Pinkney v. State

WATTS, J. Appellant, Jerome Pinkney, was charged in the District Court of Maryland for Baltimore City with second-degree assault, resisting arrest, and disorderly conduct. See Md. Code Ann., Crim. Law (“C.L.”) § 3-203 (assault in the second degree); C.L. § 9-408(b) (resisting arrest); and C.L. § 10-201(c)(2) (disorderly conduct). The case was transferred to the Circuit Court for Baltimore City following appellant’s request for a jury trial.

Prior to trial in the circuit court, appellant filed a motion to discharge his lawyer. The court denied the motion without prejudice and held that appellant could renew the motion at trial. On the first day of trial, prior to jury selection, appellant renewed the motion to discharge his attorney. The trial judge denied the motion.

The jury convicted appellant of second-degree assault. 1 Appellant was sentenced to eighteen months of imprisonment, with credit for time served. Appellant noted a timely appeal and presented the following questions for review, which we quote: I. When the trial judge found that the Appellant had not presented meritorious reasons for his request to discharge counsel and that Appellant was therefore not entitled to the appointment of new counsel, did he violate Maryland Rule 4-215(e) in failing to inform the Appellant that he could nonetheless discharge his counsel and proceed pro se if he chose?

II

Did the trial judge abuse his discretion in failing to give a missing witness instruction? ⁵⁶⁶ For the following reasons, we answer both questions in the negative and shall affirm. FACTUAL AND PROCEDURAL BACKGROUND On July 29, 2009, at approximately 5:05 p.m., Detective Austin Sailor, of the Baltimore City Police Department, was working in plain clothes capacity in an unmarked vehicle near the 2300 block of Harford Road in Baltimore City, Maryland. Detective Sailor was traveling with two other detectives northbound on Harford Road and made a left turn onto Cliftview Avenue. At that time, Detective Sailor saw approximately seven to eight people standing near the intersection of Har-ford Road and Cliftview Avenue.

Detective Sailor testified, as follows, as to his observations of the group: At that point, while watching the group of people I observed that some green currency from somewhere began flying in the air. I observed an African American female bend down to pick up someone’s currency. At that time, the gentleman stood up in front of that female, yelled, give him that money. The female stood up and I observed the male strike her in the face with the left hand.

(Emphasis added). Detective Sailor identified appellant in court as the person who struck the female. Detective Sailor testified that at the time of the incident, appellant was “[v]ery angry[,] [v]ery aggressive.” Detective Sailor described the incident, stating that appellant was “significantly larger” than the female, and testified that he “observed the Defendant take a boxer’s type stance. He pulled back 'with his left hand, popped back and struck her with an overhand left to the right-side of the jaw.” The female fell to the ground after being struck.

Detective Sailor saw the woman crying and holding her jaw with her right hand. He observed scratches and bruising on her face. Detective Sailor testified that the female declined medical treatment. Detective Sailor testified that when being placed under arrest, appellant struggled, and it took three detectives to place him on the ground, handcuff and arrest him. ⁵⁶⁷ Detective Chris Merino of the Baltimore City Police Department, who was riding with Detective Sailor on July 29, 2009, corroborated Detective Sailor’s account of the incident.

Detective Merino testified that as they turned the corner onto Cliftview Avenue, he heard shouting, saw appellant “[a]ngry” and “[u]pset,” and heard him say “give him that money.” Detective Merino testified that appellant was facing a female at the time, and within less than a minute, Detective Merino saw appellant “strike the female in front of him.” Detective Merino testified that appellant hit the female in the mouth area with a closed fist. Detective Merino stated that when he and two other detectives went to place appellant under arrest, appellant “became a little tense, he tensed up, kind of resisted a little bit[,]” and the three detectives were able to handcuff him and place him under arrest. Appellant testified on his own behalf that, on the date and time in question, he had just finished work and was standing at the bus stop on Harford Road when “[pjolice come up and grabbed [him].” Appellant testified that the officers asked him for identification and he showed them his identification as well as a green parole card. 2 Appellant testified that at that point, he was arrested. Appellant testified that the police officers claimed he had robbed someone.

Additional facts will be set forth below as necessary to resolve the questions presented. DISCUSSION I. In a letter addressed to the trial court prior to trial, appellant moved to dismiss his attorney. Appellant alleged that his attorney was conspiring with the prosecutor and was not properly defending him. The trial court denied the motion, but indicated that on the day of trial, appellant could ⁵⁶⁸ renew the motion.

On the day of trial, appellant’s counsel renewed the request and the following exchange occurred: [PROSECUTOR]: State of Maryland vs. Jerome Pinkney, 809247030. Lauren Polk for the State. [DEFENSE COUNSEL]: Brandon Thornton, Your Honor. Mr. Pinkney is here, and we’re at a point where Mr. Pinkney is petitioning the court to discharge the service of the Public Defender. Your Honor, he is not speaking to me and he does not wish to stand with me at the trial table.

THE COURT: All right. Mr. Pinkney, you need to stand at the trial table, because your case has been called whether Mr. Thornton is representing you or not. [PROSECUTOR]: State’s ready, Your Honor. THE COURT: Now, very quickly Mr. Pinkney. What’s the problem with Mr. Thornton in your eyes?

THE DEFENDANT: Huh? THE COURT: What problem do you have with Mr. Thornton representing you? THE DEFENDANT: I don’t want him to represent me. I asked him something last time.

You asked me, what did I say? He said, nothing, like you know. THE COURT: Have you hired an attorney, Mr. Pinkney? THE DEFENDANT: No. THE COURT: All right.

Well, Mr. Thornton is the attorney you had from the Public Defender’s Office. Are you able to talk with him about your case? THE DEFENDANT: Two minutes ain’t ample time to talk to nobody about no case. The only time I’ve seen him is when I come in here.

He talked to me for about two minutes. THE COURT: All right. Mr. Thornton, have you had time to prepare for trial in this case? [DEFENSE COUNSEL]: Your Honor, we don’t have any witnesses. It is what it is.

THE COURT: Have you reviewed what the State has in discovery? ⁵⁶⁹ [DEFENSE COUNSEL]: Yes. THE COURT: Mr. Pinkney, are there any witnesses to this event that you’ve identified? THE DEFENDANT: What do you mean? THE COURT: Have you identified any witnesses to this alleged event?

THE DEFENDANT: On my behalf? THE COURT: Yeah, beside from you obviously. Have you identified anyone who might serve as a witness in this case? THE DEFENDANT: No. I haven’t had nobody been here (inaudible).

THE COURT: In this situation, Mr. Pinkney, there isn’t a whole lot to prepare for the case, beside from being familiar with the police reports, for Mr. Thornton to be ready to cross examine the officers and then to talk with you; and I don’t want you to say anything about the incident. But, to talk with you about your version of the events and whether there’s a possibility that you’re going to testify in the case. But, there’s not a whole lot to prepare in the case other than that. You’ve written me a letter that says, you think that Mr. Thornton is working with the State, but I don’t understand what the basis for that would be.

I see Mr. Thornton frequently. He tries cases before me. He does so very ably. I don’t understand what the issue is with Mr. Thornton.

THE DEFENDANT: He got a motion — he filed for motion of discovery. He thinks it’s going to take — he gets the State burden and wants the discovery. He never gave no pretrial investigation of the crime scene, no. (Inaudible.) THE COURT: There is no — if there are no other witnesses, there’s nothing to investigate.

THE DEFENDANT: It’s a (inaudible) somebody was here. He never went to see — to talk to the person who was there that I took a hit of (inaudible). ⁵⁷⁰ THE COURT: All right. I’m not satisfied that there’s any basis for you to discharge Mr. Thornton as your Counsel. He’s assigned by the Public Defender’s Office and that’s the — a very capable attorney that you got to represent you in this case.

Counsel, is this case ready for trial? Appellant contends that the trial court erred under Md. Rule 4-215(e) by failing to inform him that he could discharge his counsel and proceed pro se. Recognizing that the trial court “gave [him] an opportunity to air his grievances with respect to his assigned counsel,” appellant contends that the trial court erred by failing to give him “the option of representing himself after ensuring that [he had] been advised of the pitfalls of self-representation.” In contrast, the State responds that the trial court properly complied with Md. Rule 4-215(e) and that, “[u]nder the facts of this case, the trial court was not required to advise [appellant] of the right to proceed pro se.” We agree. In this case, appellant does not dispute that he was given an opportunity to explain the reasons he wanted to discharge his attorney.

Instead, appellant’s primary contention is that, after the trial judge found those reasons to be unmeritorious, the trial judge was required to inform him that he could discharge counsel and proceed pro se. In disagreement "with appellant, we conclude that Md. Rule 4-215(e) does not require that a trial judge advise a defendant of the option of proceeding pro se. A defendant in a criminal prosecution has a constitutional right to the effective assistance of counsel and the corresponding right to reject that assistance and represent himself. Gonzales v. State, 408 Md. 515, 529-30 , 970 A.2d 908 (2009).

As the Court of Appeals has stated, “the Sixth Amendment to the United States Constitution grants the accused not only the right to be represented by counsel, but also the right to make his own defense without the assistance of counsel.” Gregg v. State, 377 Md. 515, 548 , 833 A.2d 1040 (2003) (footnote omitted) (emphasis in original) (citing Faretta v. California, 422 U.S. 806, 819 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 ⁵⁷¹ (1975)); accord State v. Campbell, 385 Md. 616, 626-27 , 870 A.2d 217 (2005). As to the implementation and protection of the right to counsel, Md. Rule 4-215(e) provides as follows: 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)[ 3 ] of this Rule if the docket or file does not reflect prior compliance. (Footnote added). “When interpreting the Maryland Rules, we look to the ordinary rules of statutory construction.” King v. State, ⁵⁷² 407 Md. 682, 698 , 967 A.2d 790 (2009) (citation omitted). The plain language of Md. Rule 4-215(e) imposes upon the trial court the responsibility not to permit discharge of counsel unless the defendant is informed of the possibility that trial will proceed with the defendant unrepresented by counsel. Where a trial court finds no meritorious reason for the requested discharge of counsel and does not permit the discharge, Md. Rule 4-215(e) does not impose an obligation on the trial court to inform the defendant of the option to proceed pro se.

Md. Rule 4-215(e) states if the court finds no meritorious reason for the defendant’s request, the court may not permit the discharge of counsel without advising that the trial will proceed with the defendant unrepresented. If the court permits the defendant to discharge counsel, it shall comply with subsections (a)(l)-(4) of Md. Rule 4-215. Md. Rule 4-215(a)(4) provides that the court shall conduct an inquiry under section (b) 4 if the defendant indicates a desire to waive counsel. Thus, where the trial court finds no meritorious reason for the defendant’s request and does not permit discharge of counsel, under a plain reading of Md. Rule 4-215(e), there is no requirement that the trial court advise the defendant of the right to proceed pro se.

In Gonzales, 408 Md. at 531-32 , 970 A.2d 908 , the Court of Appeals analyzed Md. Rule 4-215 and stated as follows: ⁵⁷³ 582 A.2d 803, 806 (1990) (“Allowing a defendant to specify the reasons for his request is an integral part of the Rule and cannot be dismissed as insignificant.”). Next, the trial court must make a determination about whether the defendant’s desire to discharge counsel is meritorious. Moore v. State, 331 Md. 179, 186-87 , 626 A.2d 968, 971-72 (1993) (indicating that the record must be sufficient to reflect that the trial court actually considered the merit of the defendant’s explanation for wanting to proceed without counsel); Hawkins v. State, 130 Md.App. 679, 687 , 747 A.2d 759, 764 (2000) (holding that a judge did not comply with the dictates of Maryland Rule 4-215(e) when the judge did not “ask the defendant why he wishfed] to discharge counsel, give careful consideration to the defendant’s explanation, and then rule whether the explanation offered [was] meritorious”). Finally, as we explained in Williams v. State, supra: ⁵⁷² Under the Rule, when a defendant requests permission to discharge an attorney whose appearance has been entered in his or her case, the court must provide the defendant an opportunity to explain why the defendant wishes to discharge that attorney.

Williams v. State, 321 Md. 266, 273 , ⁵⁷³ Where the trial judge finds a defendant’s reasons to be meritorious, he must grant the request and, if necessary, give the defendant an opportunity to retain new counsel. When a defendant makes an unmeritorious request to discharge counsel, the trial judge 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. 321 Md. 266, 273 , 582 A.2d 803, 806 (1990). Prior to Gonzales , the Court of Appeals explained in State v. Brown, 342 Md. 404, 425 , 676 A.2d 513 (1996): If the reason is meritorious, the court must permit dismissal, continue the case if necessary, and warn the defendant that he or she may be required to proceed pro se if new counsel is not engaged by the next trial date. If the reason for dismissal is not meritorious, however, the court must engage in a third-level inquiry.

The court may still permit dismissal of counsel, but only after warning the defendant of ⁵⁷⁴ the possibility he or she will proceed pro se if substitute counsel is not secured. The court may also reject the defendant’s request to dismiss counsel if the reason is not meritorious. (Emphasis added.) In light of the Court’s comment in Williams, 321 Md.