Hargett v. State
| Decision Date | 19 November 2020 |
| Docket Number | No. 1809,1809 |
| Parties | KIM HARGETT v. STATE OF MARYLAND |
| Court | Court of Special Appeals of Maryland |
Criminal Law > Pretrial Procedures > Request to Discharge Counsel
Meaningful trial proceedings had not commenced on the day of trial when the trial judge summoned the venire panel to the courtroom, but they had not arrived or entered the courtroom to begin jury selection when the defendant made a request to discharge counsel, making the procedural requirements of Md. Rule 4-215 mandatory.
Criminal Law > Pretrial Procedures > Request to Discharge Counsel
In assessing a defendant's request to discharge counsel, the trial judge should consider the following factors: (1) the merit of the reason for discharge; (2) the quality of counsel's representation prior to the request; (3) the disruptive effect, if any, that discharge would have on the proceedings; (4) the timing of the request; (5) the complexity and stage of the proceedings; and (6) any prior requests by the defendant to discharge counsel.
Criminal Law > Pretrial Procedures > Request to Discharge Counsel
Trial judge strictly complied with the mandatory requirements of Md. Rule 4-215 when he gave the defendant an opportunity to explain his reasons for wanting to discharge his attorney, implicitly found that the reasons lacked merit, and instructed the defendant that if he discharged his attorney, he would have to represent himself at trial beginning that day.
Circuit Court for Baltimore City
Case No. 509015028
REPORTED
Shaw Geter, Reed, Salmon, James P. (Senior Judge, Specially Assigned), JJ.
Opinion by Shaw Geter, J.
In 2009, Kim Hargett, appellant, was convicted by a jury sitting in the Circuit Court for Baltimore City of robbery, attempting to obstruct justice, and suborning perjury.1 The circuit court imposed a sentence of 25 years without the possibility of parole for robbery and concurrent sentences of five and ten years, respectively, for attempting to obstruct justice and suborning perjury. Appellant's convictions were affirmed on direct appeal. Kim Lee Hargett v. State, No. 1479, Sept. Term 2009 (filed Dec. 20, 2010), cert. denied, 418 Md. 587 (2011) ("Hargett I").
In 2019, the circuit court granted appellant's petition for post-conviction relief, permitting him to file a belated second direct appeal to raise a claim that had been omitted from his first direct appeal due to ineffective assistance of counsel. In this appeal, appellant asks one question, which we have rephrased as:
Did the circuit court err or abuse its discretion by denying appellant's request to discharge counsel on the first day of trial, prior to the commencement of jury selection?
For the following reasons, we answer that question in the negative and shall affirm the judgment of the circuit court.
The underlying facts pertaining to the charges against appellant are largely irrelevant to the sole issue on appeal and were fully set out in this Court's prior unreported opinion in the first direct appeal. Briefly, the charges against appellant arose from the robbery of an 84-year old man, Dr. Wilbur E. Favor, in East Baltimore. Hargett I at 1.Appellant accosted Dr. Favor as he got out of his car and stole his wallet. Id. at 1-2. The police arrested appellant the next day near Security Square Mall after he attempted to use Dr. Favor's credit card to make a purchase. Id. at 2-4. Appellant gave a statement to the police in which he claimed he had found Dr. Favor's wallet on Fayette Street when he was transferring between busses. Id. at 4-5. After Dr. Favor had identified appellant as his assailant from a photographic array and at a pre-trial hearing, he received a phone call from an unknown woman who told him he had "made a mistake" and that there were men who were friends with appellant who wanted to "'persuade [Dr. Favor] that [he] made a mistake.'" Id. at 5. Appellant's friend, Violet Williams, later testified at trial that she had called Dr. Favor, at appellant's request, and that appellant had directed her to ignore court summonses and to lie about where appellant told her he found the credit cards, which was different from what he told the police. Id. at 7.
Appellant, who was represented by an attorney from the Office of the Public Defender, appeared for a pretrial motion hearing on June 2, 2009. At the end of the hearing, the trial judge stated that jury selection would begin the next afternoon, at 2 p.m. Appellant attempted to speak to the court a minute later, saying, "Your Honor." The trial judge told him that he had a lawyer and to speak to his lawyer, not to the court. The proceedings then adjourned for the night.
The next afternoon, at 2:19 p.m., the parties appeared for trial.2 Before the case was called, the trial judge asked someone, in an apparent reference to the venire panel: "So, Santa Claus, when they going to get here?" The record does not reflect a response.
The State called the case and counsel introduced themselves. The court asked counsel if they had reviewed "each other's Voir Dire" and they each replied in the affirmative. At that moment, appellant interjected: "Your Honor, I'm trying to waive my counsel." The following colloquy ensued:
After appellant had been sworn, the court inquired as to his age, his education level, his mental health, and whether he was under the influence of drugs or alcohol. The court then advised appellant about the charges against him and the maximum penalties that could be imposed on some of the charges. The court further advised appellant about the assistance an attorney could provide at trial, including determining whether to elect a benchtrial or a trial by jury; assisting with the selection of a jury; objecting to inadmissible evidence at trial; advising appellant as to whether to testify in his case; and deciding whether and whom to call as witnesses in his defense.
The trial judge explained that he could not "force [appellant] to have a lawyer but I think Shakespeare is right when he says, anybody who represents themselves has a fool for a client." If appellant "insist[ed]" on discharging his counsel, the court emphasized that his "case would not be postponed" and appellant would "have to pick the jury on [his] own . . . [and] represent [himself] in trial." After confirming that appellant understood, the court inquired "And what is your pleasure?" The following ensued:
(Emphasis added.)
Appellant then explained that four months earlier, in February 2009, defense counsel had met with Dr. Favor's private attorney and "spoke to him personally about [appellant's] case." After appellant learned of this meeting, he expressed to defense counsel that he was unhappy about that decision and wrote to defense counsel's supervisor to complain. The supervisor wrote back to appellant and advised that she was "not going to do anything about it."
The trial judge interjected, inquiring why appellant believed defense counsel's actions were "improper[,]" noting that it would have been "borderline incompetency" if defense counsel had not spoken to "the witnesses on the other side, especially a victim." The court added that if Dr. Favor was represented by counsel, defense counsel was not permitted under the Maryland Attorneys' Rules of Professional Conduct ("MARPC") to speak to him directly without his attorney's knowledge and consent.3
Appellant explained that it was his understanding that defense counsel could speak to the Assistant State's Attorney about the case, but not to the victim's private attorney, adding, "I thought the private counsel was something totally different from dealing with the State." The trial judge responded that it was "a courtesy thing and, as well as ethical" for an attorney to ask permission to speak to the client of another attorney. The court added that defense counsel was obligated to investigate on behalf of appellant.
Appellant asked to put on the record that his attorney was "biased and he's prejudice[d] against me." Specifically, he characterized defense counsel's manner towards him as "salty." He explained:
They got some tapes over at Towson, and on the tapes I was mentioning that if [Dr. Favor] had passed away - he said if [Dr. Favor] passed away, the case would be over with. And I think he heard it as well as the State heard that. And he's been salty against me ever[] since.
The colloquy that followed reflects that the trial judge may have misunderstood appellant to be saying that defense counsel made the remark about Dr. Favor dying:
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