Westray v. State

JAMES A. KENNEY, III (Retired, Specially Assigned), J. A jury sitting in the Circuit Court for Montgomery County convicted William Westray, appellant, on nine counts of first degree burglary, ten counts of theft, and two counts of attempted first degree burglary. The trial court imposed an aggregate sentence of sixty years’ incarceration. He presents three contentions in his brief, which we have rephrased as follows: 1 ⁴³⁴ 1. Did the circuit court discharge counsel in compliance with Md. Rule 4-215? 2.

Did the circuit court err or abuse its discretion by denying appellant’s request for the appointment of pro bono counsel? 3. Has review of the search warrant been preserved for appellate review? As we shall explain, we answer the first question “no.” We address the second question in the event of a retrial. The third question is not preserved for our review.

Factual and Procedural History 2 On May 15, 2012, Westray appeared before the circuit court for a hearing to address assigned counsel’s concern that “he’s had difficulty speaking with [Westray].” Reminding Westray that an August trial date had been scheduled, the court cautioned Westray and indicated that it “want[ed] to make sure that [Westray was] well represented.” Westray quickly voiced his dissatisfaction with assigned counsel 3 : MR. WESTRAY: I mean this man is an idiot, sir. Straight, straight, straight down, he’s an idiot----I’m saying it now. ⁴³⁵ You might as well going to kill me. I’m not going into a courtroom with this man.

THE COURT: Have you had the opportunity to meet with [assigned counsel]? MR. WESTRAY: He don’t do nothing I ask him to do. So what, I mean what, what do I need a lawyer if he here for me, not for himself.

Okay? THE COURT: Are you telling me that you have met with him before? MR. WESTRAY: Yeah.

This man, this man, this man don’t listen to nothing I tell him. I mean he’s an idiot. Look at him. He’s an idiot.

THE COURT: Now— MR. WESTRAY: Seriously. THE COURT:—you’ve met, Mr. Westray, you’ve met— MR. WESTRAY: Let’s go over—I’m going to tell you this.

I’m not coming— THE COURT: Just listen. MR. WESTRAY:—to court with this man, okay? THE COURT: Have you met with— MR.

WESTRAY: I will represent myself and I would die first before I, before I, before I, before I come to court with this man, okay? Westray continued until the circuit court turned to assigned counsel for an explanation: THE COURT: All right. [Assigned counsel], do you want to be heard on this? [ASSIGNED COUNSEL]: Yes, Your Honor. I was assigned to represent Mr. Westray. I went out and met him on different occasions.

We had a meeting on February 22nd of this year and I was able to get some biographical information from him. I met him on the 28th of February and I got, I got nowhere. He wouldn’t engage with me. I had, I had some ⁴³⁶ doubts as to whether he was competent or not.[ 4 ] I called some family members.

I never really got a clear answer about that. At some point he indicated to me that maybe he was going to try to retain counsel, that maybe family members had the ability to do that. I spoke to his uncle who indicated that Mr. Westray had inherited some money some period of time ago, but his uncle didn’t believe any of that money was still available and that there were no funds in the family for him to retain private counsel. I’ve tried to meet with him since.

I think I tried to go meet with him two weeks ago and he refused to meet with me at all. THE COURT: Has he ever asked you to do something that you haven’t done to your knowledge? [ASSIGNED COUNSEL]: Not, not to my knowledge. I’ve called family members and I’ve received discovery in the case. I haven’t even had a chance to start to discuss it with him and show him what the different pieces of evidence against him are.

He’s indicted in about a dozen first-degree, you know, residential burglaries here in Montgomery County. (Emphasis added). Counsel’s concerns about the failure to engage with Westray prompted him to request the presence of the District Public Defender for Montgomery County: ⁴³⁷ [ASSIGNED COUNSEL]: ... I just wanted to let him know that it sounded to me like he, he kept telling me, “You’re fired, I don’t want you to represent me,” and I’ll go, “Okay, that’s fine.” It’s very clear that’s the message I was getting and I was not going to be able to engage him on this matter.

For Mr. Westray’s benefit, I asked Brian Shefferman to be here. He’s the District Public Defender for Montgomery County. And I’d actually ask Mr. Shefferman to come forward and explain to Mr. Westray how the Public Defender treats requests to discharge counsel at this time. Mr. Shefferman addressed the court and explained that the Public Defender’s Office “just can’t assign any lawyer of [a defendant’s] choosing.” He added: If for some reason, although technically you have the right to represent yourself, Mr. Westray, if you were to say you don’t want [assigned counsel], it would be our policy that we’re not going to assign you a different lawyer....

Westray responded that he “could find” a private counsel and that he would “get money and find one.” The circuit court then reviewed the charges and warned Westray that the charges exposed him to substantial penalties. 5 He further advised: So an attorney can be of assistance to you at trial. I mean even if you are guilty of any of these offenses, an attorney can help in the event you’re convicted to explain to the Judge why you should get a lesser sentence. So it’s very important, obviously, that you have an attorney. Now you already know, because you have been represented by the Public Defender, that you may be entitled to representation by the Public Defender.

But as has been pointed out to you by Mr. Shefferman, if you are dissatisfied with [assigned counsel], it is their policy, meaning the Public ⁴³⁸ Defender’s policy, that you can’t be represented by another member of the office. In other words, you don’t have the right to choose which Public Defender is going to represent you. You also have the right to be represented by a private attorney which you’ve indicated to me you’re going to try to do. So it’s very important that you attend to that as quickly as possible, because if you come back here in 30 days when we have the new hearing and you tell me, “Judge, I don’t have a, I can’t afford a private attorney,” then you’re going to have to make that decision which it sounds like you’ve already made, that you don’t want to have [assigned counsel] represent you and you’re going to represent yourself, which I wouldn’t recommend because you’re not a trained lawyer.

Now I’m not suggesting you should discharge [assigned counsel], but I think it would be a good idea for you to at least think about this over the next 30 days. If you get the public, if you get the private attorney, that’s fine. We can deal with that. But if not, in 30 days you’re going to have to tell me, Judge, I want to fire [assigned counsel] or I want to keep him and I’ll respect whatever that decision is.

But that’s the time in which we’ve got to figure out what to do here because I don’t want you to be trying this case by yourself. You’re not a trained attorney. All right? Do you have any questions you want to ask of me at this time?

Westray appeared before the circuit court on June 8 and reiterated his wish to discharge assigned counsel. The circuit court warned him that “firing the Public Defender’s Office[,]” would mean “defending yourself or you’re seeking to retain private counsel.” The court indicated that self-representation was ill-advised, and that his reasons for discharging counsel were without merit, but granted Westray’s wish to discharge counsel. The court then cautioned Westray as follows: THE COURT: Okay. So what I’m going to do is I’m going to confirm with you this trial date which is now August 21st and according to the State’s Attorney it’s going to take ⁴³⁹ about three days to try this case because I guess there’s a number of allegations.

So I certainly still encourage you to get counsel. If you get counsel and there’s a genuine reason why that counsel can’t be present and needs a postponement, I would certainly consider that at that time, but for now since you’ve indicated to me that you don’t want counsel, we’re going to keep that court date as it is— MR. WESTRAY: Okay. No problem.

Before the trial on August 21, the court took up Westray’s previously filed motion for the appointment of pro bono counsel. The following transpired: Your final motion, really two motions, Mr. Westray, are a motion for postponement, which is sort of coupled for a motion for pro bono screening. Now before I hear you in argument, I want to remind you of a couple of things. You were back before me in May because [assigned counsel] was concerned that he was going to be fired and wanted a hearing so I could determine what the status was regarding your counsel.

And I at that time advised you of your right to counsel because you hadn’t previously been advised since you were represented by counsel. And I explained to you that an attorney could be of assistance to you during the trial. Even if you were found guilty, an attorney would be helpful in explaining to a judge that a lesser sentence might be appropriate in your case. But we set another hearing on June 8th because I actually had tried to dissuade you in May from firing [assigned counsel].

At the June 8th hearing, I informed you that I would let you discharge [assigned counsel]; however, that you needed to understand that under the law of this state, when you fire your Public Defender, you don’t get the choice of another free attorney. And I didn’t find any merit in your reason for firing [assigned counsel]. I think he’s a fine attorney. I know ⁴⁴⁰ you didn’t like him and I appreciate that, but you assured me at that time that you wanted to go ahead and represent yourself.

And I told you that if you obtained new counsel and that new counsel had a trial conflict, I would be glad to consider postponing the matter. So now here in early August you now say, “Well, I want, I want you to appoint a pro bono attorney for me.” I don’t know that I have any power to do that. The only provision that I’m aware of in a criminal case for representation of the indigent, at least through a state agency, is the Public Defender. And as I said, you’re not allowed to pick and choose Public Defenders.

So do you still want me to postpone this case? After Westray responded in the affirmative to the court’s question regarding a postponement, the court denied Westray’s motion for continuance: The point is now that you’re really, since you let the Public Defender go, you really sort of have the choice of representing yourself or hiring a private attorney, which I understand you’re not able to do. And you did assure me that you wanted to represent yourself. So here we are.

MR. WESTRAY: So be it, man. I represent myself, I don’t need, I don’t need it, brother. Discussion I. Discharge of counsel Westray asserts that the circuit court erred by failing to determine and announce on the record that he “knowingly and voluntarily” waived his right to counsel in accordance with Md. Rule 4-215(b).

The State responds that “Rule 4-215 does not require such an announcement when a defendant seeks to discharge an attorney whose appearance has been entered.” According to the State, the announcement of a “knowing and voluntary” waiver requirement is invoked where “a defendant who is not represented by counsel indicates a desire to waive counsel.” ⁴⁴¹ The State further maintains that the circuit court did comply with Rule 4-215(b), as mandated by Rule 4—215(a)(4), by conducting a “waiver inquiry,” and points out that the “record shows that there was ‘an examination of the defendant on the record conducted by the court, the State’s Attorney, or both.’ ” More specifically, the State asserts: Rule 4-215(b) explicitly refers to a situation where “a defendant who is not represented by counsel indicates a desire to waive counsel.” However, at the June 8, 2012, hearing [appellant’s desire to waive counsel] is the focus of his claim, Westray was represented by counsel. So the language of Rule 4-215(b), by itself, does not apply to Westray’s situation. Westray is correct that Rule 4-215(e) requires compliance with “subsections (a)(l)-(4) of this Rule” and one of those subsections requires the circuit court to “[c]onduct a waiver inquiry pursuant to section (b) of this Rule if the defendant indicates a desire to waive counsel.” However, the “waiver inquiry” requirement of Rule 4—215(b) is analytically and chronologically distinct from the “determine and announce” requirement. In other words, Rule 4-215(b) requires the trial court to: (1) make an inquiry—that is, ask certain questions, or make sure those questions are asked (“an examination of the defendant on the record conducted by the court, the State’s Attorney, or both”); and (2) make an explicit decision (“after” the examination, “determines and announces on the record that the defendant is knowingly and voluntarily waiving the right to counsel”).

That the “inquiry” is separate and distinct from the decision is confirmed by the plain meaning of the rule and case law construing the rule. An “inquiry” involves asking questions, not making a decision. See American Heritage College Dictionary 716 (4th ed.2007) (defining “inquire” as “[t]o seek information by asking a question”). Moreover, the rule indicates that the determination and announcement is to occur “after” the inquiry—that is, the “examination,” indicating that they are chronologically and conceptually distinct.

In addition, this Court’s case law has treated the ⁴⁴² “inquiry” as a “step” that is distinct from the decision made after that inquiry: Synthesizing the case law mentioned above, a lower court should engage in a simple three-step process when determining whether the reasons presented by a defendant who wishes to discharge his attorney are meritorious. The court should first ask the defendant why he wishes to discharge counsel, give careful consideration to the defendant’s explanation, and then rule whether the explanation offered is meritorious. Hawkins v. State, 130 Md.App. 679, 687 [ 747 A.2d 759 ] (2000) (emphasis added). Standard of Review Our review of the circuit court’s compliance with Rule 4-215 is de novo.

See Gutloff v. State, 207 Md.App. 176, 180 , 51 A.3d 775 (2012). “ ‘The provisions of the rule are mandatory’ and a trial court’s departure from them constitutes reversible error.” State v. Hardy, 415 Md. 612, 621 , 4 A.3d 908 (2010) (quoting Williams v. State, 321 Md. 266, 272 , 582 A.2d 803 (1990)). Preservation Generally, for an appellate court to review an issue on appeal, the issue must have been raised and decided by the trial court. See Md. Rule 8-131(a). “In other words, if a party fails to raise a particular issue in the trial court, or fails to make a contemporaneous objection, the general rule is that he or she waives that issue on appeal.” Nalls v. State, 437 Md. 674, 691 , 89 A.3d 1126 (2014) (internal citations omitted). Here, there was no contemporaneous objection made and the State has not raised the issue of preservation.

This is not a case where the defendant was represented by counsel and the record reflects a court inquiry that might inform a decision as to whether the defendant’s decision to waive a jury trial was made knowingly and voluntarily. Not only had appellant discharged his lawyer, the record does ⁴⁴³ not suggest a meaningful inquiry as to whether his decision to discharge counsel was a knowing and voluntary decision. Moreover, this case extends beyond a court’s failure to use “magic words” or their synonyms, but rather whether there was a proper inquiry and colloquy to ensure that he was making a knowing and voluntary decision to waive his constitutional right to counsel with a full understanding of the consequences of his decision. As we explain later, that is the purpose of Rule 4-215.

Therefore, under the circumstances of this ease, we are persuaded that preservation is not governed by the contemporaneous objection requirement. 6 The Right to Counsel The Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights “ ‘guarantee the right to counsel, including appointed counsel for an indigent, in a criminal case involving incarceration.’ ” Broadwater v. State, 401 Md. 175, 179 , 931 A.2d 1098 (2007) (quoting Parren v. State, 309 Md. 260, 262 , 523 A.2d 597 (1987)); see also Brye v. State, 410 Md. 623, 634 , 980 A.2d 435 (2009). The constitutional rights guaranteed “encompass not only the right of a defendant to the effective assistance of a duly licensed attorney at law but also the right of a defendant to appear in propria persona.” Parren v. State, 309 Md. 260, 262-63 , 523 A.2d 597 (1987) (internal citations omitted). Speaking in regard to the right to counsel in the Sixth Amendment to the Constitution of the United States, the Supreme Court has stated that the “Constitution does not force a lawyer upon a defendant. He may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open.” Adams v. United States, 317 U.S. 269, 279 , 63 S.Ct. 236 , 87 L.Ed. 268 ⁴⁴⁴ (1943) (citing Johnson v. Zerbst, 304 U.S. 458, 468 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938)).

To protect a criminal defendant’s right to counsel, “courts indulge every reasonable presumption against [a] waiver [of the right to counsel.]” Parren v. State, 309 Md. at 263 , 523 A.2d 597 (citing Johnson v. Zerbst, 304 U.S. at 464 , 58 S.Ct. 1019 ). Hence, any decision to proceed without the representation of counsel necessitates a meaningful inquiry into whether an accused has knowingly and voluntarily waived the assistance of counsel. See id. at 272-73, 523 A.2d 597 (internal citations omitted). In other words, the “duty [to conduct a waiver inquiry] cannot be discharged as though it were a mere procedural formality.” Von Moltke v. Gillies, 332 U.S. 708, 722 , 68 S.Ct. 316 , 92 L.Ed. 309 (1948). “Maryland Rule 4-215(e) was drafted and implemented to protect both the right to the assistance of counsel and the right to self-representation.” Pinkney v. State, 427 Md. 77, 92 , 46 A.3d 413 (2012) (citing State v. Brown, 342 Md. 404, 412 , 676 A.2d 513 (1996)).

Embodied within the Rule, however, is “the principle ... that an unmeritorious discharge of counsel and request for new counsel, in an apparent effort to delay the trial, may constitute a waiver of the right to counsel.” Fowlkes v. State, 311 Md. 586, 603 , 536 A.2d 1149 (1988). To protect both the constitutional guarantees of the right to counsel and the right to proceed without representation, Maryland Rule 4-215 imposes an “order of procedure” to be followed ⁴⁴⁵ Broadwater v. State, 401 Md. 175, 180 , 931 A.2d 1098 (2007) (footnote omitted). ⁴⁴⁴ by which the right to counsel may be waived by those defendants wishing to represent themselves, the modalities by which a trial judge may find that a criminal defendant waived implicitly his or her right to counsel ... and the necessary litany of advisements that must be given to all criminal defendants before any finding of express or implied waiver of the right to be represented by counsel may be valid. ⁴⁴⁵ The Court of Appeals has made clear that “the requirements [of] Md. Rule 4-215 ‘are mandatory and must be complied with, irrespective of the gravity of the crime charged, the type of plea entered, or the lack of an affirmative showing of prejudice to the accused.’ ” Broadwater, 401 Md. at 182 , 931 A.2d 1098 (quoting Taylor v. State, 20 Md.App. 404, 409 , 316 A.2d 296 (1974)). Accord Pinkney, 427 Md. at 87 , 46 A.3d 413 ; State v. Camper, 415 Md. 44, 55 , 998 A.2d 352 (2010); Sinclair v. State, 214 Md.App. 309, 321 , 76 A.3d 442 (2013). To further our discussion of Rule 4-215, we summarize the series of court appearances that ultimately led to appellant going to trial without counsel. • On May 15, 2012, appellant expressed disappointment with appointed counsel, but counsel was not discharged during that appearance. • On June 8, 2012, appellant appeared in court and reiterated his wish to discharge counsel.

The court granted the discharge after its finding appellant’s reasons for doing so not to be meritorious and the discharge ill advised. The court advised the appellant of the scheduled trial date and encouraged him to get counsel, indicating that if new counsel had a “genuine reason” why he or she could not be present, the court would consider a postponement. • On August 21, at the beginning of trial, the court addressed appellant’s motion for the appointment of pro bono counsel and a postponement of the trial. The court denied the motion, stating “... you really sort of have the choice of representing yourself or hiring a private attorney, which I understand you’re not able to do. And you did assure me that you wanted to represent yourself.

So here we are.” 7 ⁴⁴⁶ The discharge of counsel on June 8 would invoke the provisions of Rule 4-215(e). 8 Rule 4-215(e), in turn, refers to subsections (a)(l)-(4), and subsection (4) requires a waiver inquiry pursuant to section (b) of the rule. Rule 4-215(d) 9 applies if appellant’s appearance without counsel on August 21, the date set for trial, and the rejection of appellant’s desire to have counsel appointed by the court is to be understood as a “finding] that there [was no] meritorious reason for [appellant’s] appearance without counsel,” coupled with a determination by the court that appellant had waived his right to counsel by inaction. Md. Rule 4-215(d). ⁴⁴⁷ In that situation, section (d), like section (e), requires that the “record shows compliance with section (a) of this Rule.” Id. Thus, both sections of the Rule refer us back to section (a) of the Rule, 10 and the need to “[cjonduct a waiver inquiry pursuant to section (b) of [the] Rule.” Md. Rule 4-215(a)(4).

Section (b), in turn, requires an examination on the record and a determination by the court and