (1984) (“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.”); State v. Renshaw, 276 Md. 259, 267 , 347 A.2d 219, 225 (1975); see also State v. Berry, 287 Md. 491 , 413 A.2d 557 (1980); State v. Bryan, 284 Md. 152 , 395 A.2d 475 (1978); Thompson v. State, 284 Md. 113 , 394 A.2d 1190 (1978). The Faretta Court cautioned, however, that a defendant may proceed pro se only when he voluntarily and intelligently elects to do so. In this regard, the Court emphasized that the accused “should be made aware of the dangers and disadvantages of self-representation, so that the court will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta v. California, supra, 422 U.S. at 835 , 95 S.Ct. at 2541 , 45 L.Ed.2d at 582 (quoting Adams v. United States ex rel.

McCann, supra, 317 U.S. at 279 , 63 S.Ct. at 242 , 87 L.Ed. at 275 ). The dissent in Faretta , however, pointed out that the majority failed to establish any practical procedural guidelines for courts to decide whether and how a defendant is to exercise the right to proceed pro se. Faretta v. California, supra, 422 U.S. at 852 , 95 S.Ct. at 2549-50 , 45 L.Ed.2d at 591-92 (Blackmun, J., dissenting). Interestingly, Maryland in 1972 had already recognized the constitutional implications of the right to counsel and the right of a defendant to represent himself if he intelligently and voluntarily waived his right to counsel.

This recognition was evidenced in Maryland Rule 719, the pre ¹²² cursor to Rule 723 c. 2 Because the rule is intended to implement the constitutional rights, our task is limited to determining whether the trial court complied with the