Renshaw v. State

• Decision Date: 17 March 1975
• Docket Number: No. 610,610
• Citation: 333 A.2d 363,25 Md.App. 270
• Parties: David Herbert RENSHAW v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 270

25 Md.App. 270

333 A.2d 363

David Herbert RENSHAW v. STATE of Maryland.

No. 610.

Court of Special Appeals of Maryland.

March 17, 1975.

H. Michael Hickson, Assigned Public Defender, for appellant.

Alexander L. Cummings, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen. and Donaldson C. Cole, Jr., State's Atty. for Cecil County on the brief, for appellee.

Argued before POWERS and LOWE, JJ., and JOHN C. ELDRIDGE, Special Judge.

LOWE, Judge.

There is an increasing number of disturbing cases where a defendant's right to representation by counsel appears to be manipulated as a stratagem to induce reversible error. ¹ After counsel has been appointed to defend him, the indigent awaits the day of trial before discharging that counsel in open court. Thereupon he prevails upon the court to appoint new counsel or continue the case to permit obtention of new counsel privately or through the Public Defender's office.

The trial judge, often with a jury empanelled, is caught between the Charybdis of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, requiring counsel for indigent defendants and the Scylla of Conway v. State, 15 Md.App. 198, 223, 289 A.2d 862, cert. denied, 266 Md. 735; 413 U.S. 920, 93 S.Ct. 3070, 37 L.Ed.2d 1042, wherein we held that right did not mean the indigent could pick and choose. With a jury in the box, witnesses subpoenaed and both sides prepared for trial the court will frequently deny the continuance and proceed with the case.

Such were the facts when David Herbert Renshaw was brought before the Circuit Court for Cecil County and called to account on charges of escape and assault and battery. When the case was called the defense attorney advised the judge:

'. . . Mr. Renshaw advised me this morning, first of all, he doesn't feel that I have properly advised him of his pre-trial rights. He wants a change of venue. He said that he also wants to plead guilty by reason of insanity-

THE COURT: Not guilty?

MR. BATHON: Not guilty, beg your pardon. Thank you for the correction. And also he would like to have new counsel appointed this morning. I advised you of those in chambers. I am quite upset about it because it is the first indication I have had of any dissatisfaction was this morning when I walked into the Bar Library.'

After considerable deliberation the judge decided to deny the continuance and declined to 'appoint new counsel.' He told appellant that:

'. . . What the Court will do is have Mr. Bathon stand by and you, if you desire to make any use of Mr. Bathon, that is entirely up to you. You do not have to use him. You can conduct your own case if you would like. We certainly are not forcing him upon you, but he will be available if you need him for anything and if you do not need him for anything, please just disregard his presence.'

The court assisted by advising appellant on procedural matters including striking the jury, after which the State's Attorney delivered his opining statement. When Mr. Bathon, discharged by appellant, asked appellant in open court if he desired him 'to make an opening statement' on his behalf the judge said:

'Gentlemen, come up a minute with the Reporter.'

Out of the presence of the jury, he said:

'Gentlemen, Mr. Bathon, I realize what an awkward position you are in and I will explain to the Jury after the case is all over that Mr. Renshaw has elected to proceed without your help. But, if I were you, I would not do anything unless Mr. Renshaw asks you to do it. I will try to advise you from time to time, Mr. Renshaw, what I think might be or would be appropriate that would be helpful to you, but I do not want to in any way force Mr. Bathon upon you.

All right. Thank you.

MR. BATHON: Your Honor, will you also advise him that he has the right to cross examine each witness?

THE COURT: Yes. Let me say that now.

I will cover some of your rights with you so that you are aware of them. Or even if you are aware of them, I will make the record show that you are aware of them.

One is that as the State calls witnesses, you have a right to cross examine them and ask them questions. Then when they finish you have a right to produce witnesses yourself and you also have a right to testify yourself if you want to; however, you do not have to testify. And the fact that you do not testify would be no inference by itself that you were guilty. The State has to prove it's case; it is not up to you to prove that you are innocent. So, for that reason, you do not have to testify unless you want to.

If there are other things that I think would be helpful to you as we go along, I will explain them to you. On the other hand I do not want to do anything to in any way harm your case. So you are here to get a fair trial and as good a trial as we can give you.'

While the court acted with commendable motives in its attempt to see that all of the rights of a defendant were protected, its resolution of the counsel dilemma squarely contravened Md. Rule 719 c.

Md. Rules 719 c. has been effective now for two and one-half years. It reads:

'If, at any stage of the proceeding, an accused indicates a desire or inclination to waive representation, the court shall not permit such a waiver unless it determines, after appropriate questioning in open court,...