Smith v. State

ALPERT, Judge. Unwilling to spend the rest of his life behind bars, appellant Michael Carlton Smith challenges his conviction, inter alia, on the basis that he was denied his right of self-representation. The facts are as follows. On November 19, 1985, appellant was named in a twenty-four count indictment alleging the commission of first and second degree rape, false imprisonment, kidnapping, assault with intent to murder, assault and battery, weapons charges and various other related sexual offenses, all stemming from an alleged attack on Roberta Spann on September 21, 1985.

A motion in limine and various pre-trial motions to suppress physical evidence, statements, and photographic identifications were heard and ruled on by the trial court. In particular, the trial court denied appellant’s motion to represent himself and granted, pursuant to the Maryland Rape Shield Statute, 1 the State’s motion to preclude testimony by the victim concerning her prior sexual conduct. Appellant was tried before a jury in the Circuit Court for Prince George’s County. The State’s case consisted primarily of the testimony of the victim as to the particulars of the incident.

Medical evidence as to the victim’s condition immediately following the incident was admitted in corroboration of her story. In addition, several policemen and a lay witness testified concerning the factual surroundings of the incident and the chain of custody of certain physical evi ¹⁶⁹ dence. At the conclusion of the State’s case, the defense moved for judgment of acquittal, which motion was denied. Counsel for the defense then sought to call the victim, Ms. Spann, as a witness in the presentation of its case.

The State objected and moved to preclude the defense from calling the victim on the basis of the Maryland Rape Shield Statute. The trial court granted the State’s motion. With that, the defense rested, presenting no evidence. The jury found the appellant guilty of three counts of rape, one of kidnapping, one of attempted murder, and two of deadly weapon charges.

The court merged one rape count with the other two. The defense moved for a new trial, which motion was also denied. On September 9, 1986, appellant was sentenced to two consecutive life terms on the rape convictions, thirty years for kidnapping, thirty years for assault with intent to murder, and three years on each of the two weapons charges (all concurrent with the life sentences). Appellant filed a timely appeal and presents the following two questions: 1.

Did the trial court commit error in denying appellant’s request to represent himself at trial? 2. Did the trial court misconstrue and misapply the Maryland Rape Shield Law so as to deny appellant his right to present a defense and to otherwise improperly exclude relevant evidence. We will address each question in turn. I. The Right to Self-representation Appellant first contends that he was denied his Sixth Amendment right to self-representation. 2 A criminal defendant has two mutually exclusive rights under the ¹⁷⁰ Sixth Amendment: the right to effective assistance of counsel and the right to represent himself.

Leonard v. State, 302 Md. 111 , 486 A.2d 163 (1985). The right to self-representation is absolute upon a valid waiver of the right to assistance of counsel. Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975); Leonard, 302 Md. at 119 , 486 A.2d 163 ; Cummings v. Warden, 243 Md. 702 , 703, 221 A.2d 908 (1965); Hamilton v. State, 30 Md.App. 202, 205 , 351 A.2d 153 (1975). When a defendant indicates that he wishes to defend pro se, the court must determine whether he “truly wants to do so.” Faretta, 422 U.S. at 817 , 95 S.Ct. at 2532 ; Snead v. State, 286 Md. 122, 128 , 406 A.2d 98 (1979).

Thus, a two-step judicial inquiry must be made. Colvin v. State, 299 Md. 88, 100 , 472 A.2d 953 (1984); Snead, 286 Md. at 128 , 406 A.2d 98 . The court must first ascertain whether the defendant “clearly and unequivocally” wants to defend himself. Id.

If the court so ascertains, it must then inform the defendant of the benefits of counsel and the dangers of proceeding without counsel and inquire whether the accused “knowingly and intelligently” desires to forgo those benefits. Faretta, 422 U.S. at 821 , 95 S.Ct. at 2534 ; Snead, 286 Md. at 121 , 406 A.2d 98 ; Meyer v. State, 49 Md.App. 300, 306-07 , 431 A.2d 738 , cert. denied, 291 Md. 779 (1981); Hamilton, 30 Md. App. at 204 , 351 A.2d 153 . “The record must show that the defendant was competent to waive the right to counsel and that he knowingly and intelligently has done so after being made aware of the advantages and disadvantages of self-representation.” 3 Snead, 286 Md. at 129 , 406 A.2d 98 , ¹⁷¹ quoting State v. Renshaw, 276 Md. 259, 267 , 347 A.2d 219 (1975) (footnote omitted). See also Thompson v. State, 284 Md. 113, 123 , 394 A.2d 1190 (1978); Hamilton v. State, 30 Md.App. 202, 204 , 351 A.2d 153 (1976). The question of how a court is to measure the validity of each defendant’s waiver of his right to counsel has troubled the judicial system since the Faretta holding was announced by the Supreme Court.

See, e.g., Faretta v. California, 422 U.S. 806, 852 , 95 S.Ct. 2525, 2549 , 45 L.Ed.2d 562 (1975) (Blackmun, J. and Rehnquist, J., dissenting) (many of the questions left unanswered by the majority opinion “such as the standards of waiver ... will haunt the trial of every defendant who elects to exercise his right to self representation”). It is clear, however, that competency to stand trial and competency to make a knowing and intelligent (i.e., a constitutional) waiver of the right to counsel are not necessarily the same. Snead , 286 Md. at ¹⁷² 129 n. 5, 406 A.2d 98 ; Renshaw, 276 Md. at 267 n. 3, 347 A.2d 219 . See also Chapman v. United States, 553 F.2d 886 , 892 n. 10 (5th Cir.1977) and cases cited therein.

Compare United States v. Smith, 778 F.2d 925 , 931 (2nd Cir. 1985) (“waiver of right to counsel under sixth amendment is to be measured by a stricter standard than is a similar waiver under the fifth amendment.”) For example, there may be a situation in which a defendant has the ability to understand the nature of the proceedings against him and assist counsel in his defense, but lacks the mental capacity to waive counsel and represent himself. See United States v. Dougherty, 473 F.2d 1113 , 1123 n. 13 (D.C.App.1972). The validity of a defendant’s waiver of counsel must be determined in light of the facts and circumstances surrounding each case. United States v. Johnson, 659 F.2d 415, 416-17 (4th Cir.1981).

Among factors uniformly considered are the background, experience, age, general capabilities and conduct of the accused. 4 McQueen v. Blackburn, 755 F.2d 1174 (5th Cir.1985); Johnson, 659 F.2d at 417 ; United States v. King, 582 F.2d 888, 890 (4th Cir. 1978). Factors, less uniformly, but also considered include: familiarity with the court system, Cordoba v. Harris, 473 F.Supp. 632, 638 , aff'd, 614 F.2d 1286 (S.D.N.Y.1979), the existence of a history of irrational behavior, and medical opinions regarding the defendant’s mental abilities. Evans v. Raines, 534 F.Supp. 791, 795 (D.Ariz.1982). Compare Stepp v. Estelle, 524 F.2d 447, 453-5 (5th Cir.1975) (attempted suicide alone does not evidence insufficient mental capacity to make knowing and intelligent waiver of right to ¹⁷³ counsel). “Technical legal knowledge, as such, is not relevant to an assessment of an accused’s knowing exercise of his right to defend himself.” Snead, 286 Md. at 129 , 406 A.2d 98 , citing Faretta, 422 U.S. at 836 , 95 S.Ct. at 2541 .

See also United States v. Bennett, 539 F.2d 45, 51 (10th Cir.1976) (court determination that an accused lacks expertise or professional capabilities cannot justify denying the right of self-representation). Compare United States v. Smith, 780 F.2d 810, 812 (9th Cir.1986) (court may not base its denial of a request to proceed pro se on defendant’s inexperience or lack of confidence). Before discussing the application of these factors to the case sub judice, we pause to consider the factual backdrop on which the Faretta decision itself was based. Anthony Faretta was charged with grand theft.

Well before the trial, Faretta requested that he be permitted to represent himself. 5 “Questioning by the judge revealed that Faretta had previously represented himself in a criminal prosecution, that he had a high school education, and that he did not want to be represented by the public defender because he believed that that office was Very loaded down with ... a heavy case load.’ ” 422 U.S. at 807 , 95 S.Ct. at 2527 . The trial judge sua sponte held a hearing to inquire into Faretta’s ability to conduct his own defense. Specifically, he questioned Faretta regarding his knowledge of the hearsay rule and the State law concerning juror selection. 422 U.S. at 808 , 95 S.Ct. at 2527 . On the basis of this inquiry, the judge ruled that Faretta had not made an intelligent and knowing waiver of his right to assistance of counsel, 422 U.S. at 809 , 95 S.Ct. at 2529 .

The judge also concluded that Faretta had no constitutional right to proceed pro se. 422 U.S. at 810 , 95 S.Ct. at 2529 . Accordingly, the judge also ¹⁷⁴ denied Faretta’s requests for leave to act as co-counsel and to make certain motions on his own behalf. The public defender assigned to Faretta conducted the entire defense, at the end of which Faretta was found guilty as charged. The California Court of Appeals affirmed the conviction; the California Supreme Court denied review; the United States Supreme Court granted certiorari. 422 U.S. at 812 , 95 S.Ct. at 2529 .

After reviewing the history of criminal jurisprudence which influenced the framing of the Constitution and the Bill of Rights, the Supreme Court determined that “[t]he right of self-representation finds support in the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged.” 422 U.S. at 818 , 95 S.Ct. at 2532 . Although the court recognized that it may be to the defendant’s disadvantage to forgo the assistance of a lawyer, the court determined that “the colonists and the framers, as well as their English ancestors, always conceived of the right to counsel as an ‘assistance’ for the accused, to be used at his option, in defending himself.” 422 U.S. at 832 , 95 S.Ct. at 2539 . The court explained: [I]t is one thing to hold that every defendant, rich or poor, has the right to the assistance of counsel, and quite another to say that a State may compel a defendant to accept a lawyer he does not want. The value of state-appointed counsel was not unappreciated by the Founders, yet the notion of compulsory counsel was utterly foreign to them.

And whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice. It is undeniable that in most criminal prosecutions defendants could better defend with counsel’s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer’s training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to ¹⁷⁵ believe that the law contrives against him.

Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction.

It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.” Illinois v. Allen, 397 U.S. 337, 350-51 [ 90 S.Ct. 1057, 1064 ] 25 L.Ed.2d 353 (Brennan, J., concurring). Id. at 833-34, 95 S.Ct. at 2540-41 . Applying these principles, the Supreme Court held that Faretta had been unconstitutionally denied his right to self-representation.

Id. at 835-6 , 95 S.Ct. at 2541 . Faretta had clearly and unequivocally declared to the trial judge that he did not want counsel, but wanted to represent himself. The record affirmatively showed “that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will.” Id. at 835 , 95 S.Ct. at 2541 . Moreover, the trial judge had warned Faretta of the hazards of forgoing counsel and that he would be required to follow the standard rules of trial procedure.

The Supreme Court stated, in concluding, that: We need make no assessment of how well or poorly Faretta had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire. For his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself. In forcing Faretta, under these circumstances, to accept against his will a state-appointed public defender, the ¹⁷⁶ California courts deprived him of his constitutional right to conduct his own defense. Id. at 836 , 95 S.Ct. at 2541 .

In the case sub judice, the defendant clearly and unequivocably asserted his right to self representation. 6 See Leonard, 302 Md. at 124 , 486 A.2d 163 . Thus, the first step of the Snead inquiry was satisfied and the trial judge properly began to determine whether the defendant was capable of making a knowing and intelligent waiver of the right to counsel. The judge asked appellant about his educational background; whether he knew the nature of the charges against him and the allowable penalties for those charges; whether he was informed of his right to have an attorney and why he wanted to proceed pro se. Appellant indicated that he had earned a G.E.D. and completed two years of college.

He said that, “I read on an 8.4 reading level. I have read a lot of law.” He acknowledged having been advised of the charges against him, as well as the potential penalties he faced. He also acknowledged having been informed of his right to have an attorney. When asked why he did not want to use his court-appointed attorney, appellant clearly and lucidly articulated his reasons: THE COURT: You have assisted [the public defender] with the preparation of your trial? ¹⁷⁷ MR.

SMITH: I have cooperated with him. We are not— this hasn’t been prepared the way I asked, not in the beginning, not now. THE COURT: You want him to pursue the insanity defense; is that correct? MR.

SMITH: Yes, ma’am. THE COURT: He has apparently decided not to pursue the insanity defense. MR. SMITH: Therefore, he is not acting in my best interest.

THE COURT: Not necessarily. MR. SMITH: What I want to say about the extension without confessing anything is that I would — what I need to have time for and the defense I plan on putting on — I would be willing to waive any future rights to question Ms. Spann on anything she said or any statements in the State’s case and accept for them to enter a deposition from her at the time that this thing comes to trial. I have no intention of doing more harm to that woman by asking her a lot of questions, and I am not going to challenge what she says.

I am basing my defense and I believe there was sufficient time. There were some letters I have sent to Johns Hopkins. I believe within 90 days I can have this defense. It is entirely medical.

I have a medical problem. It shows up in X-rays and I have been taking medicine for it for years. That relieves me of the ability to control myself. That is going to be my defense.

I need time to get the necessary documentation for that together to present to this Court. Other than that, they do what they want to do. They are doing it against my wishes. They are not acting in my best interest as far as I am concerned.

After eliciting the State’s response to appellant’s request for a continuance, 7 the trial judge quizzed appellant on his ¹⁷⁸ knowledge of certain evidentiary concepts. 8 The court then asked the appointed public defender why he chose not to pursue appellant’s defense strategy. 9 Whereupon the court made the following ruling: THE COURT: Mr. Smith, you do have a right to represent yourself. There is no question about that. It is a very dangerous thing to do, and a judge has to make an indepth inquiry about your ability to do that. You have ¹⁷⁹ to know when to object, when evidence is inadmissible.

You have to know the rules of opening and closing arguments. I don’t feel that you have had enough education or experience to do that. If I were to permit you to represent yourself, I don’t think that you would have the wherewithal to know how to request motions for appropriate relief, to obtain orders for independent psychiatric evaluations or medical evaluations. They have already been done in the case.

I would have to also take into consideration a continuance, granting a continuance that the State is hard pressed to get its witness back. It is critical and essential in this case. That witness is leaving the country. I feel that Mr. Buchheister’s appearance has been in here since December 13 of 1985.

He was assigned to the case. He has been working the case. He has indicated to the Court that he has made a tactical decision and the Court cannot question his tactical decisions. He does have alternate defenses.

I feel that in the best interest of justice, the Court will have to deny your request to represent yourself. All right. Any other preliminary matters before we bring the jury in? MR.

BUCHHEISTER: Your Honor, you made a finding that Mr. Smith has a — that I am going to represent him? THE COURT: You are going to represent him. I denied his motion to allow him to represent himself. Defendants have the right to waive counsel.

That is clear by the law and by our rules. He has made a motion to waive counsel and to represent himself. I have denied that motion. MR.

BUCHHEISTER: It was just my understanding of the law — and I am certainly not an expert on it — that he has an absolute right to represent himself. THE COURT: There have been some Supreme Court cases that have upheld a person’s right to represent himself, but we can talk about that later. ¹⁸⁰ Considering the facts and circumstances of this case, we hold that the trial court’s denial of appellant’s request to represent himself was erroneous. Faretta and its progeny clearly state that, although a judge must make an inquiry into the defendant’s ability to make a knowing and intelligent waiver of the right to counsel, an assessment of the defendant’s “technical legal knowledge ... [is] not relevant to an assessment of his knowing exercise of his right to defend himself.” 422 U.S. at 536 , 95 S.Ct. at 2541 ; Snead, 286 Md. at 129 , 406 A.2d 98 . Although the trial judge, in the case sub judice, indicated that she did not believe Mr. Smith was capable of making a knowing and intelligent waiver of his right to counsel, she couched her reasons for so finding in terms of his ability to carry out an effective defense.

This is an improper consideration in assessing the defendant’s right to defend himself. For purpose of determining whether an accused should be permitted to represent himself, the only relevant inquiry is his ability to make a knowing and intelligent waiver. The defendant’s ability to carry out an effective defense is completely irrelevant to his ability to make an effective waiver, and is an improper consideration in the judge’s determination whether to allow the defendant to proceed pro se. United States v. Bennett, 539 F.2d 45 (10th Cir. 1976), cert. denied, 429 U.S. 925 , 97 S.Ct. 327 , 50 L.Ed.2d 293 (1977).

As Justice Blackmun said in criticism of the Faretta decision: If there is any truth to the old proverb that “[o]ne who is his own lawyer has a fool for a client,” the Court by its opinion today now bestows a constitutional right on one to make a fool of himself. 422 U.S. at 852 , 95 S.Ct. at 2549 (Blackmun, J., dissenting). We hold that the trial court erred in denying appellant his constitutional right to self-representation. 10 ¹⁸¹ II. Rape Shield Statute Appellant next argues that the trial court erred in its interpretation of the Rape Shield Statute and its application to the case sub judice. After the close of the State’s case, appellant attempted to call the prosecutrix to the stand.

The State moved to preclude any testimony concerning the victim’s prior sexual conduct. Appellant asserted that such testimony was necessary to explain the source of the semen. The trial court granted the State’s motion and precluded the testimony. Appellant, therefore, rested without offering any further evidence, 11 and contends, on appeal, that “[t]his action by the trial court [in precluding the testimony] was prejudicial error of constitutional magnitude depriving the appellant of his right to due process of law under the 14th Amendment to the United States Constitution.” We disagree and explain as follows: The Maryland Rape Shield law states, in pertinent part: (a) Evidence relating to victim’s chastity. — Evidence relating to a victim’s reputation for chastity and opinion evidence relating to a victim’s chastity are not admissible in any prosecution for commission of a rape or sexual offense in the first or second degree.

Evidence of specific instances of the victim’s prior sexual conduct may be admitted only if the judge finds the evidence is relevant and is material to a fact in issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value, and if the evidence is: (1) Evidence of the victim’s past sexual conduct with the defendant; or ¹⁸² (2) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or trauma; or (3) Evidence which supports a claim that the victim has an ulterior motive in accusing the defendant of the crime; or (4) Evidence offered for the purpose of impeachment when the prosecutor puts the victim’s prior sexual conduct in issue. Md.Ann.Code art. 27, § 461A (1982) (emphasis added). The statute, thus, places three conditions upon the admissibility of evidence of the victim’s prior sexual conduct: (1) the evidence must be relevant and material to an issue in the case, (2) the prejudicial nature of the evidence must not outweigh its probative value, and (3) the evidence must fall within one of the four statutorily enumerated categories. Joyce v. State, 59 Md.App. 237, 246 , 474 A.2d 1369 (1984).

In evaluating these three conditions, decisions on the relevance or inflammatory nature of the evidence rest in the sound discretion of the trial court and will not be reversed on appeal absent a showing that such discretion was clearly erroneous. Thomas v. State, 301 Md. 294, 317 , 483 A.2d 6 (1984); Testerman v. State, 61 Md.App. 257, 265 , 486 A.2d 233 (1985). Under the facts and circumstances of this case, we do not think that the trial court’s decision amounts to an abuse of discretion. In a pre-trial motion, the trial court ruled and