State v. Brown

RAKER, Judge. In this case, we are asked to determine whether Maryland Rule 4-215, which outlines the procedures a trial court must follow when a defendant elects to discharge counsel, applies to decisions to dismiss counsel made after the trial has begun. We shall hold that the Rule does not apply after trial proceedings have commenced. I. On October 26, 1993, two undercover police officers purchased $20 worth of crack cocaine from a person they later identified as Respondent, Shawn L. Brown.

The transaction was videotaped. On November 12, 1993, the officers purchased another $20 worth of crack cocaine from Brown. Following the second sale, Brown was arrested. He was indicted in the Circuit Court for Wicomico County on two counts of distribution of a controlled dangerous substance in violation of Maryland Code (1957, 1992 Repl.Vol., 1995 Cum.Supp.) Article ⁴¹⁰ 27, § 286, and two counts of possession of a controlled dangerous substance in violation of Maryland Code (1957, 1992 Repl.Vol., 1995 Supp.) Article 27, § 287.

Brown waived his right to a jury and was tried before the court on April 13, 1994. At the beginning of the proceedings, Respondent’s counsel requested a continuance, and advised the court that because he had only been engaged four days before trial, he had insufficient time to prepare. The State objected to the continuance, arguing that only a few days earlier, Respondent’s counsel had indicated he would be ready to go to trial as scheduled. The judge denied the continuance. 1 The State called its first witness, but before questioning began, Respondent interrupted to request a jury trial.

The court denied the request because Respondent had previously waived his right to jury trial. The State then proceeded to examine the witness. Before the State completed the direct examination of the first witness, Respondent’s counsel indicated that his client wished to discharge him. The judge inquired about the reason for the dismissal, and Respondent’s counsel suggested that the decision was based on his client’s father’s advice.

Respondent did not comment, but his father interjected that counsel was unfamiliar with the case. The judge did not permit Respondent to discharge his counsel. See infra Section V. The State presented evidence including testimony from the two officers involved in the transaction, the videotape of the transaction, and the crack cocaine. The defense argued mistaken identity, pointing to the fact that the person in the police videotape was clean-shaven, while Respondent had a full beard.

Respondent testified that he had grown the beard before the first drug sale. ⁴¹¹ Respondent was convicted on all four counts. At sentencing, Respondent was represented by the same counsel as at trial. Respondent was sentenced to two consecutive terms of ten-year incarceration for the drug distribution charges. The possession convictions were merged for purposes of sentencing.

Respondent noted a timely appeal to the Court of Special Appeals. The intermediate appellate court reversed the judgment of the trial court, holding that the trial judge failed to apply the procedures mandated by Rule 4-215(e) to determine whether Respondent should be allowed to discharge his counsel. Brown v. State, 103 Md.App. 740 , 654 A.2d 944 (1995). We granted the State’s petition for certiorari to answer two questions: Did the Court of Special Appeals err in holding: (1) that Maryland Rule 4-215 is applicable once trial has commenced; and (2) that the trial court did not properly comply with subsection (e) of the Rule in this case?

II

The State contends that Rule 4-215 does not apply once trial begins. The State argues that Rule 4-215(e) applies only to efforts to discharge counsel made prior to trial or at the beginning of the trial. Respondent did not indicate a desire to discharge his counsel until the State had commenced its casein-chief. Therefore, the State argues that Rule 4-215(e) did not apply.

Alternatively, the State argues that even if Rule 4-215(e) applied, the trial court’s inquiry sufficed to meet the requirements of the Rule. Respondent contends that Rule 4-215(e) applies to all decisions to discharge counsel, regardless of when they are made. Therefore, Respondent argues, the trial court was required to satisfy the procedural requirements of 4-215(e). In the alternative, Respondent maintains that even if the formal requirements of Rule 4-215(e) did not apply, the trial court abused its discretion by failing to identify and consider the reason Re ⁴¹² spondent wished to discharge his counsel before deciding not to allow the dismissal.

III

In this case, we must consider the interplay between two constitutional rights and the procedural rule that is designed to implement those rights. Maryland Rule 4-215 is designed to protect both the right to assistance of counsel and the right to pro se defense provided by the Sixth Amendment. 2 Leonard v. State, 302 Md. 111, 121-22 , 486 A.2d 163, 168 (1985). As we shall explain infra, once meaningful trial proceedings have begun, the right to substitute counsel and the right to defend pro se are curtailed to prevent undue interference with the administration of justice. Fowlkes v. State, 311 Md. 586, 605-06 , 536 A.2d 1149, 1159 (1988).

Thus, once trial begins, exercise of these rights is subject to the trial court’s discretion. Rule 4-215 is designed to ensure that courts comply with constitutional requirements in advising defendants of the Sixth Amendment right to counsel. The Rule is not intended to deprive the courts of discretion regarding motions to discharge counsel after trial has commenced. We therefore conclude that the Rule is inapposite once trial is underway.

We explain. A. Constitutional Implications of Defendant’s Dismissal of Counsel A defendant’s request to dismiss appointed counsel implicates two rights that are fundamental to our system of criminal justice: the defendant’s right to counsel, and the ⁴¹³ defendant’s right to self-representation. See Moten v. State, 339 Md. 407 , 663 A.2d 593 (1995); Parren v. State, 309 Md. 260 , 523 A.2d 597 (1987); Snead v. State, 286 Md. 122 , 406 A.2d 98 (1979). See also McKaskle v. Wiggins, 465 U.S. 168 , 104 S.Ct. 944 , 79 L.Ed.2d 122 (1984); Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975); Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963).

When a defendant indicates a desire to dismiss counsel, the defendant must request permission to obtain substitute counsel or to proceed pro se. The trial court’s subsequent procedures depend on whether the defendant requests substitute counsel or self-representation. (“[I]t is the relief requested (self-representation) and not the reasons underlying the motion (dissatisfaction with counsel) which governs the trial court’s responsibilities when considering such motions.”). If the defendant requests dismissal of counsel in order to obtain substitute counsel, the court must afford the defendant an opportunity to explain the reasons for the proposed dismissal.

See United States v. Allen, 789 F.2d 90, 92 (1st Cir.1986), cert. denied, 479 U.S. 846 , 107 S.Ct. 164 , 93 L.Ed.2d 103 (1986); United States v. Welty, 674 F.2d 185, 190 (3d Cir.1982). While an indigent defendant is entitled to appointed counsel, the defendant is not entitled to choose a specific attorney. See Fowlkes, 311 Md. at 605-06 , 536 A.2d at 1159 ; cf. Grandison v. State, 341 Md. 175, 199-204 , 670 A.2d 398, 410-11 (1995). Instead, the defendant is entitled to the effective assistance of counsel, and may only obtain substitute counsel for “good cause.” 3 See Fowlkes, 311 Md. at 605-06 , 536 A.2d at 1159 .

See also United States v. Gallop, 838 F.2d 105, 108 (4th Cir.1988), cert. denied, 487 U.S. 1211 , 108 S.Ct. 2858 , 101 L.Ed.2d 895 (1988); Allen, 789 F.2d at 92 . ⁴¹⁴ If the defendant requests dismissal of counsel in order to proceed pro se, and if the proposal to discharge counsel is timely and unequivocal, the court must ordinarily grant the request. Faretta, 422 U.S. at 833-34 , 95 S.Ct. at 2540-41 . By choosing self-representation, the defendant forgoes the right to counsel. Therefore, the court must conduct a waiver inquiry to ensure that any decision to waive the right to counsel is “made with eyes open.” Id. at 835 , 95 S.Ct. at 2541 (quoting Adams v. United States ex rel.

McCann, 317 U.S. 269, 279 , 63 S.Ct. 236, 242 , 87 L.Ed. 268 (1943)). The Sixth Amendment requires that the defendant’s waiver of the right to counsel must be “knowing and intelligent.” Johnson v. Zerbst, 304 U.S. 458, 464-65 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938). See also 1 American Bar Ass’n, ABA Standards on Criminal Justice 6-38 to 6-41 (2d ed. 1986) (Special Functions of the Trial Judge Standard 6-3.6, Defendant’s Election to Represent Himself or Herself at Trial). Although courts have recognized several exceptions to the Faretta rule, these exceptions have been narrowly construed to effectuate the defendant’s right to self-representation.

Cf. Leonard, 302 Md. at 127 , 486 A.2d at 171 . Absent a recognized exception, refusal to grant a timely, unequivocal request for self-representation is reversible error. See Snead, 286 Md. at 130 , 406 A.2d at 102 .

See also McKaskle, 465 U.S. at 177 n. 8, 104 S.Ct. at 950 n. 8; People v. Davis, 49 N.Y.2d 114 , 424 N.Y.S.2d 372, 375-76 , 400 N.E.2d 313, 317 (1979). B. Limitation of the Right to Dismiss Counsel After Trial Begins While we have recognized the importance of the right to dismiss counsel, we have also concluded that at some point after trial begins, the right to defend pro se and the right to obtain substitute counsel must be limited to prevent undue interference with the administration of justice. Fowlkes, 311 Md. at 605 , 536 A.2d at 1159 . See also United States v. Dunlap, 577 F.2d 867, 868 (4th Cir.1978), cert. denied, 439 U.S. 858 , 99 S.Ct. 174 , 58 L.Ed.2d 166 (1978).

In the absence of such a limitation, defendants could use “eleventh hour” ⁴¹⁵ requests to discharge counsel as a tactic to delay the proceedings or to confuse the jury. See, e.g., State v. Sheppard, 172 W.Va. 656 , 310 S.E.2d 173, 187 (1983); Dunlap, 577 F.2d at 868-69 . In order to justify substitution of counsel after trial begins, the defendant must demonstrate good cause. McKee v. Harris, 649 F.2d 927, 931 (2d Cir.1981), cert. denied, 456 U.S. 917 , 102 S.Ct. 1773 , 72 L.Ed.2d 177 (1982) (good cause may include a “conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict.”).

See also Fowlkes, 311 Md. at 605-06 , 536 A.2d at 1159 . The decision whether to permit mid-trial substitution of counsel is left to the trial court’s discretion. See Commonwealth v. Chavis, 415 Mass. 703 , 616 N.E.2d 423, 428 (1993); Commonwealth v. Miskel, 364 Mass. 783 , 308 N.E.2d 547, 552 (1974). As the Massachusetts Supreme Judicial Court has stated: It is now well established by decisions of this court and of the [fjederal courts that a defendant’s freedom to change his counsel is restricted on the commencement of trial. “Once the trial had begun, the effectiveness of any right of the defendant to force a change of counsel was diminished....

Thereafter any prejudice to his interests was to be balanced with the foreseeable effect upon the trial already in progress. Upon this issue the decision must be largely within the discretion of the trial judge[.]” Miskel, 308 N.E.2d at 552 (citations omitted) (quoting Lamoureux v. Commonwealth, 353 Mass. 556 , 233 N.E.2d 741, 744 (1968)). See also United States v. Michelson, 559 F.2d 567, 572 (9th Cir.1977); United States v. Price, 474 F.2d 1223, 1227 (9th Cir.1973); United States ex rel. Maldonado v. Denno, 348 F.2d 12 , 15 (2d Cir.1965), cert. denied, 384 U.S. 1007 , 86 S.Ct. 1950 , 16 L.Ed.2d 1020 (1966); State v. LaBare, 637 A.2d 854, 855 (Me.1994); State v. Robinson, 227 Conn. 711 , 631 A.2d 288, 297 (1993); State v. Ronne, 458 N.W.2d 294, 299-300 (N.D.1990); Garris v. United States, 465 A.2d 817, 820 (D.C. 1983), cert. denied, 465 U.S. 1012 , 104 S.Ct. 1013 , 79 L.Ed.2d ⁴¹⁶ 243 (1984); Swinehart v. State, 268 Ind. 460 , 376 N.E.2d 486, 490 (1978); State v. Heaps, 87 Or.App. 489 , 742 P.2d 1188, 1189 (1987).

If the court concludes that the defendant’s request to dismiss counsel was “not made in good faith but [was] a transparent ploy for delay,” the court may exercise its discretion to deny the request. Morris v. Slappy, 461 U.S. 1, 13 , 103 S.Ct. 1610, 1617 , 75 L.Ed.2d 610 (1983). Furthermore, tactical disagreements short of a total breakdown in communication between attorney and client generally do not warrant mid-trial substitution of counsel. See Miskel, 308 N.E.2d at 552 ; see also Morris, 461 U.S. at 13 , 103 S.Ct. at 1617 (rejecting the view that the defendant is entitled to a “meaningful attorney-client relationship”). 4 Frequently, denial of a defendant’s request for substitute counsel leads to a request to defend pro se. 5 See, ⁴¹⁷ e.g., Snead, 286 Md. at 126 , 406 A.2d at 100 ; see also Taylor v. State, 557 So.2d 138, 140 (Fla.Dist.Ct.App.1990).

Although the request to proceed pro se ordinarily should be granted if asserted unequivocally before trial, the right to proceed pro se is limited after trial has begun. See, e.g., Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir.1990), cert. denied, 499 U.S. 982 , 111 S.Ct. 1639 , 113 L.Ed.2d 734 (1991); United States v. Lawrence, 605 F.2d 1321, 1324 (4th Cir.1979), cert. denied, 444 U.S. 1084 , 100 S.Ct. 1041 , 62 L.Ed.2d 770 (1980); Sapienza v. Vincent, 534 F.2d 1007, 1010 (2d Cir.1976); People v. Windham, 19 Cal.3d 121 , 137 Cal.Rptr. 8 , 560 P.2d 1187, 1190-91 (1977). For example, as the Fourth Circuit stated in Bassette v. Thompson, 915 F.2d 932 (4th Cir.1990), cert. denied, 499 U.S. 982 , 111 S.Ct. 1639 , 113 L.Ed.2d 734 (1991): Although under ... the Sixth Amendment to the United States Constitution a defendant has a right of self-representation ... this right is not absolute, and after a defendant has proceeded to trial with an attorney, the right to proceed pro se rests within the sound discretion of the trial court. Appellant argues that under Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975), a defendant has a Sixth Amendment right of self-representation; however, this right is not absolute and may be waived or limited if not raised before trial.

Faretta does not deal with the situation of a defendant attempting to proceed pro se after trial has begun. Id. at 941 (citations omitted). Thus, if a defendant does not timely assert the right to proceed pro se, the decision to grant ⁴¹⁸ the request is also left to the sound discretion of the trial court. 6 Although we have not previously addressed this issue, the Court of Special Appeals has reached a similar conclusion in several decisions. 7 See Ross v. State, 53 Md.App. 397 , 453 ⁴¹⁹ A.2d 828 (1983); Johnson v. State, 44 Md.App. 515 , 411 A.2d 118 (1980). For example, in Ross v. State, 53 Md.App. 397 , 453 A.2d 828 (1983), the defendant was represented by counsel throughout the trial, but indicated a desire to deliver the closing argument himself after all the evidence was presented.

Id. at 398 , 453 A.2d at 829 . The trial court denied the request, and the Court of Special Appeals affirmed the decision. The intermediate appellate court distinguished other cases where the “request by the accused to represent himself came prior to the beginning of the trial” and concluded that there was “no abuse of the trial judge’s judicial discretion in his denial of the appellant’s request to give his closing argument to the jury pro se.” 53 Md.App. at 401 , 453 A.2d at 830-31 . In Johnson v. State, 44 Md.App. 515 , 411 A.2d 118 (1980), at the conclusion of the State’s evidence, defense counsel indicated that the defendant wished to discharge him.

Id. at 521 , 411 A.2d at 122 . The court denied the request, and the Court of Special Appeals affirmed. Although the intermediate appellate court found that the defendant did not “clearly and unequivocally” indicate a desire to represent himself, the court also stated that: Faretta v. California, supra, held that there is a constitutional right to self-representation. Snead v. State, 286 Md. 122 [ 406 A.2d 98 ] (1979), held that when a defendant expresses a desire to represent himself before the trial begins, the trial judge must conduct an inquiry to determine that (a) his request is made “clearly and unequivocally” and (b) he is “knowingly and intelligently” foregoing his right to counsel.

Faretta and Snead , therefore, do not affect the established rule that replacement of counsel during the course of a trial is a matter of discretion left to the trial court, United States v. DiTommaso, 405 F.2d 385, 393 (C.A. 4th Cir.1968), ⁴²⁰ cert. denied, 394 U.S. 934 [ 89 S.Ct. 1209 , 1210, 22 L.Ed.2d 465 ] (1969), and absent a showing of cause, such a request is properly denied. State v. Renshaw, 276 Md. 259, 270 [ 347 A.2d 219 ] (1975); Wright v. State, 32 Md.App. 60, 62 [ 359 A.2d 1 ] (1976), cert. denied, 278 Md. 740 (1976). In this case, there was no showing of prejudice and the motion was properly denied. Id. at 524, 411 A.2d at 123 .

We agree with the conclusion reached by the Court of Special Appeals in Ross and in Johnson, that the decision to permit discharge of counsel after trial has begun is within the sound discretion of the trial court. C. The majority of other appellate courts that have considered the issue have also concluded that after trial has commenced, the decision whether to permit a defendant to discharge counsel rests within the sound discretion of the trial court. See, e.g., United States v. Michelson, 559 F.2d 567, 572 (9th Cir.1977); Sapienza, 534 F.2d at 1010 ; State v. LaBare, 637 A.2d 854, 855 (Me.1994); State v. Robinson, 227 Conn. 711 , 631 A.2d 288, 297 (1993); State v. Ronne, 458 N.W.2d 294, 299-300 (N.D.1990); Works v. State, 266 Ind. 250 , 362 N.E.2d 144, 147 (1977); Commonwealth v. Miskel, 364 Mass. 783 , 308 N.E.2d 547, 552 (1974); State v. Heaps, 87 Or.App. 489 , 742 P.2d 1188, 1189 (1987). Thus, the procedural requirements triggered by a defendant’s decision to dismiss counsel differ depending on when the decision is made.

For example, in Works v. State, 266 Ind. 250 , 362 N.E.2d at 147 , the Supreme Court of Indiana addressed two related discharge of counsel issues. First, on the day before trial, after the defendant had been represented by counsel for a number of months, he requested permission to hire substitute counsel. The trial court denied defendant’s request for a continuance to hire substitute counsel. The appellate court concluded that this decision was not an abuse of discretion, ⁴²¹ because although the defendant had a constitutional right to an attorney of his choice if he could afford to employ one, the right can only embrace a reasonable opportunity to obtain such representation, and we find no denial of such opportunity.

Trial was imminent; the defendant had had prior continuances for such purpose, and the trial date had been determined three months earlier. Appointed counsel was prepared and ready. There was no claim of any lack of opportunity ... The [decision not to] grant[ ] a continuance ... was within the sound discretion of the trial court.

Id. 362 N.E.2d at 147 . Accord People v. Langley, 226 Ill. App.3d 742 , 168 Ill.Dec. 424 , 589 N.E.2d 824, 828 (1992) (“Whether defendant’s right to select counsel unreasonably interferes with the administration of the judicial process depends on the facts and circumstances of each case. A trial court’s denial of a defendant’s request to substitute counsel will not be overturned absent an abuse of discretion.”).

At trial during the State’s case-in-chief, the defendant in Works requested leave to personally cross-examine several witnesses. The trial court denied the request. The Indiana Supreme Court affirmed, stating that: The right of a defendant in a criminal case to act as his own lawyer is unqualified if evoked prior to the start of the trial ... Once the trial has begun with the defendant represented by counsel, however, his right thereafter to discharge his lawyer and to represent himself is sharply curtailed.

There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge’s assessment of the balance. Id. (quoting United States v. Catino, 403 F.2d 491 (2d Cir. 1968), cert. denied, 394 U.S. 1003 , 89 S.Ct. 1598 , 22 L.Ed.2d 780 (1969)). Accord McConnell v. Mankato, 456 N.W.2d 278, 279 (Minn.Ct.App.1990); Commonwealth v. Miller, 6 Mass.

App.Ct. 959, 383 N.E.2d 1144, 1146 (1978). ⁴²² The federal courts that have considered the issue have also left the decision to permit or refuse discharge of counsel after trial has begun to the sound discretion of the trial courts. See, e.g., United States v. Gallop, 838 F.2d 105, 107-08 (4th Cir.1988), cert. denied, 487 U.S. 1211 , 108 S.Ct. 2858 , 101 L.Ed.2d 895 (1988); United States v. Dunlap, 577 F.2d 867, 868 (4th Cir.1978), cert. denied, 439 U.S. 858 , 99 S.Ct. 174 , 58 L.Ed.2d 166 (1978). In Gallop , the United States Court of Appeals for the Fourth Circuit stated: The determination of whether or not the motion for substitution of counsel should be granted is within the discretion of the trial court and the court is entitled to take into account the countervailing state interest in proceeding on schedule. In evaluating whether the trial court abused its discretion in denying the defendant’s motion for substitution of counsel, the First and Ninth Circuits have held that the appellate courts should consider the following facts: Timeliness of the motion; adequacy of the court’s inquiry into the defendant’s complaint; and whether the attorney/client conflict was so great that it had resulted in total lack of communication preventing an adequate defense. 838 F.2d at 108 (citations omitted). 8 D. Courts differ on the exact point in time when the right to discharge counsel is curtailed.

Some courts have held, for example, that requests to proceed pro se are per se untimely if asserted after the jury has been selected. See Denno, 348 F.2d at 16. Other jurisdictions have established impanelment of the jury as the “cut-off’ point. See, e.g., Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir.1982); Price, 474 F.2d ⁴²³ at 1227.

Still others have held that requests are untimely if asserted after “meaningful trial proceedings have commenced.” See United States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir.1979) (quoting Dunlap, 577 F.2d at 868 ), cert. denied, 444 U.S. 1084 , 100 S.Ct. 1041 , 62 L.Ed.2d 770 (1980). We agree with the view expressed by the United States Court of Appeals for the Fifth Circuit in Chapman v. United States, 553 F.2d 886 (5th Cir.1977), that: A defendant must have a last clear chance to assert his constitutional right. If there must be a point beyond which the defendant forfeits the unqualified right to defend pro se, that point should not come before meaningful trial proceedings have commenced. We have not entered the age of “stop-watch jurisprudence!;.]” Id. at 895 .

Thus we believe the better approach is to assess whether “meaningful trial proceedings have commenced,” rather than adopting an inflexible rule of per se untimeliness. Accord Lawrence, 605 F.2d at 1325 & n. 2. See also Lyons v. State, 106 Nev. 438 , 796 P.2d 210, 214 (1990); People v. Windham, 19 Cal.3d 121 , 137 Cal.Rptr. 8 , 560 P.2d 1187 , 1191 n. 5 (1977), cert. denied, 434 U.S. 848, 98 S.Ct. 157 , 54 L.Ed.2d 116 (1977); 9 People v. White, 9 Cal.App.4th 1062 , 12 Cal. Rptr.2d 122 , 128 n. 8 (Ct.App.1992); People v. Mogul, 812 P.2d 705, 708 (Colo.Ct.App.1991) (declining to adopt per se rule that day-of-trial request to defend pro se is timely or untimely). ⁴²⁴ IV.

A. As stated at the outset, Maryland Rule 4-215 is designed to protect both the right to counsel and the right to proceed pro se. See Leonard v. State, 302 Md. 111, 122 , 486 A.2d 163, 168 (1985); see also