Harris v. State

• Decision Date: 01 September 1995
• Docket Number: No. 1094,1094
• Parties: Stephen HARRIS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 399

107 Md.App. 399

668 A.2d 938

Stephen HARRIS v. STATE of Maryland.

No. 1094, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Dec. 26, 1995.

George E. Burns, Jr., Assistant Public Defender (Stephen E. Harris, Public Defender, and Mark Colvin, Assistant Public Defender, on the brief), Baltimore, for appellant

Gwynn X. Kinsey, Jr., Assistant Attorney General (J. Joseph Curran, Jr., Attorney General, on the brief), Baltimore, Paul Victor Jorgensen, Middletown, for appellee.

Bruce W. Koenig, Intervenor.

Argued before WILNER, C.J., and BLOOM and HOLLANDER, JJ.

WILNER, Chief Judge.

The issue before us is whether the Circuit Court for Frederick County erred in directing that the Office of the Public Defender serve as "standby counsel" for a defendant who is eligible for representation by the Public Defender, whom the Public Defender is willing to represent, but who has effectively waived his right to the assistance of counsel in accordance with Md.Rule 4-215. We shall hold that the court did not err.

UNDERLYING FACTS

On August 5, 1994, in a 10-count indictment, Bruce Koenig was charged with two counts of murder, several handgun The District Public Defender, Franklin Stillrich, and his assistant, John Chillas, entered their appearances on August 10 by filing pleas on behalf of Koenig of not guilty, not criminally responsible, and not competent to stand trial. By reason of the latter two pleas, the court ordered that Koenig be examined by the Department of Health and Mental Hygiene. Pending that examination, Mr. Stillrich filed a number of motions and sought and received substantial discovery from the State. ¹

violations, armed robbery, and theft. The indictment stems from an allegation that, on June 20, 1994, Koenig robbed and murdered his parents.

On December 9, 1994, the State filed a notice of its intention to seek the death penalty, or, in the alternative, life imprisonment without parole. On February 13, 1995, as a result of those notices, Mr. Stillrich and Mr. Chillas struck their appearances and entered instead the appearance of Thomas Saunders, of the Public Defender's Capital Defense Division. Two days later, the additional appearance of Wendy Zerwitz--apparently a panel attorney selected by the Public Defender--was entered as co-counsel with Mr. Saunders.

On June 30, 1995, Koenig filed a pro se motion to dismiss Mr. Saunders and Ms. Zerwitz and to appoint new counsel for him. He alleged in his motion that his current attorneys had failed in several respects to conduct discovery and properly investigate the case. At a hearing on the motion held on July 12 before Judge Dwyer, Koenig stated that he and Mr. Saunders had "some fundamental differences on how the case should be handled" and that he wanted to be "actively involved in the case," including the right to question and interview witnesses. He told the court that "[w]e've just gotten to a point where we are not able to be in agreement on anything on the case. The trust, confidence I think on both parts, has broken down and I cannot work with him." In response to the Mr. Saunders responded that he and Ms. Zerwitz had met with Koenig 13 times, that they had reviewed with him all relevant documents and given him copies of most of them, and that they had made an adequate investigation. The court accepted that response and found as a fact that there was "no meritorious reason whatsoever for you to discharge these attorneys." The court then warned Koenig that if he proceeded to discharge the attorneys, he would either have to hire an attorney, which Koenig had said he could not afford to do, or proceed on his own. Koenig responded that he wished to proceed on his own, perhaps attempt to obtain private counsel.

court's questions, he identified a number of witnesses that had not been interviewed and certain records that had not been examined.

The court thereupon warned Koenig again that, if the court allowed him to dismiss Mr. Saunders and Ms. Zerwitz, he would be required to proceed without an attorney, noting that a suppression hearing was scheduled in August and trial was set for September. Koenig asked for a few days to consider the matter.

When the hearing resumed on July 17, Koenig asked the court to allow a "hybrid defense." Noting that such a defense was not available in Maryland, Mr. Saunders suggested that what Koenig really wanted was a "standby counsel," i.e., "someone who would sit with him, provide him legal advice and he would drive the case, that is determine what [is] to be done." Koenig added that he needed "to understand the technical points, to know when objections are appropriate and when they're not, what is admissible and what should not be admitted" but that he wanted to have a more active role in his case "in determining how we're going to proceed, who's going to be called as witnesses, what the nature of the defense is going to be."

After further discussion regarding the role of counsel, Koenig asked "to proceed with what's been referred to as standby counsel, so I can have a much more active part in the conduct of the trial." Specifically, he wanted to be able to address the The court thereupon conducted a waiver inquiry pursuant to Md.Rule 4-215. That inquiry revealed that Koenig had been hospitalized for mental problems in 1983, 1985, and 1986, for about a month each time, in a Veteran's Administration hospital in Texas. One diagnosis was manic depression, for which he had taken lithium. He was under psychiatric care as well in 1989 during an incarceration in Texas. Koenig said that he stopped taking the lithium in 1993. The court, for at least the third time, warned Koenig that, if Mr. Saunders and Ms. Zerwitz were discharged, he may not ultimately get standby counsel and that, if he did, counsel would be assigned by the Public Defender's Office, that standby counsel may have no funds for investigative work and that even the Public Defender, if chosen as standby counsel, would not be doing investigative work.

                jury and question witnesses.  Standby counsel would also be able to question witnesses and would be there "to instruct and advise and assist me on the legal technicalities, the points of law that I am not aware of at this point."   Mr. Saunders noted that standby counsel had been provided by the Public Defender in other cases, mentioning in particular that of Anthony Grandison (see Grandison v. State, 305 Md. 685, 506 A.2d 580, cert. denied, Grandison v. Maryland, 479 U.S. 873, 107 S.Ct. 38, 93 L.Ed.2d 174 (1986), and Grandison v. State, 341 Md. 31, 668 A.2d 889).   The State asked the court to grant Koenig's request
                

At the end of the questioning and discussion, Koenig again asked that counsel be discharged and that standby counsel be appointed. The court was presumably aware from the State's response to discovery that the State intended to call about 70 witnesses at trial. It found that Koenig's motion was freely and voluntarily made and, both orally from the bench and in an order filed July 28, 1995, struck the appearances of Mr. Saunders and Ms. Zerwitz, found that Koenig had knowingly and intentionally waived his right to counsel, but directed the Office of the Public Defender "to provide standby counsel at the trial of this matter."

On August 16, the Office of the Public Defender appealed the order directing it to provide standby counsel, eventually naming Judge Dwyer as the appellee. We granted Koenig's motion to intervene in the appeal.

DISCUSSION

The Issues

The five-page brief filed by the Public Defender on the merits makes essentially two assertions: that a court has no authority to require the Public Defender to provide representation and that there is no right, in any event, to hybrid representation. For the first proposition, it cites Thompson v. State, 284 Md. 113, 394 A.2d 1190 (1978); Baldwin v. State, 51 Md.App. 538, 444 A.2d 1058 (1982); and State v. Miller, 337 Md. 71, 651 A.2d 845 (1995); for the second, it cites Parren v. State, 309 Md. 260, 523 A.2d 597 (1987).

The State has moved to dismiss the appeal on a number of procedural grounds. On the merits, it seeks to narrow the issue. It points out that Koenig is indigent and is therefore eligible for representation by the Public Defender, that the Public Defender indeed entered an appearance for Koenig and is willing to represent him in the traditional manner as counsel, and that the court has general inherent authority to appoint standby counsel. The only question it sees raised in the appeal is whether there is anything in Md.Code, art. 27A--the statute creating the public defender system and setting forth the powers and duties of the Public Defender--that precludes the court from appointing the Public Defender as standby counsel.

Motion To Dismiss

The State conceded, for purposes of its motion to dismiss, that the Office of the Public Defender, listed as the appellant, has standing to pursue the appeal, even though it was technically not a party to the underlying case in the circuit court. We agree. The order appealed from directed specific action on appellant's part that presumably will have a fiscal and operational impact on the Office. The State also concedes that the pursuit of this appeal does not amount to an impermissible conflict of interest between the Office and Koenig. We agree with that as well. The appearances of the public defenders have been stricken, and there is, therefore, at this point, no clear attorney-client relationship from which a conflict could arise. The issue is whether the court is empowered to create a lesser form of such a relationship.

The State's motion seems to be based on the fact that, (1) after the appeal was noted, Koenig moved to substitute a private attorney as standby counsel, and (2) the case in circuit court is not over, and no final judgment has been entered. The first point is now moot. We are told that Koenig has withdrawn his motion for private counsel. Thus,...