McCracken v. State

JAMES R. EYLER, Judge. On January 17, 2002, a jury in the Circuit Court for Cecil County convicted Ted Aaron McCracken, appellant, of carrying a concealed deadly weapon. The court sentenced appellant to a term of imprisonment of three years, with all but fifteen months suspended, and three years of probation upon release. On appeal, appellant contends that the trial court (1) failed to comply with the waiver of counsel provisions of Maryland Rule 4-215, (2) erred in permitting the State to ³³⁴ offer rebuttal testimony regarding appellant’s statements to police while in their custody, (3) committed plain error by permitting the State’s inflammatory and mischaracterizing closing argument, (4) erred by failing to exercise its discretion pursuant to Maryland Rule 4-265 to waive the time requirements for appellant to request the issuance of subpoenas, and (5) erred in denying appellant’s motion for judgment of acquittal.

We shall reverse based on issue (2) and shall comment on the other issues for the benefit of the court on remand. Facts On May 10, 2000, appellant entered the First National Bank of North East in Elkton, Maryland. One of the bank tellers, believing that she observed a suspicious bulge in appellant’s jacket, contacted the Elkton Police Department. At a pretrial suppression hearing on the morning of the trial, Officer Ronald Odom of the Elkton Police Department testified that he entered the bank and spoke with Sylvia Jones, a bank clerk, who informed him that there was a man inside the bank attempting to open a new account and that the teller assisting him had noticed a bulge under his jacket and a strap across his chest.

Officer Odom testified that he walked over to where-appellant was seated, grabbed hold of appellant’s arm, advised him that he was going to come outside with him and to keep his hands where he could see them, maintained control of appellant, and escorted him outside. Officer Odom further testified that he observed a holster strap across appellant’s chest, but that he could not see a gun at that time because of the jacket that appellant was wearing. Officer Odom testified that, once outside, he and Patrolman James Anderson patted appellant down, felt a bulge, and removed a weapon. Officer Odom described the gun as “an old-time civil war type revolver” and testified that he had “very little knowledge of those types of firearms.” He also testified that appellant explained, at the time, that the firearm “wasn’t real,” but when asked if, when the trigger was pulled, the firearm shot a projectile out of the muzzle, appellant responded that it would. ³³⁵ Finally, Officer Odom asked appellant if, when fired, the gun was capable of killing somebody, and appellant responded that it was.

Also at the pretrial suppression hearing, Patrolman Anderson testified that, when he arrived at the scene, Officer Odom was escorting appellant out of the bank to talk to him. Patrolman Anderson testified that, after explaining to appellant that they were going to pat him down, and when they began to do so, appellant stated that he had a revolver in a shoulder holster. The officers asked appellant to keep his hands up and away from the weapon, and Patrolman Anderson removed the firearm from appellant’s holster and secured it in his vehicle. Patrolman Anderson also testified that the firearm appeared to be an “old-style revolver,” admitted that he was not a pistol expert, but explained that there appeared to be two “wadded or loaded cylinders” on the discharge side of the weapon.

He testified that he believed that the gun required a primer cap, black powder, and a lead ball in order to be loaded. On cross-examination, Patrolman Anderson testified that he did not remove the cylinder from the weapon at the scene because he was not familiar enough with it in order to disassemble it safely. Appellant also testified at the suppression hearing, explaining that once the officers had taken the gun, they began asking him questions about where he had been. Appellant testified that the officers placed him in handcuffs and took the gun from him before posing any questions to him.

Appellant testified that he had just come from the shooting range that morning and did not have time to take the weapon home and put it away. He testified that he had gone into the bank to open an account and to deposit a $1500 check that he had just received. When appellant was taken into custody, he had the check, his passport, and his driver’s license on the desk in front of him. Appellant explained that, at the time that the officers arrested him, the gun was not loaded in a way that it could be fired because it required four components in order to fire — a ball projectile, wadding, black powder, and a percussion firing cap — and none of the chambers in the gun contained all four of those components. ³³⁶ The trial court denied appellant’s motion to suppress the gun, reasoning that the officers had probable cause for the stop and search and to pat appellant down for weapons.

The court granted appellant’s motion to suppress the statements appellant made to police during the arrest, however, finding that appellant was in custody from the moment that the officer entered the bank and escorted appellant outside, such that if the officers wanted to question appellant, they were obligated to advise him of his Miranda rights. Their failure to do so mandated suppression of appellant’s statements. On the day of trial, appellant, proceeding pro se, asked the court to allow him to issue subpoenas. The court explained that subpoenas are intended to be issued ahead of time, in preparation for trial, and denied appellant’s request. 1 On the morning of trial, appellant also asked the court to reconsider his earlier request for assignment of counsel.

After reviewing appellant’s previous discharges of attorneys and failure to secure alternative counsel through the Public Defender’s Office, the court found that appellant effectively waived his right to counsel. Accordingly, the court explained that the case would go to trial that day with appellant representing himself. 2 At trial, Yvonne Titter, a bank teller, testified that appellant told her that he wanted to open an account, that she asked him to have a seat in the lobby, and that when he sat down, the front of his jacket came open and she saw the “end” of a gun. Sylvia Jones, another bank employee, testified at trial that she assisted appellant in opening a new account while waiting for police to arrive. Ms. Jones stated that, when appellant reached into his jacket to produce identification to open the account, she observed the butt of a gun. ³³⁷ Officer Odom and Patrolman Anderson were also called by the State at trial.

They testified to the same information that they had provided during the suppression hearing, except for that which had been suppressed by the court pertaining to appellant’s statements at the time of arrest. In addition, Officer Odom testified at trial that he was not familiar enough with the firing mechanism of black powder weapons to testify about them, but stated that four of the six chambers of the gun were empty and that the other two contained cotton swabbing. He also testified that there were caps placed on two of the cylinders and that he assumed there were projectiles in those two chambers. Finally, Officer Odom testified that he did not disassemble the pistol when he seized it.

Patrolman Anderson testified at trial that the gun had four empty cylinders, two full ones, and there were firing caps on the two full ones. He also testified that the gun was transported to the Elkton Police Department assembled within its holster, and the gun was never fired while in police possession. Patrolman Dennis Wood testified at trial that he was familiar with black powder weapons as a firearms instructor. He testified that, in order to fire, the seized weapon would need black powder, a lead projectile ball, a percussion cap attached to the rear of the cylinder, and a patch attached to the front of the round.

Patrolman Wood testified that the gun would not be operational without the percussion caps and there were no percussion caps on the gun when he examined it. He testified that four empty chambers on the gun appeared to have been loaded, primed, and discharged. At the end of the State’s case, appellant moved for judgment of acquittal, arguing that the State had failed to prove concealment of a dangerous or deadly weapon. The court denied the motion.

Appellant chose to testify in his own defense at trial and explained that, when he was arrested, he was returning from the Elk Neck State Park shooting range, where he had fired the weapon in order to clean it out and get the bullets out of ³³⁸ it. Appellant also testified that he never had any intent to conceal the weapon, as was evidenced by the fact that it was clearly observable by people in the bank. Finally, appellant testified at trial about some car accidents and an incident with a neighbor that led him to believe that he needed to carry a weapon for protection. On cross-examination, appellant testified that the gun was not loaded when he carried it into the bank because he had emptied it at the firing range.

Appellant explained that the gun did not have all of the components necessary for the weapon to fire, in alignment, at the time that he was arrested. The State called Patrolman Anderson as a rebuttal witness for the purpose of impeaching appellant’s cross-examination testimony that the gun was not loaded at the time of the incident. Appellant objected on the grounds that Patrolman Anderson would testify about a conversation he had with appellant, but the court allowed the officer to testify for impeachment purposes. Patrolman Anderson testified that at the time of his arrest, appellant told himself and Officer Odom that the weapon was loaded, capable of firing, and that if fired, the projectile would exit the barrel and have a potentially deadly effect if someone were struck.

The jury convicted appellant of carrying a concealed dangerous or deadly weapon, pursuant to section 36 of article 27 of the Maryland Code (1957, 1996 Repl.Vol., 2001 Supp.). A timely appeal was filed to this Court. Discussion We shall address the issues out of order because resolution of the second issue presented by appellant mandates reversal of his conviction. The remaining issues will be discussed in various levels of depth. 1 Appellant contends that the trial court erred in permitting the State to offer rebuttal testimony regarding appellant’s statements to police while in custody. ³³⁹ As previously stated, the court granted appellant’s motion to suppress the statements that he made to the arresting officers while in custody on the grounds that they were the result of custodial interrogation, and the police did not first advise him of his Miranda rights.

During the presentation of the State’s case, Officer Odom and Patrolman Anderson were called to the stand but were not permitted to testify about appellant’s statements. During the prosecutor’s cross-examination of appellant, appellant stated that the gun he wore into the bank was not loaded or capable of being fired. At the close of appellant’s case, the State recalled Patrolman Anderson to the stand as a rebuttal witness. The following exchange occurred when Patrolman Anderson retook the stand. [Prosecutor]: Officer Anderson, you heard the testimony of Mr. McCracken.

Mr. McCracken made a statement that he said the gun wasn’t loaded at the time of the incident. Is that what he advised you at the time in which you confiscated the gun? [Witness]: No, sir. [Appellant]: Objection [The Court]: Just a minute. Just a minute. What are you objecting to?

What’s the basis for your objection? [Appellant]: He’s asking — he’s relating something about the conversation that he claims he had with me. [The Court]: What is the basis for your asking the question? [Prosecutor]: For impeachment purposes, Your Honor. [The Court]: What’s the impeachment purpose. What did he say that you want to rebut? [Prosecutor]: That Mr. McCracken stated to the officers that he had a gun and it was loaded at the time of the incident. [The Court]: What did he say he said? [Prosecutor]: He said before that it wasn’t. He testified on cross that the gun wasn’t loaded at the time. ³⁴⁰ [The Court]: All right. I will permit it. [Witness]: He stated to myself and Officer Odom the weapon was loaded, the weapon was capable of firing, and if the weapon was fired that a projectile would exit the barrel. [Prosecutor]: And did he say what effect that would have on anybody? [Witness]: The potentially deadly effect if they were struck.

During its closing, the State relied on Patrolman Anderson’s rebuttal testimony, reminding the jurors that the defendant told the officers that the gun was loaded at the time that he was taken into custody. Appellant concedes, as he must, that statements that are deemed inadmissible in the State’s case in chief based on a Miranda violation may nevertheless be admissible in rebuttal to impeach a defendant’s trial testimony. See Md. Rule 4-252(h)(2); see also Oregon v. Hass, 420 U.S. 714, 723-24 , 95 S.Ct. 1215 , 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 224 , 91 S.Ct. 643 , 28 L.Ed.2d 1 (1971) (explaining that even though “the Government cannot make an affirmative use of evidence unlawfully obtained,” the defendant should not be permitted to “provide himself with á shield against contradiction of his untruths”); State v. Kidd, 281 Md. 32 , 375 A.2d 1105 (1977) (recognizing the Harris-Hass impeachment exception to the Miranda exclusionary rule). Appellant argues, however, that there was no reasonable inference of inconsistency sufficient to invoke the Harris-Hass impeachment exception.

Specifically, appellant contends that his testimony during cross-examination stated that the pistol was not loaded and capable of being fired at the time of his arrest, i.e., did not have all of the necessary components to fire, in alignment, at the time of the arrest, while the impeaching statement attributed to him only conveyed that the firearm was functional and capable of firing a lethal projectile, i.e., that it was a “real,” functioning firearm. Appellant also argues that the statements constituted improper rebuttal evidence because the State failed to lay a proper foundation for the introduction of appellant’s statements as rebuttal evidence and because the ³⁴¹ statements were beyond the scope of permissible rebuttal in this case. In response, the State first argues that appellant’s claim was not properly preserved for review because his current claims differ from the basis for his objection that he offered to the trial court. On the merits, the State argues that the rebuttal testimony was directly inconsistent with appellant’s statement on cross-examination and that the trial court properly exercised its discretion in admitting the testimony as impeachment evidence.

While we acknowledge the State’s argument that appellant’s basis for objecting to the rebuttal testimony did not mention the specific claims he now raises, we think that it was sufficiently broad to preserve those claims for appellate review. We also conclude that the trial court erred in permitting the State to offer the rebuttal testimony, given its failure to lay the proper foundation for impeaching appellant with a prior inconsistent statement, pursuant to Maryland Rule 5-613. We decline to find that the error was harmless because appellant’s attempts to demonstrate why his statements were not inconsistent reflect the explanation that presumably would have been given had the State laid the proper foundation during cross-examination by questioning appellant about his previous statements. In State v. Kidd, 281 Md. 32 , 375 A.2d 1105 (1977), the Court of Appeals’ first opportunity to discuss the full impact of the Harris and Hass holdings, the Court adopted a narrow interpretation of the exception.

See id. at 47, 375 A.2d 1105 (“We construe Harris and Hass as requiring that the issues sought to be impeached by the challenged extrajudicial statement of the accused be initiated by the accused on direct examination. The prosecution is not permitted to use tainted evidence to impeach an issue which it first solicited on cross-examination.”); see also id. at 49, 375 A.2d 1105 (“We also construe Harris and Hass as limiting the impeachment exception to the specific credibility of the defendant on matters as to which there is a contradiction between his testimony and ³⁴² the impeaching statement. The limitation of Miranda does not extend to the defendant’s credibility generally, but to his specific credibility arising from a realistic contradiction between the issues he initiated on direct examination and the impeaching statement.”) More pertinent to our resolution of this case, the Kidd Court also observed that Maryland law requires additional procedures when impeaching a witness with a prior inconsistent statement, even when doing so with a statement that is inadmissible in the State’s case-in-chief because of a Miranda violation. Id. at 47 n. 8, 375 A.2d 1105 . 3 The Court stated: We observe that the general rule is that the credit to be given a witness may be impeached by showing that he has made statements which contradict his testimony in respect to material facts (but not in respect to facts which are collateral, irrelevant or immaterial), provided a proper foundation has been laid.

Smith v. State, 273 Md. 152, 157-160 , 328 A.2d 274 (1974); Joppy v. Hopkins, 231 Md. 52, 56 , 188 A.2d 545 (1963), and cases cited therein; Kantor v. Ash, 215 Md. 285, 290 , 137 A.2d 661 (1958); Mahan v. State, 172 Md. 373, 380 , 191 A. 575 (1937); Davis v. State, 38 Md. 15, 50 (1873). The foundation is laid by interrogating the witness as to when, the place at which, and the person to whom such contradictory statements were made. This is but fair and just in order that the witness may be enabled to refresh his recollection in regard to such statements, and be afforded the opportunity of making such explanation as he may deem necessary and proper. Baltimore Transit Co. v. Castranda, 194 Md. 421, 439 , 71 A.2d 442 (1950); O’Brien v. State, 126 Md. 270, 285 , 94 A. 1034 (1915); Brown v. State, 72 Md. 468, 475 , 20 A. 186 (1890).

If the witness denies making the ³⁴³ designated statement or asserts that he does not remember whether he made it, the foundation contemplated by the general rule for the introduction of the statement has been satisfied. See Campbell, etc. v. Patton, 227 Md. 125, 141 , 175 A.2d 761 (1961); Moxley v. State, 205 Md. 507, 516-517 , 109 A.2d 370 (1954); Myers v. State, 137 Md. 482, 490 , 113 A. 87 (1921); Leister v. State, 136 Md. 518, 523 , 111 A. 78 (1920). See generally Cooper v. State, 14 Md.App. 106, 110-111 , 286 A.2d 579 (1972); Sanders v. State, 1 Md.App. 630, 640-641 , 232 A.2d 555 (1967). Id.

The foundational requirements for impeaching a witness with a prior inconsistent statement are reflected in the plain language of Maryland Rule 5-613, which provides: (a) Examining witness concerning prior statement. A party examining a witness about a prior written or oral statement made by the witness need not show it to the witness or disclose its contents at that time, provided that before the end of the examination (1) the statement, if written, is disclosed to the witness and the parties, or if the statement is oral, the contents of the statement and the circumstances under which it was made, including the persons to whom it was made, are disclosed to the witness and (2) the witness is given an opportunity to explain or deny it. (b) Extrinsic evidence of prior inconsistent statement of witness. Unless the interests of justice otherwise require, extrinsic evidence of a prior inconsistent statement by a witness is not admissible under this Rule (1) until the requirements of section (a) have been met and the witness has failed to admit having made the statement and (2) unless the statement concerns a non-collateral matter.

Md. Rule 5-613 (2003). In Bane v. State, 73 Md.App. 135 , 533 A.2d 309 (1987), we recognized that “[t]he purpose of laying a foundation is ‘to accord the witness the opportunity to reflect upon the prior statement so that he may admit it or deny it, or make such explanation of it as he considers necessary or desirable.’ ” Id. ³⁴⁴ at 155, 533 A.2d 309 (quoting Devan v. State, 17 Md.App. 182, 193 , 300 A.2d 705 , cert. denied, 268 Md. 747 (1973)). In addition, we recognized more recently that “ ‘[w]hen using a previously made oral statement for impeachment, the cross-examiner must inform the witness of the time and place the statement was made, the person to whom it was made, and its substance.’ ” Snyder v. State, 104 Md.App. 533, 560 , 657 A.2d 342 (1995) (quoting Bane, 73 Md.App. at 155 , 533 A.2d 309 ). It is clear from the record that the State failed to give appellant an opportunity, during cross-examination, to explain his statements to the officers.

After eliciting testimony from appellant on cross-examination, to the effect that the gun was not loaded when he entered the bank on the day in question, the prosecutor followed up by commenting that the officers said the gun was loaded, which appellant responded to by further explaining that the gun did not have all of the necessary components to fire at the time'. The prosecutor never asked appellant about the circumstances surrounding the statements he made to the officers at the time of his arrest, nor did he allow appellant to admit, deny, or explain the substance of the statements. Instead, the prosecutor waited for appellant to rest his case and then called Patrolman Anderson to the stand as a rebuttal witness to impeach appellant’s testimony through extrinsic evidence. Given the State’s failure to satisfy the foundational requirements for impeachment by a prior inconsistent statement, we hold that the court erred in permitting the rebuttal testimony and must reverse appellant’s conviction and remand for a new trial.

Our conclusion that the State’s failure to lay a proper foundation constitutes reversible error is supported by the fact that appellant offers a plausible explanation as to what his statements to the officers meant, such that if his version was accepted, the statements would potentially no longer be viewed as inconsistent. The purpose underlying Rule 5-613 suggests that this is exactly the type of situation for which the foundational requirements were created. ³⁴⁵ A finding of reversible error is also supported by the nature of the inconsistency in the present case and the court’s failure to give a limiting instruction. The impeachment centered on the issue of whether the gun was loaded when appellant entered the bank, a key fact relevant to proving the intent element of the crime with which appellant was charged. Although the nature of the inconsistency does not affect the requirements necessary for laying a proper foundation, it does lead us to conclude that appellant was prejudiced by the fact that no limiting instruction was given to explain to the jury that the impeachment testimony could only be considered for its impact on appellant’s credibility as a witness and not as substantive evidence of guilt.

This distinction was discussed in Hall v. State, 292 Md. 683 , 441 A.2d 708 (1982), where the Court’s holding that the trial court’s failure to give a limiting instruction did not amount to plain error relied heavily on the fact that the testimony by its nature was not substantive evidence of guilt and could only have been interpreted as impacting on credibility. Id. at 689-92 , 441 A.2d 708 . The impeachment testimony in Hall was more collateral than the impeachment in this case. The impeachment testimony offered by the State focused on a fact directly relevant to the jury’s determination of appellant’s guilt.

We hold that the court’s failure to give a limiting instruction, even if that point is unpreserved, constitutes plain error under the circumstances of this case. 2 Appellant also contends that the trial court failed to comply with the waiver of counsel provisions set forth in Maryland Rule 4-215 and that such failure resulted in a violation of appellant’s Sixth Amendment right to the assistance of counsel. While our holding on the first issue means that appellant’s conviction will be reversed and the case will be remanded to circuit court, we shall address the waiver of counsel issue for guidance on remand. After reviewing Maryland Rule 4-215 in its entirety, the record in the case in great detail, and applicable case law, we are satisfied that the court did not err ³⁴⁶ in finding that the requirements of Rule 4-215 had been complied with. Appellant argues that the trial court never complied with the mandatory waiver of counsel provisions of Rule 4-215.

Recognizing that the rule provides three basic ways that a criminal defendant may waive the right to counsel — express waiver, waiver by inaction, or waiver by discharge of counsel — each manner having different requirements, appellant contends that none was met by the trial court in this case. Appellant also asserts that an additional set of requirements, common to all three approaches, was not satisfied by the trial court. Consequently, appellant claims that these alleged defects constitute reversible error entitling appellant to a new trial. First, the State argues that examination of district court documents demonstrates compliance with the preliminary requirements of Rule 4-215(a).

Next, the State argues that Rule 4-215(b), governing express waivers, is inapplicable because appellant never indicated a desire to waive counsel. Finally, acknowledging that it is somewhat unclear whether the trial court’s finding of waiver of counsel was based on subsection (d), governing waiver by inaction, or subsection (e), governing waiver by discharge of counsel, the State contends that the trial court successfully complied with both. A careful review of the record leads to the conclusion that the trial court’s finding of waiver was based on satisfaction of the subsection (d) procedures for waiver by inaction, and that pursuant to subsection (d), the preliminary requirements of subsection (a) were also satisfied. “Maryland Rule 4-215 implements the constitutional mandates for waiver of counsel, detailing the specific procedure that must be followed by the trial court in order for there to be a knowing and intelligent waiver.” Johnson v. State, 355 Md. 420, 444 , 735 A.2d 1003 (1999) (Vincenti v. State, 309 Md. 601, 604 , 525 A.2d 1072 (1987); Fowlkes v. State, 311 Md. 586, 609 , 536 A.2d 1149 (1988)). The Johnson Court further explained that “[w]hether the defendant’s waiver is expressly ³⁴⁷ made to the judge by requesting to proceed to trial pro se, by inaction through simply appearing at trial without counsel present, or through discharging an attorney whose appearance has been entered, the trial court must comply with Md. Rule 4-215 in order for the defendant’s waiver of counsel to be valid.” Id.

Maryland Rule 4-215 provides in pertinent part: (a) First appearance in court without counsel. At the defendant’s first appearance in coúrt without counsel, or when the defendant appears in the District Court without counsel, demands a jury trial, and the record does not disclose prior compliance with this section by a judge, the court shall: (1) Make certain that the defendant has received a copy of the charging document containing notice as to the right to counsel. (2) Inform the defendant of the right to counsel and of the importance of assistance of counsel. (3) Advise the defendant of the nature of the charges in the charging document, and the allowable penalties, including mandatory penalties, if any.

(4) Conduct a waiver inquiry pursuant to section (b) of this Rule if the defendant indicates a desire to waive counsel. (5) If trial is to be conducted on a subsequent date, advise the defendant that if the defendant appears for trial without counsel, the court could determine that the defendant waived counsel and proceed to trial with the defendant unrepresented by counsel. The clerk shall note compliance with this section in the file or docket. (d) Waiver by inaction — Circuit court.

If a defendant appears in circuit court without counsel on the date set for hearing or trial, indicates a desire to have counsel, and the record shows compliance with section (a) of this Rule, either in a previous appearance in the circuit court or in an appearance in the District Court in a case in which the defendant demanded a jury trial, the court shall permit the defendant to explain the appearance without counsel. If the ³⁴⁸ court finds that there is a meritorious reason for the defendant’s appearance without counsel, the court shall continue the action to a later time and advise the defendant that if counsel does not enter an appearance by that time, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds that there is no meritorious reason for the defendant’s appearance without counsel, the court may determine that the defendant has waived counsel by failing or refusing to obtain counsel and may proceed with the hearing or trial'. Md. Rule 4-215 (2003).

The plain language of the .rule indicates that the court may not find that there has been an effective waiver pursuant to subsection (d) unless the record demonstrates compliance with subsection (a). See Johnson, 355 Md. at 446 , 735 A.2d 1003 (citing Smith v. State, 88 Md.App. 32, 40 , 591 A.2d 902 (1991) (“Rule 4-215 requires the circuit court to comply with Rule 4-215(a) before determining that there has been a waiver by inaction.”)). In addition, the plain language of subsection (a) suggests that its requirements may be satisfied by the district court, rather than the circuit court, where the defendant appears in the district court without counsel and demands a jury trial. The record in this case indicates that appellant originally appeared in the District Court for Cecil County, without counsel, and entered a prayer for a jury trial.

In addition, a bail review form, dated May 11, 2000, and signed by Judge Floyd L. Parks, Jr., indicates through checks on the form that the judge made certain that appellant received a copy of the charging document and that his rights were given by video. A transcript of the videotaped advisement of rights, including a thorough explanation of the right to counsel and the importance of obtaining counsel, as propounded by Judge McKinney, is also included in the record. Two other district court documents, each entitled Bail Review Summary Form, one of which was signed by Judge Parks and the other by appellant, confirm that on May 11, 2000, appellant received a copy of the charging document, was informed of his right to counsel and of the importance of the assistance of counsel, was advised of ³⁴⁹ the nature of the charges and the allowable and mandatory penalties, was advised that his next appearance without counsel could be considered a waiver and was referred to the Public Defender’s Office. The record further indicates that on July 17, 2000, John Henderson, a public defender, filed his appearance on appellant’s behalf in the Circuit Court for Cecil County.

Mr. Henderson’s appearance was struck on December 14, 2000. Richard Boucher, a privately retained defense attorney, entered his appearance on November 17, 2000. On January 16, 2001, Mr. Boucher requested the circuit court’s permission to withdraw his appearance on the basis of a series of conflicts that he had with appellant, including a dispute over a fee agreement. The court granted the motion to withdraw, as well as a continuance, and urged appellant to contact the Public Defender’s Office immediately in order to seek representation.

The court also warned appellant that “if you show up in court the next time this matter is scheduled without counsel, whoever the presiding judge is will in all probability decide that you have waived your rights to counsel and proceed with the trial.” The docket indicates that John Whelan, of the Public Defender’s Office, entered his appearance on behalf of appellant on February 1, 2001. However, on July 5, 2001, the next time appellant appeared in court, Mr. Whelan moved the court to strike his appearance on the grounds that appellant had indicated that he did not want his representation. Mr. Whelan explained that they had had a couple of conversations on the phone, but that he and appellant had never met in person because appellant made numerous appointments but failed to keep them. Appellant told the court that the public defender was “completely indifferent to everything that [he] had spoke to him about [his] case.” The court responded that it was up to the Public Defender’s Office to assign an attorney, and that appellant’s attorney was very capable, but concluded that if appellant was unsatisfied, i.e., did not like him, he should go back to the Public Defender’s Office and work it out with ³⁵⁰ them.

The court granted a postponement, struck the public defender’s appearance, and explained to appellant that this was the last postponement and that the next time a date was set, the case was going to trial. Next, on September 6, 2001, appellant appeared in court again without counsel, and requested that the court appoint a private attorney to represent him. The court granted a postponement because the State had not expected appellant to appear; however, the following exchange occurred between the court and appellant regarding appellant’s need for representation: [The Court]: There are only two possibilities in the state of Maryland. If you qualify for the public defender’s office they will represent you and who was assigned to your case is no choice of yours.

I can only tell you this, if you discharged somebody that was from the local office you made a very bad mistake because the people in our public defender’s office — no insult to the private attorneys in here — have the most experience of any attorney in town in criminal cases or traffic cases. They are in court every day and it doesn’t cost you anything if you qualify. So if you discharged a public defender you made a grievous mistake and it’s too late to correct it now. You probably have the option of going to talk to the public defender for the county, Ms. Murray.

She may reconsider, but she may not. The other option is private attorney retention. I don’t have the money — the court system doesn’t have the money to appoint an attorney for you and pay for that attorney. So the options are public defender or privately-retained attorney.

You do want an attorney, as I understand it? [Appellant]: Absolutely. [The Court]: All right. The charge against you is pretty serious, so you better have representation. In view of the State’s position I’m going to continue this matter. The next time that you appear in- court after you receive your next trial notice if you show up without an attorney the ³⁵¹ trial goes on.

Understood? So either talk to the public defender’s office or get a privately-retained attorney. Understood? [Appellant]: I understand what you are saying. I just — it’s very difficult to comply with — I don’t have any means of retaining counsel. [The Court]: Well, you better go back and see Ms. Murray again and see if she will reconsider her position and assign somebody to you if you, in fact, do not have the assets to afford an attorney.

Finally, on January 17, 2002, the morning of trial, appellant again appeared without counsel and asked the court to assign him counsel. The following colloquy occurred: [The Court]: Well, you did apply and qualified for the public defender and the public defender did enter their appearance for you in July of last year. You came in and you wanted a postponement because you were firing Mike Whelan [sic], who was the public defender, and I told you at that time I granted your motion and I said no more postponements. And I also advised you you’d have to go back to the Public Defender’s Office and work it out with them because, sir, you have the right to apply for a public defender, but you don’t have the right to dictate to them who will represent you.

If you want to fire your attorney, you can do that, but I told you then to go back to the public defender and work it out and you never did. [Appellant]: I have. I’ve called and I’ve called and I’ve gone over there. I’ve written letters to Ms. Murray, who is the executive director of the Public Defender’s Office. [The Court]: I’ve heard nothing from them. All I can tell you, sir, is you can’t tell them who to appoint.

You fired your attorney. I find that you effectively waived your right to an attorney and the case will go to trial. Following the court’s finding that appellant had effectively waived his right to counsel, the court proceeded -with a hearing on appellant’s motion to suppress and then the trial on the merits, with appellant representing himself. ³⁵² Appellant first