Bright v. State

• Decision Date: 01 September 1985
• Docket Number: No. 1292,1292
• Citation: 68 Md.App. 41,509 A.2d 1227
• Parties: David BRIGHT and Marvin Parren v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 41

68 Md.App. 41

509 A.2d 1227

David BRIGHT and Marvin Parren v. STATE of Maryland.

No. 1292, Sept. Term, 1985.

Court of Special Appeals of Maryland.

June 6, 1986.

Clarence W. Sharp, Assigned Public Defender, of Annapolis, (Alan H. Murrell, Public Defender, on the brief, Baltimore), for appellants.

Cathleen C. Brockmeyer, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Kurt L. Schmoke, State's Atty. for Baltimore City and Edwin Wenck, Asst. State's Atty., for Baltimore City, on the brief, Baltimore), for appellee.

Argued before WILNER, GARRITY and ROSALYN B. BELL, JJ.

ROSALYN B. BELL, Judge.

David Bright and Marvin Parren, inmates at the Maryland State Penitentiary, were tried and convicted in the Circuit Court for Baltimore City on charges resulting from an altercation with two correctional officers at the prison. Parren was found guilty of assault, two counts of carrying a deadly weapon openly with intent to injure, and assault with intent to murder. He was sentenced to twenty years imprisonment to run consecutively to the sentence he was already serving on an unrelated charge. Bright was found guilty of two counts of assault and sentenced to six years imprisonment to run consecutively with the sentence he was already serving. Appellants present the following questions on appeal:

1) Whether the trial court erred in not conducting the waiver of counsel inquiry required under Rule 4-215 before it permitted appellants to represent themselves?

2) Whether the trial court erred in its instructions and reinstructions to the jury?

3) Whether the trial court improperly refused to compel the attendance of a witness who was abroad at the time of trial?

4) Whether the State erred in failing to comply with appellants' pro se discovery request?

5) Whether the trial court erred in failing to grant appellants' motion for a new trial?

RULE 4-215 INQUIRY

Appellants first argue that the trial court failed to conduct a proper waiver of counsel inquiry under Rule 4-215 before "permitting appellants to represent themselves at trial." In particular, appellants allege that the trial judge made no attempt to explain the charges or the possible punishments and defenses before accepting their waiver.

Appellants are misguided. They did not truly represent themselves. They requested and were provided with the assistance of counsel throughout the entire trial process. What they received has become known as "hybrid representation"--a form of representation in which the defendant participates in his or her own defense while also retaining the assistance of counsel. Whether to grant hybrid representation when requested is purely within the discretion of the trial judge. Wilson v. State, 44 Md.App. 318, 330, 408 A.2d 1058 (1979), cert. denied, 287 Md. 758 (1980).

Both appellants appeared with their respective counsel the morning of their trial. Their indictments were read in full. Appellant Parren, through counsel, requested permission to question some of the witnesses along with counsel. The court granted his request after cautioning appellant that "these are very experienced lawyers. You might make a very big mistake.... Work with your lawyer."

Similarly, appellant Bright, through counsel, requested that he be permitted to conduct his own defense with the assistance of counsel. The court responded that if appellant Bright wanted to try his own case, he had that right, but the court would permit appellant's counsel to sit at counsel table with appellant and allow appellant to consult with counsel throughout the trial. The court then proceeded to engage in an inquiry to determine whether appellant's decision was knowing and voluntary. The court also informed appellant of the benefit of counsel.

Appellant Parren then requested that in addition to assisting with the questioning of witnesses he be permitted to make his closing argument. Appellant added:

"If it takes me to represent myself, [Defense Counsel] sit on the side and assist me, and address the Jury, I agree to do that."

The trial judge granted appellant Parren's request after proceeding through the same inquiry and warnings that he had given appellant Bright.

The waiver of counsel inquiry under Rule 4-215 applies in two situations: those in which a defendant appears in court without counsel and those in which a defendant requests permission to discharge an attorney whose appearance has been entered. In Beard v. State, 42 Md.App. 276, 288, 399 A.2d 1383, cert. denied, 285 Md. 727 (1979), Judge Wilner speaking for this Court stated that the waiver inquiry was not applicable in situations of "hybrid representation." In Beard, supra, the defendant had been represented by counsel throughout the trial but asked at the time of closing argument to argue his case to the jury. Judge Wilner explained:

"This was not a waiver of counsel. Counsel had represented appellant throughout the trial and continued to represent him during his address to the jury and afterward. Rule 723 ¹ is simply not applicable to this situation. [Emphasis added.] The inquiry mandated by ... that Rule applies to a defendant's initial appearance and 'to any proceeding at which he appears without counsel thereafter.' [Emphasis supplied.] At best, appellant's address may have approached what has become known as 'hybrid representation'...." (Citations omitted.)

Id. at 288, 399 A.2d 1383.

Appellants in the case sub judice requested before trial to participate in varying degrees in their own defense. The question before this Court then is whether granting a request for a participatory role made on the morning of trial amounts to granting pro se representation or hybrid representation. To answer this question, we must look at the facts and circumstances surrounding the court's response to such a request. If the totality of circumstances indicates a defendant was granted the right to retain the assistance of counsel while assuming a role in his or her own defense, even though the court may term the right granted one of "self representation," the exact assistance granted may still be one of hybrid representation. The question is one of degree.

Several critical factors an appellate court should consider in deciding whether the court granted self-representation or hybrid representation include: the defendant's immediate and continuous accessibility to counsel; whether the defendant requests permission to or in fact discharges his or her counsel; whether and how often the defendant consults with counsel up to the point of the request; the stage at trial in which the defendant requests a participatory role; the magnitude of the role the defendant desires to assume; whether the trial court permits counsel to sit with appellant at counsel table thereby encouraging immediate and constant accessibility, or whether counsel instead is required to remain on the other side of the bar as an observer; what type and the amount of assistance of counsel that has been rendered up to the point of the request including substantive versus procedural aid; the apparent relationship between counsel and the defendant--an outwardly hostile, uncooperative relationship implies a greater degree of independence from counsel's advice and/or disdain for any advice given; and any other salient factors that envince a representation short of pro se representation.

Applying the above factors to the case sub judice, we hold appellants were not granted the right to exclusively represent themselves. Appellants requested hybrid representation at the beginning of the trial. Their remarks were consistent with a hybrid representation request. That is exactly what the court granted them. While the court characterized the right given as one of self-representation and performed a quasi waiver-of-counsel inquiry, this was a mischaracterization. It clearly granted them a participatory role at trial with attorney representation. The judge recognized that neither appellant ever discharged his counsel. He also had counsel remain at counsel table with appellants and encouraged appellants to consult with counsel throughout their trial. Hence, appellants were never without the advice and knowledge of counsel, although they remained free to accept or reject that advice.

The record of trial bears out the pervasive role the court permitted counsel to assume. Counsel prepared the voir dire, examined State evidence, secured witnesses, participated in bench conferences, and argued jury instructions, reinstructions and motions for judgments of acquittal. The role counsel performed was not merely that of a silent bystander, but instead was that of a substantive litigator. The record is replete with references to consultations between appellants and their attorneys and reflects numerous occasions in which counsel clarified for the court and jury the thrust of appellants' arguments. Counsel continued to represent appellants throughout their direct and cross-examinations and arguments to the jury.

In short, appellants were never without the assistance of counsel throughout their trial. Counsel served as a continuous, accessible source of legal advice. Thus, appellants' assertions that the court failed to conduct proper waiver inquiries are without merit.

In many ways, appellants got the best of both worlds--they were permitted to represent themselves, while retaining the assistance of counsel. They were granted more than they were entitled to under the federal and state constitutions. The court in its discretion could have required appellants to choose between the right to counsel and the right of pro se representation. Wilson, supra. Appellants cannot now complain because they received exactly what they requested--the assistance of counsel while conducting their own defense.

We do, however, point out that in cases in which a defendant asks to participate in some way in his or her own defense at any stage of a proceeding it is better form for the...