Briscoe v. State
| Decision Date | 07 April 1992 |
| Citation | 606 A.2d 103 |
| Parties | Clarence E. BRISCOE, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted: |
| Court | Supreme Court of Delaware |
Upon appeal from the Superior Court. REVERSED.
Timothy N. Collins, Asst. Public Defender, Wilmington, for appellant.
Loren C. Meyers, Deputy Atty. Gen., Wilmington, for appellee.
Before HORSEY, WALSH, and HOLLAND, JJ.
The defendant-appellant, Clarence Briscoe ("Briscoe"), was convicted, following a jury trial in the Superior Court, of one count of Delivery of Cocaine. 16 Del.C. § 4751. On March 8, 1991, the Superior Court sentenced Briscoe to a period of incarceration for thirty years, to be suspended for probation after Briscoe has served a mandatory minimum term of incarceration for fifteen years. See 16 Del.C. § 4763. This is Briscoe's direct appeal.
In this appeal, Briscoe contends that he did not knowingly and intelligently waive his Sixth Amendment right to counsel. Specifically, Briscoe argues that the Superior Court committed reversible error when it permitted him to proceed pro se without advising him of the hazards of self-representation. The record reflects that the procedural prerequisites to an effective waiver of the Sixth Amendment right to counsel, as mandated by the federal courts, were not followed. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); United States v. Welty, 674 F.2d 185 (3d Cir.1982); United States ex rel. Axselle v. Redman, 624 F.Supp. 332 (D.Del.1985). Accordingly, the judgment of the Superior Court must be reversed.
On the day of his trial, after the jury had been selected, Briscoe expressed his dissatisfaction with his attorney, an Assistant Public Defender, who had been appointed to represent him at trial. Briscoe told the trial judge that his attorney "lied constantly," was collaborating with the prosecutor, and had previously permitted the trial to be continued without Briscoe's permission. Briscoe also stated that he had filed a lawsuit against his attorney and the Public Defender's Office as a result of their alleged unethical representation of him. Briscoe concluded his vitriolic remarks by informing the trial judge that he did "not wish any representation from the Public Defender's Office."
In response to these allegations, Briscoe's attorney acknowledged that his relationship with Briscoe was acrimonious. According to the Assistant Public Defender, the difficult relationship between them had developed because Briscoe, against the attorney's advice, wanted to subpoena the Mayor of Wilmington and the head of the Department of Parks and Recreation to testify, in order to develop Briscoe's theory of a conspiracy. Briscoe also wanted to present an entrapment defense, which the attorney believed would not be supported by the evidence.
After determining that Briscoe lacked good cause for substituted counsel, the trial judge denied his request. Briscoe was told that the trial would proceed with his appointed counsel representing him. Before the jury was brought in, Briscoe's appointed attorney asked for clarification:
Does--did he implicitly make a request to cross-examine the witnesses or no?
THE COURT: He has not.
Mr. Briscoe, are you going to request that you cross-examine the witness or are you going to let [your attorney] do it for you?
You have made some wild allegations that have absolutely no substance. The issue we have before us right now: Do you wish to have [your attorney] cross-examine the witnesses on your behalf?
The trial judge again instructed the bailiff to bring in the jury. However, Briscoe immediately interrupted that process with a question:
Notwithstanding this colloquy, there is no other evidence in the record that, prior to the commencement of trial, Briscoe ever requested to represent himself. Consequently, the record indicates that the trial judge did not warn Briscoe before trial about the dangers of self-representation. Nevertheless, although Briscoe's appointed counsel made an opening statement to the jury on Briscoe's behalf, the trial proceeded thereafter with Briscoe acting as his own attorney and his appointed attorney serving as standby counsel.
Briscoe himself conducted the cross-examination of each prosecution witness during the presentation of the State's case-in-chief and made objections to the State's evidence. Briscoe's appointed attorney also made several evidentiary objections and moved for a directed verdict at the close of the State's case. Following the presentation of the State's case, the Superior Court acceded to Briscoe's requests to call his own defense witnesses and to conduct the direct examination of those witnesses.
One of the witnesses called by Briscoe was Detective Lawrence Collins ("Detective Collins") of the Wilmington police department. Detective Collins, who was involved in the investigation that led to Briscoe's arrest, had not been called as a witness by the State during its case-in-chief. During the direct examination of Detective Collins, Briscoe elicited evidence of his own prior criminal record. At that point, the trial judge ordered the jury out of the courtroom. The judge warned Briscoe, on the record, that Briscoe was "hanging" himself, and that "by asking stupid questions" of Detective Collins, he was allowing the "witness to nail [him] to the cross."
Briscoe next called as a defense witness Reginald Harris ("Harris"), the informant who allegedly arranged for the police to obtain cocaine from Briscoe. During the direct examination of this witness, Briscoe became emotionally distraught. After a brief recess, and an unreported sidebar conference, the trial judge refused to allow Briscoe to resume the direct examination of Harris and, instead, instructed Briscoe's appointed counsel to complete that task. Nevertheless, the trial judge's summary of this unreported sidebar conference indicates that the trial judge instructed Briscoe's appointed attorney to ask questions of Harris under Briscoe's direction.
Subsequently, the trial judge allowed Briscoe to testify in narrative form. During his testimony, Briscoe admitted delivering cocaine. The only testimony Briscoe offered in contradiction to the State's case was that he had not delivered cocaine to the undercover police officer, as the State had alleged, but instead had delivered the cocaine to Harris. Briscoe stated that he had engaged in such conduct out of friendship for Harris.
Prior to the presentation of Briscoe's case, the Assistant Public Defender had informed the trial judge that Briscoe intended to make his own closing argument. After Briscoe rested his case, but before closing arguments, at the request of Briscoe's appointed attorney, the trial judge engaged in the following colloquy with Briscoe:
Following a prayer conference, the trial judge ruled that he would not give the jury an instruction on the defense of entrapment because Briscoe had failed to present any evidence that he was induced to deliver cocaine by a law enforcement officer. The trial judge then allowed Briscoe's appointed counsel to make an argument, on the record, as to why Briscoe should be permitted to reopen his case to present testimony that would support an entrapment instruction. The motion to reopen Briscoe's case was denied. Briscoe was convicted as charged.
When a defendant seeks new counsel, on the eve of trial, the trial court must engage in a careful inquiry. The trial court must initially determine if the reasons for the defendant's request for substitute counsel constitute good cause to justify a continuance of the trial, in order to allow new counsel to be obtained. United States v. Welty, 674 F.2d 185, 187 (3d Cir.1982). If the trial court determines that the defendant is not entitled to a continuance, in order to engage new counsel, the defendant must then choose between two constitutional options, either continuing with his existing counsel or proceeding to trial pro se. Id. 1 The latter choice necessitates the careful pursuit of a second line of inquiry by the trial court. Id.
The decision to proceed pro se...
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