Snowden v. State

• Decision Date: 15 February 1996
• Docket Number: No. 84,1995,84
• Citation: 672 A.2d 1017
• Parties: Ferdell SNOWDEN, a/k/a Ferdell Harvey, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: United States State Supreme Court of Delaware

Page 1017

672 A.2d 1017

Ferdell SNOWDEN, a/k/a Ferdell Harvey, Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 84, 1995.

Supreme Court of Delaware.

Submitted: Feb. 15, 1996.

Decided: March 12, 1996.

Upon appeal from the Superior Court. REVERSED and REMANDED.

Court Below: Superior Court of the State of Delaware, in and for New Castle County; Cr.A. Nos. IN94-05-1437, 1438, 1439, 1441 and 1442.

John H. McDonald, Assistant Public Defender, Wilmington, for appellant.

Timothy J. Donovan, Jr., Deputy Attorney General, Wilmington, for appellee.

Before VEASEY, C.J., HOLLAND and HARTNETT, JJ.

HOLLAND, Justice:

The defendant-appellant, Ferdell Snowden, also known as Ferdell Harvey ("Snowden") was tried before a jury in the Superior Court. The jury found Snowden guilty of Reckless Endangering in the First Degree, Possession of a Deadly Weapon During the Commission of a Felony, Unlawful Imprisonment in the Second Degree, Aggravated Act of Intimidation, and Menacing. The jury acquitted Snowden of Criminal Mischief under $500. Snowden was sentenced to be incarcerated for an aggregate of ten years, suspended after four and one-half years for five and one-half years' probation, to be served consecutive to another Delaware sentence.

In this direct appeal, Snowden has raised five issues. First, Snowden contends that the Superior Court erred by refusing to allow him to participate in sidebar conferences, since he was appearing pro se, instead requiring Snowden's standby counsel to perform that task at trial, thereby denying Snowden his right of self-representation. Second, Snowden alleges that the Superior Court erred in granting the motion of the City of Wilmington to quash a subpoena duces tecum for production of the personnel records of one of the Wilmington police officers who was a witness against Snowden at trial. Third, Snowden argues that his right to cross-examine a former Wilmington police officer was wrongfully denied on the basis of protecting the former officer's privacy. Fourth, Snowden submits that his ability effectively to cross-examine police witnesses against him was unfairly abridged by destruction of the taped record of his preliminary hearing. Finally, Snowden alleges that it was error for the Superior Court to refuse to instruct the jury on the lesser-included offense of Reckless Endangering in the Second Degree.

We conclude that Snowden's Sixth Amendment right of self-representation was denied when he was excluded from participating in all sidebar conferences. The United States Supreme Court has held that a denial of that right is not subject to a harmless error analysis. Therefore, the judgments of the Superior Court must be reversed. Snowden's other contentions will be addressed to the extent they are relevant to further proceedings when this matter is remanded.

Facts

At some time before the events which led to Snowden's arrest, he and Wynnona Williams ("Williams") had been friends. On the evening of November 25, 1993, Snowden went to the house where Williams resided with Janeen Jones, Williams' two children and Jones' two children. Snowden had telephoned Williams earlier that day, but Williams had refused to speak to him.

When Snowden knocked at the door of Williams' residence, it was answered by Simone Harris ("Harris"), Williams' teenage cousin who was there to babysit. Harris let Snowden enter. Williams was in another room with Janeen Jones and a woman named Carolyn Jones.

Snowden demanded that Williams give him the shirt she was wearing. He had apparently given it to her previously as a gift. When Williams refused, Snowden ripped the shirt.

Harris witnessed this altercation and criticized Snowden for his behavior. In response, Snowden pulled out a silver handgun and pointed it at Harris. Upon seeing the gun, Janeen Jones and Carolyn Jones fled from the house through the bathroom window.

When Williams' five-year-old son tried to come to his mother's defense, Snowden pushed him aside. Snowden then grabbed Williams, put the gun to her head, and told her to take her clothes off. Williams heard Snowden click the gun back. Williams undressed down to her undergarments.

In the meantime, the City of Wilmington Police Department had been called. Officer George Koumpias ("Officer Koumpias") was the first to arrive at the scene. He observed Snowden coming out of the house. When Snowden saw the police officer, he ran back inside the house and escaped by breaking a window. Officer Koumpias pursued Snowden unsuccessfully.

During a search of the area for Snowden, another police officer found a maroon jacket protruding from underneath a parked car. In a pocket of the jacket was a prescription bottle bearing the name of Ferdell Harvey. Under the jacket, the police officer found an unloaded, semi-automatic silver handgun. Snowden was apprehended later that evening.

Self-Representation

Includes Bench Conferences

The United States Supreme Court has held that the right of self-representation in "all criminal prosecutions" is implicit in the Sixth Amendment. Faretta v. California, 422 U.S. 806, 816-19, 95 S.Ct. 2525, 2531-33, 45 L.Ed.2d 562 (1975); see also McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). Although the Federal right to self-representation is only implicit in the Sixth Amendment, the right of self-representation is set forth explicitly in the Delaware Constitution: "In all criminal prosecutions, the accused hath a right to be heard by himself and his counsel,...." Del. Const. art. I, § 7. The venerable history relating to the right of self-representation that is guaranteed by the Delaware Constitution was reviewed by this Court in Hooks v. State, Del.Supr., 416 A.2d 189, 198-99 (1980). ¹

The record reflects that Snowden made a timely request to represent himself at trial. The conditions precedent to granting an accused the Sixth Amendment right to conduct his or her own defense, are a knowing and intelligent waiver of the right to counsel and an agreement to adhere to the tribunal's rules of procedure. McKaskle v. Wiggins, 465 U.S. at 173, 104 S.Ct. at 948. Accordingly, the Superior Court made a comprehensive inquiry before ruling upon Snowden's motion to proceed pro se. Briscoe v. State, Del.Supr., 606 A.2d 103 (1992).

The Superior Court granted Snowden's motion for self-representation, but imposed a critical condition. It ruled that Snowden must remain at counsel table throughout the trial. The trial judge also appointed a standby attorney for Snowden. ²

As a result of the Superior Court's order to remain at counsel table, Snowden was excluded from all sidebar conferences. Instead, Snowden's standby attorney was requested to come forward for those stages of the trial. Snowden contends that the Superior Court violated his right of self-representation by barring him from participating in sidebar conferences.

Several state and federal courts have addressed the issue of excluding a pro se defendant from participating in sidebar conferences. The most analogous cases are: United States v. McDermott, 64 F.3d 1448 (10th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 930, 133 L.Ed.2d 857 (1996); People v. Rosen, N.Y.Ct.App., 81 N.Y.2d 237, 597 N.Y.S.2d 914, 613 N.E.2d 946 (1993); Oses v. Massachusetts, 961 F.2d 985 (1st Cir.), cert. denied, 506 U.S. 954, 113 S.Ct. 410, 121 L.Ed.2d 334 (1992); and United States v. Mills, 895 F.2d 897 (2d Cir.), cert. denied, 495 U.S. 951, 110 S.Ct. 2216, 109 L.Ed.2d 541 (1990). In McDermott, the Tenth Circuit held that barring the defendant from participating in bench conferences violated his Sixth Amendment right of self-representation. United States v. McDermott, 64 F.3d at 1451-54. In Oses, the First Circuit held that the combination of three errors, one of which was exclusion of the defendant but not standby counsel from bench conferences, violated the defendant's Sixth Amendment right of self-representation. Oses v. Massachusetts, 961 F.2d at 986. Conversely, in Mills, the Second Circuit found no violation of that Sixth Amendment right when the defendant was excluded from sidebar conferences at which his standby counsel participated, because it concluded that "taking the trial as a whole Mills had 'a fair chance to present his case in his own way.' " United States v. Mills, 895 F.2d at 905 (citing Wiggins ). In Rosen, the New York Court of Appeals held that when the "trial court advanced no reason for its refusal to permit [the] defendant to attend sidebars ... that defendant's State constitutional right to self-representation was violated." People v. Rosen, 613 N.E.2d at 950, 597 N.Y.S.2d at 918.

"In determining whether a defendant's Faretta rights have been respected, the primary focus must be on whether the defendant had a fair chance to present his case in his own way." McKaskle v. Wiggins, 465 U.S. at 177, 104 S.Ct. at 950. In Mills, the Second Circuit relied heavily on the foregoing statement. See United States v. Mills, 895 F.2d at 905. In McDermott, however, the Tenth Circuit found that two additional considerations in Wiggins constrained its analysis. Those considerations are as follows:

First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury. This is the core of the Faretta right. If standby counsel's participation over the defendant's objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded.

Second, participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself. The defendant's appearance in the status of one conducting his own defense is important in a criminal trial, since the right to appear pro se exists to affirm the...