Williams v. State

ALPERT, Judge. Michael Williams was charged with assault with intent to murder, assault, carrying a handgun, and use of a handgun in the commission of a crime of violence. An appearance on his behalf was entered by John J. Henderson, Assistant Public Defender. Immediately before trial in the Circuit Court for Baltimore City, it appears that unsuccessful plea negotiations were conducted.

After these negotiations failed, the defendant stated, “I want another representative.” His request was denied by the judge: THE COURT: No, sir, at this point we are going to proceed. This is not going to be a harangue or filibuster. Mr. Henderson is your lawyer, very highly respected among the Bar, very well-prepared. All he has done is indicated what, communicated the offer to you.

The offer has been turned down. You are now going to trial. Arraign the defendant. The defendant made no further objections, and the trial commenced with his defense conducted by Mr. Henderson.

At the conclusion of trial, the trial judge gave his instructions to the jurors. The court stated that in order to be convicted of using a handgun in a crime of violence, the defendant must be found guilty of a crime of violence. He continued by stating that assault with intent to murder is a crime of violence, but simple assault is not. He made it clear to the jurors that a conviction for use of a handgun in the commission of a crime of violence may not be preceded by an acquittal of the crime of violence.

Such a verdict would be inconsistent. After deliberations, the jury acquitted appellant on the assault with intent to murder charge but convicted him of assault, “carrying a handgun,” and use of a handgun in the ⁶⁹² commission of a crime of violence. The defendant moved for a new trial on the basis that conviction of use of a handgun in a crime of violence is inconsistent with an acquittal on the only crime of violence charged, i.e., assault with intent to murder. The trial court denied the appellant’s motion for a new trial.

Appellant was sentenced to six years imprisonment for the assault, three years imprisonment for carrying a handgun, and six years imprisonment for use of a handgun in the commission of a crime of violence, the sentences to run concurrently. He appealed, presenting two issues for our review: 1. Did the trial court’s refusal to permit appellant to state his reasons for wanting to discharge his trial counsel entitle appellant to a new trial? 2. Did the trial court err when it denied appellant’s motion for new trial?

I. Violation of Maryland Rule J/,-215(e) The appellant contends that the trial court erred when it refused to allow him to articulate his reasons for requesting a different attorney. He argues that Maryland Rule 4-215(e) requires that the court permit a defendant to explain his reasons for discharging counsel. Thus, he submits that refusal by the trial court to allow him to articulate such reasons is reversible error. Rule 4-215(e) provides: (e) Discharge of Counsel—Waiver.—If a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request.

If the court finds that there is a meritorious reason for the defendant’s request, the court shall permit the discharge of counsel; continue the action if necessary; and advise the defendant that if new counsel does not enter an appearance by the next scheduled trial date, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds no meritorious reason for the defendant’s request, the court may not permit the discharge of counsel without first informing the defendant that the trial will proceed as scheduled with the defendant ⁶⁹³ unrepresented by counsel if the defendant discharges counsel and does not have new counsel.. If the court permits the defendant to discharge counsel, it shall comply with subsections (a)(l)-(4) of this Rule if the docket or file does not reflect prior compliance. It is obvious that the trial court violated Rule 4-215(e) in that the court did not “permit” the defendant to articulate his reasons for requesting a different attorney to represent him, ie., the trial judge did not solicit appellant’s reasons, nor did appellant seek to offer any.

Having determined that the court violated the rule, we must now decide whether such a violation, under the circumstances presented, constitutes reversible error. Our analysis may best be brought into sharp focus by first examining what did not occur here. At no time did the appellant request that he be allowed to represent himself. By qualifying for representation by the Public Defender’s Office, he did not appear to have the resources to retain a private attorney.

The appellant did not proceed to trial without the assistance of an attorney. Even on appeal, the appellant does not allege that he was at any time without the effective assistance of counsel. Nor does he now contend that he would have preferred self-representation. What did occur here was that the court refused the defendant’s request for substitute representation, and the case proceeded to trial with the defendant fully represented by the attorney originally appointed by the Public Defender’s Office.

In examining Rule 723 (a predecessor to Rule 4-215), this court, in Wright v. State, 48 Md.App. 185 , 425 A.2d 1385 (1981), stated: We cannot permit ourselves to forget the reason Maryland Rule 723 was adopted in the first place, and the end which it serves today. The rule provides an orderly procedure to insure that each criminal defendant appearing before the court be represented by counsel or, if he is not, that he be advised of his Sixth Amendment constitutional right to the assistance of counsel, as well as his ⁶⁹⁴ correlative constitutional right to self-representation. In short, and as our Courts have said many times, the rule ‘implements the constitutional mandates’; but it does neither more nor less than that. Id. at 191 , 425 A.2d 1385 .

Subsection (e) to Rule 4-215 was added subsequent to our decision in Wright, supra, but the same purpose can be attributed to it. Therefore, we should examine the requirements of the Sixth Amendment to determine whether the trial court’s violation of the rule constitutes reversible error per se. A criminal defendant has the constitutional right to be represented by an attorney or to proceed pro se to defend himself. See Snead v. State, 286 Md. 122, 123 , 406 A.2d 98 (1979).

Where the issue is a defendant’s right to counsel of choice, a distinction is made between a defendant who wishes, and can afford, to retain a private attorney and an indigent defendant who has an attorney appointed for him. In the former case, the defendant has a right to counsel of choice; 1 while in the latter case the defendant possesses no right of choice. See United States v. Nichols, 841 F.2d 1485, 1504 (10th Cir.1988); United States v. Ely, 719 F.2d ⁶⁹⁵ 902, 904-05 (7th Cir.1983), cert. denied, 465 U.S. 1037 , 104 S.Ct. 1313 , 79 L.Ed.2d 710 (1984); Colvin v. State, 299 Md. 88, 100 , 472 A.2d 953 (1984); State v. Renshaw, 276 Md. 259, 270 , 347 A.2d 219 (1975). Cf., Morris v. Slappy, 461 U.S. 1 , 103 S.Ct. 1610 , 75 L.Ed.2d 610 (1983) (no Sixth Amendment right to a meaningful attorney-client relationship for a criminal defendant).

Unlike the situation where a trial court’s violation of a Rule 4-215 procedure compels a criminal defendant to represent himself where it has not been determined that he waived his right to counsel, see Maus v. State, 311 Md. 85 , 532 A.2d 1066 (1987), or where a violation occurs because an inquiry as to whether a defendant has invoked his right to self-representation was not conducted, see Snead, supra, constitutional mandates are not per se violated by a court where it refuses to allow an indigent defendant to specify his or her reasons for requesting a substitute attorney. 2 Accord United States v. Dilworth, 524 F.2d 470, 472 (5th Cir.1975), rehearing denied 528 F.2d 928 (5th Cir.1976); State v. Stinson, 424 A.2d 327, 330 (Me.1981); Commonwealth v. Flowers, 5 Mass.App. 557 , 365 N.E.2d 839, 845 ⁶⁹⁶ (1977). A violation of Rule 4-215(e) will only give rise to reversible error where a constitutional right has been infringed. An indigent criminal defendant’s right to counsel under the 6th Amendment is not a right to choice of counsel, but it is the right to the effective assistance of counsel. See Fowlkes v. State, 311 Md. 586, 605 , 536 A.2d 1149 (1988).

It follows that the only legitimate claim an indigent criminal defendant could make to retain different counsel is that he has been deprived of the effective assistance of counsel with his present attorney. In Watkins v. State, 59 Md.App. 705 , 478 A.2d 326 (1984), we noted that claims of ineffectiveness of counsel are normally left to post-conviction hearing and that the trial courts do not “have a constitutional duty to conduct a specific evidentiary-type inquiry ‘whenever they are confronted with those types of allegations.’ ” Id. at 715 , 478 A.2d 326 . As we have already stated that ineffectiveness of counsel is the only claim that an indigent defendant can make in requesting different counsel, the lower court’s failure to address it on the day of trial, while a technical violation of Rule 4-215(e), does not, in and of itself, violate the constitutional mandate that the same rule is designed to protect. 3 In application to this case, we hold that a refusal by the trial court to allow an indigent defendant to specify his reasons for requesting representation by a different attorney will only constitute reversible error where the defendant is denied the effective assistance of counsel. A ⁶⁹⁷ per se rule of reversal “is only warranted where the error is of the type that threatens the overall reliability of the trial.” Wooten-Bey v. State, 76 Md.App. 603, 613 , 547 A.2d 1086 (1988). 4 In the case sub judice, the defendant was afforded representation by a public defender.

In denying the defendant’s request for another attorney, the lower court stated that the defendant’s attorney was “well-prepared” and “highly respected.” He also indicated that the defendant’s request, coming on the date set for trial, might be for the purposes of delay. Subsumed within rule 4-215’s purpose to protect a defendant’s Sixth Amendment rights is the mechanism to determine if the defendant’s desire to discharge counsel is meritorious. (Minutes of Court of Appeals Standing Committee on Rules of Practice and Procedure, Sept. 10, 11, 1982). The Supreme Court in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), held that a defendant, in alleging ineffective assistance of counsel, must show that the counsel’s performance was deficient and that the deficient performance prejudiced the defense.

Id. at 687 , 104 S.Ct. at 2064 . This standard has been adopted by the appellate courts in Maryland. See State v. ⁶⁹⁸ Tichnell, 306 Md. 428, 441 , 509 A.2d 1179 (1986); State v. Dowdell, 73 Md.App. 172, 181 , 533 A.2d 695 (1987); Carter v. State, 73 Md.App. 437, 440 , 534 A.2d 1015 (1988). It would be an absurd proposition that prejudice need not be shown by the defendant where a procedural rule has been violated, while prejudice must be alleged and proven where the Sixth Amendment right that the procedural rule was designed to implement is violated.

Appellant has yet to assign any reason for discharging trial counsel, let alone a meritorious one. Even on appeal, defendant makes no arguments that his representation by counsel was less than adequate. See Roberson v. State, 741 S.W.2d 563 (Tex.App.1987) (no right to appointed counsel of choice, and no harm shown by court’s denial of counsel’s motion to withdraw where “attorney provided competent representation and a vigorous defense”). It is most reasonable to infer that if appellant had a meritorious reason for discharging counsel, he would have, at some point (on the motion for new trial or on this appeal), so stated.

Under such circumstances, we refuse to hold that a technical violation of rule 4-215(e) constitutes reversible error where no violation of defendant’s Sixth Amendment rights (the same rights that rule 4-215 was created to protect) has occurred. Cf. United States v. Seidel, 620 F.2d 1006, 1013 (4th Cir.1980) (In the absence of prejudice, violation of criminal joinder rule is harmless error). This holding is not at all in conflict with Maus v. State, 311 Md. 85 , 532 A.2d 1066 (1987), a case cited by the defendant.

In Mans, one of the appellants (Wilkes) was unrepresented at a probation revocation hearing. The trial court proceeded on the merits at the hearing without permitting the defendant to articulate the reason why he was unrepresented