Harris v. State

• Decision Date: 21 January 1997
• Docket Number: S,No. 148,148
• Citation: 344 Md. 497,687 A.2d 970
• Parties: Stephen HARRIS v. STATE of Maryland. ept. Term 1995.
• Court: Maryland Court of Appeals

Page 497

344 Md. 497

687 A.2d 970

Stephen HARRIS v. STATE of Maryland.

No. 148, Sept. Term 1995.

Court of Appeals of Maryland.

Jan. 21, 1997.

George E. Burns, Jr., Asst. Public Defender (Stephen E. Harris, Public Defender; Mark Colvin, Asst. Public Defender, on brief), Baltimore, for Petitioner.

Gwynn X. Kinsey, Jr., Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, Paul Victor Jorgensen, Middletown, for Respondent.

Argued before MURPHY, C.J., ^* and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

BELL, Judge.

This case presents the issue of whether, after the Office of Public Defender ("OPD") has been permitted to withdraw as counsel, a trial court may order, consistent with Md.Code (1957, 1993 Repl.Vol.1995 Cum.Supp.) Article 27A, the OPD to serve as standby counsel for a defendant, who it has found has voluntarily and knowingly waived his right to representation and elected to proceed pro se. The Circuit Court for Frederick County so ordered and the Court of Special Appeals, noting the trial court's discretion to appoint standby counsel to avoid a "fractious, inefficient, and potentially unfair trial," affirmed that judgment. Harris v. State, 107 Md.App. 399, 420, 668 A.2d 938, 948 (1995). For the reasons that follow, we shall reverse.

I.

When in the underlying criminal action, Bruce Wayne Koenig, was charged with the first degree murders of his parents, attorneys supplied by OPD, namely the District Public Defender and an assistant from the Frederick County Office, entered their appearances as his counsel. The State having filed notice of its intention to seek sentences of death and life imprisonment without the possibility of parole, they struck their appearances and the Chief of the OPD's Capital Defense Division entered his. Thereafter, a panel attorney supplied by OPD entered her appearance as co-counsel.

Proceeding pro se, Koenig moved to discharge his counsel and asked the court to appoint new counsel. He alleged that, in some respects, his attorneys had failed to conduct discovery and did not pursue investigative leads that they were given. At the hearing the trial court held on his motion, Koenig identified witnesses and records that had not been either interviewed or examined. He additionally informed the court that he and counsel had "some fundamental differences on how the case should be handled," noting also that he desired to be "actively involved in the case," in the questioning and interviewing of the witnesses. Further, Koenig concluded:

We'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 [counsel].

Finding "no meritorious reason whatsoever for you to discharge these attorneys," the trial court explained to Koenig that, should he persist in his intention to discharge counsel, he would be required either to hire his own attorney, which Koenig professed to be unable to afford, or represent himself. ¹ When Koenig indicated that he nevertheless was inclined to discharge counsel, the trial court apprised Koenig of and, in fact, stressed, the disadvantages and pitfalls of self-representation, particularly in a capital case. In short, it was clear from the court's advice that it believed, and communicated to Koenig, that, in this case, proceeding pro se would be to Koenig's detriment. The trial court also continued the hearing to allow Koenig time to think about his decision and its consequences.

At the continued hearing, Koenig persisted in his intention to discharge counsel. At the same time, however, he made a supplemental request ²: he asked the court to appoint standby counsel--"someone who would sit with him, provide him legal advice and [Koenig] would drive the case, that is determine what [is] to be done." ³ After exhaustively examining Koenig with respect to his decision to discharge counsel and proceed pro se ⁴, the trial court found that Koenig's "motion to discharge counsel is freely, voluntarily and understandingly made" and that he "knowingly and intelligently" elected to represent himself, "with the assistance of standby counsel." Accordingly, it issued an order striking counsel's appearance as counsel for Koenig, but directing OPD to provide standby counsel for Koenig.

OPD's appeal of the circuit court's order was unsuccessful. The Court of Special Appeals, as we have seen upheld the trial court's order requiring the OPD to provide standby counsel. We granted the OPD's Petition for Certiorari to determine whether Art. 27A does vest the trial court with such discretionary authority where that office's representation has been effectively waived by a defendant who has knowingly, voluntarily and intelligently elected to represent himself, albeit with the assistance of standby counsel.

II.

The petitioner asserts that a defendant has no constitutional right to standby counsel. He argues that a defendant has no statutory right to standby counsel under Art. 27A and maintains that the trial court has no authority under Art. 27A to require the OPD to provide such form of representation. The State, however, contends that a defendant has a constitutional right to standby counsel and argues that Art. 27A provides statutory entitlement to such representation and authorizes the court to require the OPD to represent Koenig in that capacity. It further asserts that the court's authority to require OPD to provide standby counsel is derived from the court's power to control a withdrawal by counsel of record, pursuant to Md. Rule 4-214. ⁵ Koenig argues that standby counsel is a form of legal representation to which he is entitled under Art. 27A.

III.

It is well established that, pursuant to the Sixth Amendment to the United States Constitution ⁶ and Article 21 of the Maryland Declaration of Rights ⁷, a defendant in a criminal trial is entitled to the effective assistance of counsel. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562, 566 (1975); Parren v. State, 309 Md. 260, 262-63, 523 A.2d 597, 598 (1987); Rutherford v. Rutherford, 296 Md. 347, 357, 464 A.2d 228, 234 (1983). The United States Supreme Court has held that "[t]he Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense," Faretta, 422 U.S. at 819, 95 S.Ct. at 2532, 45 L.Ed.2d at 572. See also McKaskle v. Wiggins, 465 U.S. 168, 170, 104 S.Ct. 944, 947, 79 L.Ed.2d 122, 128 (1984), aff'd on remand, 729 F.2d 1026 (5th Cir.Tex.1984), on reconsideration, 753 F.2d 1318 (5th Cir. Tex 1985), thus recognizing the right to self-representation as an independent right that is implicit in the protection afforded by that amendment. That does not mean, however, that a defendant is entitled to exercise both at the same time. Faretta made clear that the Sixth Amendment right to counsel only guarantees "a choice between representation by counsel and the traditional practice of self-representation." 422 U.S. at 825, 95 S.Ct. at 2536, 45 L.Ed.2d at 576. This Court was more explicit in Parren, 309 Md. at 262, 523 A.2d at 598 (quoting Leonard v. State, 302 Md. 111, 119, 486 A.2d 163, 166 (1985)), when we said: "The [two] rights are 'mutually exclusive and the defendant cannot assert both simultaneously,' " see also United States v. Nivica, 887 F.2d 1110, 1121 (1st Cir.1989) cert. denied, 494 U.S. 1005, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990), and later reiterated, " '[a] criminal defendant does not have an absolute right to both self-representation and the assistance of counsel.' " Parren, 309 Md. at 265, 523 A.2d at 599 (quoting United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir.1981) (emphasis in original)). To avail him or herself of the right of self representation, a defendant must knowingly and voluntarily waive the right to counsel. The mechanism by which the courts attempt to ensure that waivers of counsel are voluntarily made is Maryland Rule 4-215.

At issue in Parren was whether the defendants had validly waived counsel. Before reaching that issue the Court considered whether they were constitutionally entitled to have "hybrid representation," that is, to act during the conduct of the trial as co-counsel with their lawyer. This Court expressly rejected "hybrid representation" as a third form of representation to which criminal defendants are constitutionally entitled, Parren, 309 Md. at 265, 523 A.2d at 599, opining along the way that "the concept of hybrid representation as a 'sharing in the awesome responsibilities of defending a criminal charge'... is impracticable and inadvisable...." 309 Md. at 270, 523 A.2d at 601-602 (quoting, Bright v. State, 68 Md.App. 41, 47, 509 A.2d 1227, 1230 (1986)). We explained that "there can be but one captain of the ship, and it is he alone who must assume responsibility for its passage, whether it safely reaches the destination charted or founders on a reef." Parren, 309 Md. at 264, 523 A.2d at 599. In our rejection of hybrid representation, we pointed out that this

does not mean that ... a defendant appearing pro se may not have a lawyer participate to any extent in the trial. Such participation may be permitted in the discretion of the presiding judge under his general power to control the conduct of the trial.... But in either case the participation never reaches the level of "representation" nor does the participant attain the status of "co-counsel." When a defendant appears pro se, it is he who calls the shots albeit, perhaps, with the aid, advice and allocution of counsel in the discretion of the trial judge.

Id. at 265, 523 A.2d at 599 (citation omitted). We thus recognized the discretion of a trial court to permit an attorney to assist a defendant's exercise of the right of self-representation, and, as the intermediate appellate court noted, to assist "the court in maintaining some measure of...