State v. Wischhusen

RAKER Judge. The question presented in this case is whether the trial court erred in failing to apply Maryland Rule 4-215, governing a defendant’s waiver of the right to counsel, when the defendant agreed to proceed in the absence of counsel while the court considered a question raised by the jury during deliberations and subsequently reinstructed the jury. Although Rule 4-215 does not apply to waiver decisions made after trial has commenced, see State v. Brown, 342 Md. 404 , 676 A.2d 513 (1996), we shall hold that the decision to waive the presence of counsel was tantamount to a waiver of the right to counsel and therefore requires a knowing and intelligent waiver inquiry. We shall also hold that under the totality of the circumstances, Wischhusen’s decision to waive the presence of counsel was knowing and intelligent.

I. George Wischhusen was indicted in the Circuit Court for Baltimore City on charges of first degree murder in violation of Maryland Code (1957, 1991 Repl.Vol., 1995 Cum.Supp.) Article 27, § 407, use of a handgun in commission of a felony in violation of Maryland Code (1957, 1991 Repl.Vol., 1995 Cum.Supp.) Article 27, § 36B(d), and wearing, carrying or transporting a handgun in violation of Maryland Code (1957, ⁵³³ 1991 Repl.Vol., 1995 Cum.Supp.) Article 27, § 36B(b). 1 He was tried before a jury and convicted on all counts. Wischhusen noted a timely appeal to the Court of Special Appeals. In an unreported opinion, the intermediate appellate court reversed his convictions and remanded the case for a new trial. Wischhusen’s second trial, a jury trial, commenced in February, 1994.

At the conclusion of all the evidence, the court instructed the jury on the offenses of first degree and second degree murder. During the second day of deliberations, however, the jury sent a note to the judge asking for clarification of the difference between first degree and second degree murder. The note read: Please clarify the difference between premeditated murder? [T]o what degree of premedication [sic]. How much time determines premedicated [sic] murder? & 2nd degree?

Pursuant to Maryland Rule 4-326, the court contacted counsel to inform them of the jury’s question. 2 Although the court’s subsequent discussion with defense counsel was not on the record, we glean the following facts from the court’s on the record discussion with Wischhusen. 3 When the court contacted Wischhusen’s counsel by telephone, defense counsel informed the judge that she did not wish to return to the courtroom for reinstruction of the jury. The judge then advised counsel that he planned to respond to the jury’s question by rereading his initial instructions. The ⁵³⁴ judge read counsel his proposed response, and she stated that she had no objection. 4 On returning to the courtroom for the reinstruction, the trial judge engaged in the following discussion with Wischhusen, outside the presence of the jury: [THE COURT]: Mr. Wischhusen, we have a question from the jury. The question is—let me explain.

I’m going to read you the question. I have spoken to [defense counsel]. [THE DEFENDANT]: Right. [THE COURT]:—on the phone. She has said that she did not wish to come down for this question to be presented to the jury or rather to be answered to the jury. You have an absolute right for her to be here, so if you wish her to be here, I will wait and tell her she must come and wait until she gets here before I reinstruct the jury.

However, if you wish to waive her appearance, you may also do that. If you wish to consult with her by telephone before you waive her appearance, you may also do that too. So I know you have not spoken to her this morning. [THE DEFENDANT]: No. [THE COURT]: And what I wanted to know, and I can tell you what I’m going to do, the question is please clarify the ⁵³⁵ difference between first degree premeditated murder, question mark. To what degree of premeditation, how much time determines premeditation—premeditated murder?

Then the next question is second degree murder, which is— assume they are asking for a definition of second degree murder. What I intend to do is to reread them, read them again the same instruction I gave them yesterday on first degree and second degree murder. I am not urging you to waive her presence. I’m simply asking you at this time do you wish me to have her come in or do you wish to waive her presence or do you wish to speak to her before you decide? [THE DEFENDANT]: Was the question read to [defense counsel] when you contacted her? [THE COURT]: Yes, it was read to [defense counsel], I read the question to [defense counsel] and I told her how I was going to answer the question. [THE DEFENDANT]: I’ll agree to proceed. [THE COURT]: You will agree to proceed without her being here? [THE DEFENDANT]: Yes. [THE COURT]: We can bring the jury in then.

The judge then proceeded to reinstruct the jury. Later that day, the jury returned its verdict. Wischhusen was convicted of first degree murder, use of a handgun in commission of a felony, and carrying a handgun. Defense counsel was present when the verdict was returned.

The court sentenced Wischhusen to life in prison for the murder plus twenty years for the handgun offenses, to be served consecutively. Wischhusen filed a timely appeal with the Court of Special Appeals, which reversed the convictions in an unreported opinion. The intermediate appellate court reasoned that Wischhusen’s right to counsel applied to every stage of the trial, and jury instruction was a critical stage. Therefore, the trial judge should have obtained a waiver of Wischhusen’s ⁵³⁶ right to counsel pursuant to Rule 4-215, and failure to apply all of the procedures specified by the Rule required reversal. 5 This Court granted the State’s petition for certiorari to answer the following questions: 1.

Did the Court of Special Appeals err in holding that Maryland Rule 4-215 is applicable once trial has commenced? 2. Did the Court of Special Appeals err in holding that Rule 4-215(b) applies where the defendant is represented by counsel and does not seek to waive representation by counsel, but merely seeks to waive counsel’s physical presence during the reinstruction of the jury?

II

The State contends that Wischhusen’s decision to proceed with reinstruction in the physical absence of his defense counsel does not constitute a waiver of the right to counsel. Thus, because Wischhusen did not waive his right to counsel, Rule 4-215 does not apply. The State also argues that because Rule 4-215(e), regarding discharge of counsel, has been interpreted not to apply once the trial begins, other parts of the rule also do not apply after trial commences. Furthermore, the State maintains that even if Rule 4-215(b) applies after trial begins, under the totality of the circumstances, the “knowing and intelligent” waiver standard of Johnson v. Zerbst, 304 U.S. 458, 464-65 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938), was satisfied.

Finally, the State contends that any error in failing to obtain an adequate waiver was harmless. Wischhusen contends that when he agreed to proceed with reinstruction of the jury in the absence of his counsel, he in essence waived his right to assistance of counsel, which should ⁵³⁷ have triggered application of Rule 4-215. Furthermore, Wischhusen argues that the trial court did not satisfy the Rule’s requirements, and that harmless error analysis is inapplicable to a Rule 4-215 violation. Finally, Wischhusen contends that even if Rule 4-215 does not apply, under the totality of the circumstances, he did not knowingly and intelligently waive his right to counsel.

III

A. The defendant’s right to the assistance of counsel is of paramount importance in a criminal trial. Strickland v. Washington, 466 U.S. 668, 684-85 , 104 S.Ct. 2052, 2062-63 , 80 L.Ed.2d 674 (1984); Gideon v. Wainwright, 372 U.S. 335, 344 , 83 S.Ct. 792, 796-97 , 9 L.Ed.2d 799 (1963). The assistance of counsel protects the defendant’s right to a fair trial by “requiring] the prosecution’s case to survive the crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648, 656 , 104 S.Ct. 2039, 2045 , 80 L.Ed.2d 657 (1984). In addition to safeguarding the defendant’s due process rights, defense counsel also serves an overarching purpose as protector of the defendant’s other constitutional rights.

Id. at 653 , 104 S.Ct. at 2043. In the context of defining the standard for ineffective assistance of counsel in Cronic , the Court expounded on the nature of the defendant’s right to assistance of counsel, stating that “[t]he presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” 466 U.S. at 659, 104 S.Ct. at 2047. The Court provided further explanation in a footnote, observing that: The Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding. ⁵³⁸ Id. at 659 n. 25, 104 S.Ct. at 2047 n. 25; see also White v. Maryland, 373 U.S. 59, 60 , 83 S.Ct. 1050, 1051 , 10 L.Ed.2d 193 (1963). Therefore, the Supreme Court concluded in Cronic that although a defendant must generally demonstrate prejudice to prove a claim of ineffective assistance of counsel, the defendant need not show prejudice if there was a complete denial of counsel at a critical stage of the proceedings.

Cronic, 466 U.S. at 659 , 104 S.Ct. at 2047 . See also Strickland v. Washington, 466 U.S. 668, 692 , 104 S.Ct. 2052, 2067 , 80 L.Ed.2d 674 (1984) (“[a]ctual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.”). Similarly in Hamilton v. Alabama, 368 U.S. 52 , 82 S.Ct. 157 , 7 L.Ed.2d 114 (1961), where the defendant was arraigned without counsel, the Court reversed his conviction because “[o]nly the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.” 368 U.S. at 55 , 82 S.Ct. at 159 . The Court has subsequently interpreted “critical stage” to mean “any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial.” United States v. Wade, 388 U.S. 218, 226 , 87 S.Ct. 1926, 1932 , 18 L.Ed.2d 1149 (1967).

In assessing whether a particular stage of the proceedings is critical, the court must: (1) analyze the potential prejudice to the defendant’s rights inherent in the particular confrontation, and (2) assess whether counsel could help to avoid that prejudice. Id. at 227 , 87 S.Ct. at 1932 ; see also C. Whitebread, Criminal Procedure § 25.03, at 521 (1980). The Court has included pre-trial proceedings, as well as proceedings during trial, within the definition of “critical stage.” White, 373 U.S. at 60 , 83 S.Ct. at 1051 ; Hamilton, 368 U.S. at 54 , 82 S.Ct. at 158-59 . Subsequent decisions of state and federal appellate courts have interpreted “critical stage” to encompass jury instructions and other communications with the jury during deliberations.

See, e.g., Siverson v. O’Leary, 764 F.2d 1208, 1214 (7th Cir.1985); Baugh v. Swenson, 279 F.Supp. 642, 645 (W.D.Mo.1968); Key v. People, 865 ⁵³⁹ P.2d 822, 825 (Colo.1994); Spencer v. State, 85 Wis.2d 565 , 271 N.W.2d 25, 28 (1978). 6 Maryland courts have also recognized that jury instruction is a critical stage of the trial, requiring the presence of defense counsel absent a knowing and intelligent waiver. 7 See Young v. State, 5 Md.App. 383, 387 , 247 A.2d 751, 754 , disapproved on other grounds, Noble v. State, 293 Md. 549, 569 , 446 A.2d 844, 854 (1982); cf. Bunch v. State, 281 Md. 680, 685 , 381 A.2d 1142, 1144 (1978); Midgett v. State, 216 Md. 26, 36-37 , 139 A.2d 209, 214 (1958). For example, in Young v. State, Judge Orth, writing for the Court of Special Appeals, stated that: It is fundamental that the [federal and state] constitutional provisions guarantee that counsel be present at trial, and embrace representation throughout the entire trial in all its stages. The appellant here was denied such representation. It is clear in this State that the giving of instructions to the jury is a stage of the trial.

Therefore the appellant was entitled to have his counsel present when the court gave the ⁵⁴⁰ additional instructions to the jury. The constitutional right to have the assistance of counsel necessarily includes the presence of counsel when instructions are given to the jury, absent a waiver. Id. at 387, 247 A.2d at 753-54 (citations omitted) (emphasis added). 8 In light of the Supreme Court’s statements in Cronic and Strickland , and in accord with the prior decisions of the Maryland courts discussed above, we believe that there is little support for distinguishing between waiving the presence of defense counsel at a critical stage of the proceedings and waiving the right to the assistance of counsel. Cf.

People v. Margan, 157 A.D.2d 64 , 554 N.Y.S.2d 676, 677-78 (1990). Counsel should be present at critical stages of the trial in order to serve the primary purpose of the right to counsel: promoting