Maynard v. Meachum, 76-1255

• Citation: 545 F.2d 273
• Decision Date: 19 November 1976
• Docket Number: No. 76-1255,76-1255
• Parties: Ronald MAYNARD, Petitioner, Appellee, v. Larry MEACHUM, Respondent, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 273

545 F.2d 273

Ronald MAYNARD, Petitioner, Appellee, v. Larry MEACHUM, Respondent, Appellant.

No. 76-1255.

United States Court of Appeals, First Circuit.

Argued Sept. 9, 1976.

Decided Nov. 19, 1976.

John P. Corbett, Asst. Atty. Gen., Crim. Div., with whom Francis X. Bellotti, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Bureau, Boston, Mass., were on brief, for appellant.

James R. Burke, Newton, Mass., for appellee.

Before COFFIN, Chief Judge, CLARK, ^* Associate Justice, U.S. Supreme Court (Ret.), and McENTEE, Circuit Judge.

COFFIN, Chief Judge.

Petitioner, Ronald Maynard, sought habeas corpus relief, attacking his state court conviction on the ground that his decision to waive counsel was not knowingly and intelligently made. The district court issued the writ, and the government appeals.

The record of the state court proceeding reveals that when the case was called for trial on February 18, 1971, Maynard's court-appointed counsel requested permission to withdraw from the case. In response to questioning by the judge, the attorney described the services he had performed during the eight months he represented Maynard. He said that Maynard first indicated interest in hiring another lawyer on February 1, but in a conversation with Maynard's mother on February 16 it developed that the money she was planning to use had "not come through" and that she was making no effort to retain other counsel at that time. The attorney asserted that he was prepared and able to conduct the trial, but that he hated "to engage in a trial where I know that the client does not desire my services." He concluded by stating that Maynard now wanted to represent himself, and wished to address the court in that regard. The court then ruled that the attorney would not be allowed to withdraw and should be prepared at all times to "resume active oral duties" if Maynard decided at any time to cease acting pro se. The judge then asked Maynard if he wanted to dispute anything the attorney had said. Maynard responded that he was asking for another lawyer "because he (his lawyer) told me himself he didn't think he could handle this." The attorney immediately denied making such a statement, and the colloquy continued "THE COURT: All right. He has made a statement. Bear with us. Now, anything else?

DEFENDANT MAYNARD: No, but I just would like to know about what I told you. I told you I wanted another lawyer. . . . I mentioned one. It isn't a crime to ask for a lawyer. . . . I mentioned a lawyer that I would like to get from Lynn.

THE COURT: Well, in the absence of this lawyer, whoever he may be, that you would like, do you prefer to represent yourself?

DEFENDANT MAYNARD: I'd like to get this lawyer.

THE COURT: What efforts have been made to get this lawyer?

. . . DEFENDANT MAYNARD: I couldn't get him. I had to have a court appoint him.

THE COURT: Well, the court has already appointed one lawyer for you.

DEFENDANT MAYNARD: Well, I don't think, you know, that he can handle my case.

THE COURT: Have you ever met the other lawyer?

. . . DEFENDANT MAYNARD: No. I know of him. Inmates have told me he was a good lawyer.

THE COURT: Well, now, (counsel's) request for leave to withdraw is denied. And he will act, to the best of his ability, as counsel for Mr. Maynard to the extent that the circumstances permit. Mr. Maynard, to the extent that he wishes, may act as his own counsel, pro se, remaining in the dock at all times. But he may not, if he decides not to act pro se, he may not then later resume acting pro se."

After some discussion of the last proviso, and clarification by Maynard's counsel of statements he had made concerning his ability to conduct the case, the judge declared that the trial should begin. When Maynard presented some preliminary motions to the court, the judge asked if he was proceeding pro se, and he replied that he was. Following a brief recess, counsel for Maynard's co-defendant announced that he too wished to proceed pro se. This was allowed on the same conditions applied to Maynard.

The defense was conducted largely by Maynard's co-defendant, Robert Laurin. Laurin suggested questions to be asked of the jury panel, made opening and closing statements, entered some objections during the government's direct examination of its two witnesses, and cross-examined the witnesses. Counsel for the two defendants interposed a few objections, communicated defendants' motions and requests to the court, and consulted with the defendants before Laurin conducted his first cross-examination. In addition, each lawyer gave his client notes on the witnesses' direct testimony for use in cross-examination. At the close of the prosecution's case the defense rested without calling any witnesses, although they had subpoenaed several persons and were given an opportunity to consult with them and with counsel before making that decision. The jury found both defendants guilty as charged of two counts of armed robbery, two counts of assault with a dangerous weapon, breaking and entering, larceny, and malicious damage to property.

Maynard raised his claim of ineffective waiver of counsel on appeal to the Massachusetts Appeals Court, which held that because counsel was present and available during trial his "election to proceed as he did was not a waiver of his right to counsel" and so presented no question of knowing and intelligent waiver. Commonwealth v. Maynard (1974) Mass.App., 319 N.E.2d 453. ¹ The Massachusetts Supreme Judicial Court denied an application for further review and Maynard then sought habeas relief in the district court.

In an unpublished opinion, the district court held that Maynard had represented himself at trial, characterizing the lawyer as merely "stand-by-counsel", and that the trial court had an affirmative obligation "to ask such questions and receive such satisfactory answers as to enable the court to conclude that a decision to forego a fundamental, important constitutional right was indeed made knowingly and intelligently." Because the record was "barren of the showing that is necessary or would be necessary to conclude that the waiver was" constitutionally effective, the court concluded that Maynard was entitled to a new trial.

We agree with the district court that the arrangement at Maynard's trial raises the issue of effective waiver of counsel: whatever label is attached to it, the net result was that Maynard had less than the full representation by counsel to which, absent a valid waiver, he was entitled under the Sixth Amendment. See United States ex rel. Konigsberg v. Vincent,388 F.Supp. 221, 224-25 (S.D.N.Y.), aff'd, 526 F.2d 131 (2d Cir. 1975). Cf. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). We can conceive of no reason why the standard for waiving part of a constitutional right should be different from the standard for waiver of the entire right. Respondent argues, and we agree, that it is within the discretion of a trial court to allow the sort of hybrid arrangement that was adopted in this case, see, e. g., United States v. Hill, 526 F.2d 1019 (10th Cir. 1975); United States v. Guanti, 421 F.2d 792 (2d Cir. 1970). But it does not follow that such an arrangement is the equivalent of full representation by counsel for purposes of waiver: it was apparently not suggested in any of the cases cited by respondent that the defendant's agreement to the arrangement was not knowing and intelligent. On respondent's analysis, the right to counsel is satisfied, regardless of the reality of self-representation, so long as counsel is not formally allowed to withdraw and remains in the courtroom. We do not believe that the protections of this right that have evolved from Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), can be so casually swept away.

Thus, although the record reveals that Maynard knew of his right to appointed counsel, and that he affirmatively acquiesced in the procedure at trial, compare Carnley v. Cochran, 369 U.S. 506, 513-17, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962), the question remains whether this acquiescence was competent, intelligent and voluntary. See Johnson v. Zerbst, supra, 304 U.S. at 465, 58 S.Ct. 1019; Moore v. Michigan, 355 U.S. 155, 164, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957). We do not believe, however, that the absence of explicit bench warnings or a colloquy on the record compelled the district court's conclusion that Maynard's waiver of counsel was ineffective.

The fact of waiver, "ordinarily an intentional relinquishment or abandonment of a known right", Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. at 1023, may not be presumed or inferred from a silent record. Carnley v. Cochran, supra, 369 U.S. at 516, 82 S.Ct. 884. But where, as here, the record shows the petitioner's "affirmative acquiescence" in the arrangements at trial, the burden falls on him to show that his "acquiescence was not sufficiently understanding and intelligent to amount to an effective waiver." Id. at 516-17, 82 S.Ct. at 890. See Spanbauer v. Burke, 374 F.2d 67, 74 (7th Cir. 1966); Bortmess v. Rodriquez, 375 F.2d 113, 114 (10th Cir. 1967). Moreover, while the Supreme Court has observed that "it would be fitting and appropriate" for the trial court to determine the effectiveness of a waiver on the record, Johnson v. Zerbst, supra, 304 U.S. at 465, 58 S.Ct. at 1023, it also cautioned that "(w)hen collaterally attacked, the judgment of a court carries with it a presumption of regularity. Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of counsel." 304 U.S. at 468-69, 58 S.Ct. at 1025. (Italics original, footnotes omitted.) See also Moore v. Michigan, supra.

While record inquiry would...