Ross v. State

Morton, J., delivered the opinion of the Court. ³⁹⁸ In a jury trial conducted in the Circuit Court for Prince George’s County, appellant, Arthur Ross, Jr., was convicted of felony murder and sentenced to life imprisonment. In this appeal it is first contended that appellant was denied his constitutional right of self-representation. It appears that after the prosecutor had concluded his initial closing argument to the jury, defense counsel advised the trial judge that appellant desired to deliver his own closing argument: "MR. JACOBY [Counsel for Defendant]: Your Honor, Mr. Ross informs me that he might wish to give the closing argument to the jury himself.

THE COURT: Mr. Ross wants to give the closing argument himself? MR. JACOBY: I have advised him against that quite a bit. THE COURT: Okay, Mr. Ross, your attorney is [the] one that’s in charge of that aspect of the litigation.

He’s advised you against it. I suggest you follow his advice. Mr. Jacoby, you’re representing Mr. Ross. Closing arguments are your prerogative.

MR. JACOBY: Thank you, Your Honor.” In Snead v. State, 286 Md. 122, 123 (1979), it was said: "It is now clear that an accused in a criminal prosecution has two independent constitutional rights with regard to the management of his defense. He has both the right to have the assistance of counsel and the right to defend pro se.” According to Snead , once the accused indicates a desire to defend himself the trial judge must engage in a two phase inquiry. "First, the court should ascertain whether the defendant 'clearly and unequivocally’ wants to defend himself.” Id. at 128 .

Once this is established, the court must make appropriate inquiry and be satisfied that "the right to ³⁹⁹ assistance of counsel was competently and intelligently waived by him.” Id. at 131 . Upon an affirmative answer to both questions, the accused is entitled to manage his own defense. See Faretta v. California, 422 U.S. 806 (1975); State v. Renshaw, 276 Md. 259 (1975). The issue addressed in Snead was the right of a defendant to represent himself pro se during the course of the entire trial.

It did not decide the issue presented in this appeal. In fact, the Court specifically stated: "On the facts of the case we here decide, the question whether a defendant may assert the right to self-representation after the trial has begun is not before us, and we do not consider it.” 286 Md. at 132-133, n. 7 . At the outset, we think it significant that the issue was presented to the court by appellant’s trial counsel and that it was framed not as an unequivocal request but simply that appellant "might wish to give the closing argument to the jury himself.” Although appellant was apparently at his counsel’s side during the colloquy with the court, he did not in any way inject himself personally in the proceedings. His conduct at the bench session may well be construed as acquiescence in the trial judge’s determination to have counsel give the closing argument.

We need not, however, determine the issue on whether the appellant waived his right to pursue the issue, for we are convinced that in the factual posture of this case the determination lay within the sound judicial discretion of the trial judge. It is to be noted that in Faretta, Snead, and Renshaw, supra, the request by the accused to represent himself came prior to the beginning of the trial. In the case subjudice, the appellant’s request, if such it can be deemed, came at the very last stage of the trial in which he had been represented throughout by counsel without any semblance of protest, or indication that appellant decided to represent himself. The question of timeliness of a request to proceed without coun ⁴⁰⁰ sel was not decided in Snead, supra, 1 and appears to be an open question in this State.

Those jurisdictions which have addressed the issue generally hold that the right to self-representation must be timely asserted. In United States v. Denno, 348 F.2d 12 , 15 (2nd Cir. 1965), it was said: "The right of a defendant in a criminal case to act as his own lawyer is