Fowlkes v. State

• Decision Date: 01 September 1986
• Docket Number: No. 61,61
• Citation: 311 Md. 586,536 A.2d 1149
• Parties: Jeffrey FOWLKES a/k/a Anthony Johnson v. STATE of Maryland. ,
• Court: Maryland Court of Appeals

Page 586

311 Md. 586

536 A.2d 1149

Jeffrey FOWLKES a/k/a Anthony Johnson v. STATE of Maryland.

No. 61, Sept. Term, 1986.

Court of Appeals of Maryland.

Feb. 10, 1988.

Victoria S. Keating, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Ann E. Singleton, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., on the brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH, ^* and McAULIFFE, JJ., and MARVIN H. SMITH, Associate Judge of the Court of Appeals of Maryland (retired), Specially Assigned.

ELDRIDGE, Judge.

The Sixth Amendment to the United States Constitution and Article 21 of the Maryland Declaration of Rights provide that, in all criminal prosecutions, a defendant has the right to the assistance of counsel. Nonetheless, a defendant may waive the right to counsel, provided "he knows what he is doing and his choice is made with his eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942).

Under the Sixth Amendment, a defendant also has an independent right to reject the assistance of counsel and to elect to represent himself. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975). A defendant may exercise his Faretta right of self-representation only if he knowingly, intelligently, and voluntarily waives his right to counsel. Parren v. State, 309 Md. 260, 266, 523 A.2d 597, 599-600 (1987). If a defendant waives the right to counsel and asserts his Faretta right of self-representation, the trial court must permit him to represent himself. See Faretta, supra, 422 U.S. at 836, 95 S.Ct. at 2541, 45 L.Ed.2d at 582; Snead v. State, 286 Md. 122, 130, 406 A.2d 98 (1979).

The interplay among the right to counsel, waiver of the right to counsel, and the Faretta right of self-representation, has posed problems when, shortly before or at the beginning of trial, a defendant makes an unmeritorious demand for the discharge of current counsel and for the appointment or retention of different counsel, and where, as is usually the situation, the appointment or retention of new counsel would require a trial postponement. If the trial judge properly refuses to grant such demand, a defendant will often attempt to delay the proceedings by refusing either to proceed with current counsel or to make an affirmative election of his Faretta right of self-representation. In such circumstances, where a postponement would be improper, the trial judge is faced with the dilemma of forcing the defendant to trial without an attorney or forcing the defendant to proceed with an unwanted attorney.

In 1975, in State v. Renshaw, 276 Md. 259, 267, 347 A.2d 219, 225 (1975), this Court held that, in these circumstances, the defendant's demand for different counsel does not constitute a waiver of the Sixth Amendment right to counsel. The Court took the position that, under the federal Constitution, the trial court must require current counsel to continue providing legal representation in this situation, notwithstanding the defendant's objections (276 Md. at 270, 347 A.2d at 227). In 1984, we promulgated Maryland Rule 4-215(e), ¹ which permits a trial court, in some circumstances, to treat such a demand as a waiver of the right to counsel and to require the defendant to represent himself. The principal question in this case concerns the validity of the rationale underlying Renshaw, and the apparent conflict between Renshaw and provisions of Rule 4-215(e).

I.

The pertinent facts are as follows. On July 2, 1984, the State filed a criminal information against the defendant Jeffrey Fowlkes, charging him with having unlawfully possessed narcotics paraphernalia. On August 28, 1984, the defendant appeared before the Circuit Court for Baltimore City, which set a trial date. At that time, the defendant was unrepresented by counsel and signed a "Notification of Right to Counsel." ² The defendant appeared for trial on December 6, 1984, but the court postponed his case because of a crowded docket. At that time, he was represented by an attorney from the Office of the Public Defender. After purporting to "waive" the statutory requirement that a circuit court criminal defendant ordinarily be tried within 180 days, ³ the defendant again appeared for trial on March 13, 1985; an Assistant Public Defender, Bridget Shepherd, was present representing him.

At the beginning of the trial proceedings, the State offered a plea bargain agreement. Under this agreement, in exchange for a guilty plea, the State would recommend a maximum sentence of thirty days imprisonment to be served concurrently with a term of imprisonment that the defendant was then serving. Ms. Shepherd attempted to place it on the record that the defendant had rejected her recommendation to accept this agreement. The trial court inquired as to whether the defendant understood that, if tried and convicted, he could receive up to a maximum of four years imprisonment. The defendant replied that he knew what he was doing.

As the parties awaited the arrival of the potential jurors, Ms. Shepherd began to argue a motion in limine on the defendant's behalf. While Ms. Shepherd was addressing the court, the defendant interrupted, stating that Ms. Shepherd did not have "the true evidence." ⁴ The judge instructed the defendant to address the court through his attorney, but the defendant responded: "I don't think she is any help to me anyway. If possible I would rather get rid of her, get new attorney." The judge assured the defendant that his attorney was "highly competent" and "could represent [him] well." The transcript then shows the following exchange:

"THE COURT: All right. Now, are you telling me that you do not want Miss Shepherd to represent you any more?

MR. FOWLKES: Yes.

THE COURT: Do you wish to represent yourself?

MR. FOWLKES: No. I'd rather have a private attorney, or get another attorney, because I feel as though the offer I have been offered today, I don't feel this attorney going to be any help to me.

THE COURT: I don't think it is going to be possible, but I will ask Miss Shepherd if another Public Defender can come over. Is that possible?

MS. SHEPHERD: I can call my office.

THE COURT: I am not postponing this case simply because you don't want Miss Shepherd to represent you. You can represent yourself.

MR. FOWLKES: I am not representing myself neither. I want somebody who knows legal law, what's going on with the case, which she is not doing."

Ms. Shepherd succeeded in obtaining the appearance of another Assistant Public Defender, Stanley Janor. When Mr. Janor arrived, the trial judge announced a recess, but advised the defendant that at the end of the recess he would have to decide whether he wanted Mr. Janor to represent him. "[I]f not," the judge warned, "you are going to have to represent yourself, because we are going to try this case today."

When the proceedings resumed, Mr. Janor stated that the two Assistant Public Defenders had told the defendant that they would represent him but that Ms. Shepherd would have to serve as lead counsel, with Mr. Janor assisting her in certain phases of the trial. Mr. Janor reported that the defendant had objected not only to that arrangement but also to the trial going forward under any circumstances.

At that point, the defendant interrupted. In a lengthy monologue, he claimed to have money to hire a private attorney, repeated his charge that the two Assistant Public Defenders did not have "the true facts," and complained that one of his witnesses had not appeared. Ms. Shepherd immediately responded that her office had summoned all three of the defendant's witnesses, that two had appeared, and that the third was absent only because the defendant had not provided an accurate address. The transcript then shows that the following occurred:

"THE COURT: ... [S]ince you don't want Ms. Shepherd to represent you now, you have a right to discharge your attorney. And I am looking at the Maryland Rules right now ..., which give you the right to discharge your attorney.

MR. FOWLKES: Right.

THE COURT: I have the right though to determine whether your reason for discharging your attorney is meritorious. And we did offer you the possibility the Public Defender's Office offered you a possibility of having Mr. Janor join Ms. Shepherd, and you are now telling me you are turning down that offer. Is that right?

MR. FOWLKES: Yes.... [I]t seems that the evidence they got, or where they suppose to be representing me to help me, it don't show somewhere in fact that I could be represented by them on behalf of honesty. The way it go in the case, it don't seem right. I rather go ahead get a private attorney. Go through the record. I feel they haven't had enough time to work on my case. They probably look like the case, seen like similar circumstances, evidence, nature of crime don't add up to the folders up out front.

THE COURT: Well, Mr. Fowlkes, you were indicted on July 2nd, 1984 in Criminal Information or--

MR. JANOR: A warrant case.

THE COURT: And you appeared for arraignment on August 29th, 1984.

MR. FOWLKES: Uh-huh.

THE COURT: It appears to me that you have had plenty of time to obtain counsel of your choice, and that Ms. Shepherd has had plenty of time to prepare this case, and is ready to try the case, and is prepared to try the case, and that your summonses, your witnesses have been summonsed. That one witness was not summonsed because the address was a bad address, and I can find no meritorious reason for you wanting to discharge your counsel, but I can't force you to have counsel that you don't want to have. So the only choice you have, as I see it, and I would like either counsel in the case to correct me, or any counsel correct me if I am wrong, is that you are deciding to defend yourself, because I am going to try this case today?

MR. FOWLKES: No possible way I...