State v. Ahearn, 99-77

Decision Date22 May 1979
Docket NumberNo. 99-77,99-77
PartiesSTATE of Vermont v. Frederick G. AHEARN.
CourtVermont Supreme Court

Mark J. Keller, Chittenden County State's Atty. and Norman R. Blais, Chief Deputy State's Atty., Burlington, for plaintiff.

James L. Morse, Defender Gen., Charles S. Martin and William A. Nelson, Appellate Defenders, Montpelier, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

DALEY, Justice.

In a trial by jury the defendant was found guilty upon two informations, charging assault and robbery while armed with a dangerous weapon, a violation of 13 V.S.A. § 608(b), and upon an information charging him with a violation of 13 V.S.A. § 608(c), injuring a person while committing the acts denounced by § 608(b). The incidents giving rise to the charges stemmed from three separate robberies, I. e. "Pete's Ice Cream," "The Spring," and the "Red Lion Bar." While robbing the proprietor of the Red Lion, the defendant shot a patron who was attempting to telephone the police. The defendant appeals from the judgments and sentence imposed.

The defendant conducted his own defense. However stand-by counsel, appointed by the trial court, was available to assist if he so requested. The defendant did not, at any time, deny that he committed the crimes. Indeed, in his opening statement and in his own testimony, he admitted the commission of the crimes. Rather, he relied on a unique defense of temporary insanity. The defense arises out of long imprisonment, including seven years of solitary confinement. The defendant contended that extended incarceration made him subject to sudden, uncontrollable urges that resulted in violence and theft. The jury rejected his defense, finding him guilty upon each charge.

The focal issue in this appeal is whether the defendant was afforded a fair trial. The claims of error may be generally classified into the following broad categories: a denial of his right to counsel; restriction of his ability to prepare a defense; errors in the reception and exclusion of evidence; the trial court's failure to instruct the jury on his appearance in handcuffs; and his claim that the judge should have disqualified himself during sentencing and trial. The record reveals proceedings wrought with turmoil and a tension that culminated in a physical attack upon the judge. It is also apparent from the record that much of the defendant's conduct was intended to harass the court and generally disrupt the judicial process. From our review of the record, we cannot say that the defendant was denied a fair trial. The judgment is affirmed.

I.

At the time of his arraignment on July 30, 1976, the defendant appeared without counsel. He stated that he was not indigent and had a lawyer in Boston, Massachusetts. He declined the court's offer to appoint the public defender to represent him at that time. The defendant had copies of the informations. The court informed him of the possible maximum punishments and entered pleas of not guilty in his behalf. He was then remanded to the correctional center since he could not furnish the bail set by the court.

He now contends that he was denied representation in violation of the constitution and V.R.Cr.P. 5(e), "Assignment of and Consultation with Counsel." The defendant has not shown prejudice in the trial court's actions in entering pro forma pleas of not guilty at a time when he was without counsel and before the assignment of counsel as required by V.R.Cr.P. 5(e). Moreover, these pleas preserved all rights and defenses which could be raised further in the proceedings. See State v. Girouard, 130 Vt. 575, 584, 298 A.2d 560, 565 (1972). There is no error.

II.

A review of the proceedings giving rise to the defendant's claims of error reveals the following. Three days after his arraignment the public defender was assigned to the case. He undertook pretrial discovery procedures set out in our rules of criminal procedure, including, but not limited to, a request for the attendance of out-of-state witnesses which was granted. 13 V.S.A. §§ 6641-6649. On September 17, at a time when a trial date had apparently been set for September 21, the defender filed a notice of insanity defense. The trial date was continued to allow a mental examination under the provisions of 13 V.S.A. § 4814. This examination was conducted at the Vermont State Hospital and a report was made to the court, 13 V.S.A. §§ 4815, 4816. At a competency hearing on December 10, 1976, held in accordance with 13 V.S.A. § 4817, the defendant first indicated his desire to represent himself. The court, having some unresolved doubts about competency, took no immediate action upon the request. But, the defendant was adamant about his preference. "Your Honor . . . if you want (the public defender) representing me during this hearing as to whether or not I'm competent to stand trial, I would like to have it on the record that when I leave here, today, that I'm proceeding pro se."

Both the public defender and the defendant participated in the questioning of the court-appointed psychiatrist. He testified that the defendant was a sociopath but also that he was a man of more than average intelligence, that he could have attended college if he had so desired, and that he described the events leading up to his arrest in a clear and competent manner. Despite the defendant's personality disorders, the psychiatrist opined that he was competent to stand trial. The court so ruled.

Before allowing him to represent himself, it warned the defendant about the dangers of proceeding pro se. And it manifested its concern by directing the public defender to appear at future proceedings as back-up counsel. Furthermore, although the trial schedule was disrupted, it granted a three-weeks continuance to allow the defendant to depose the State's witnesses and to acquaint himself with the evidence.

A week later, on December 17, the defendant filed, apparently in response to the court's demand for a written waiver, a "Motion to Proceed Pro Se." By this motion he asked to represent himself and waived his right to a court-appointed attorney. He stated that he could come to no reasonable agreement with the public defender as to the handling of pretrial discovery; that the defender had not prepared a reasonable defense; and that because of their disagreement the defender was prejudiced against him.

At the outset of the omnibus hearing on January 24, 1977, the defendant, acting pro se, presented a written motion in which he requested the court to appoint private counsel in lieu of the public defender. It stated that he had dismissed the public defender because of a "disagreement over pre-trial discovery tactics." It also asserted that the defenders were incapable of providing adequate counsel because of their heavy workload. Orally, the defendant indicated his desire for counsel of his "own choosing."

The court told him, correctly, that he had no right to choose assigned counsel. Although it would have been better practice to make a more searching inquiry, the court did not probe the matter further. Relying on the motions and the defendant's statements, it denied his request. The court informed him that if he wanted counsel it would appoint the public defender and no one else. The defendant unequivocally replied that he would defend himself. The court acceded to his choice and directed the public defender to continue as stand-by counsel.

Based on the foregoing facts, the defendant raises the heart of his appeal, namely, that he was denied his right to counsel. He argues that he did not choose to proceed pro se but was in effect compelled to do so and that the waiver, if any, was not knowingly and intelligently made. He also claims that the court erred by allowing him to proceed unrepresented without a written waiver.

A defendant has the constitutional right to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. Dragon, 135 Vt. 168, 169, 376 A.2d 12, 13 (1977); State v. Hartman, 134 Vt. 64, 65, 349 A.2d 223, 225 (1975). He may defend himself without counsel provided he voluntarily and intelligently makes that choice. Dragon, supra; Hartman, supra. "A knowing and intelligent waiver of counsel depends on the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused." Hartman, supra, 134 Vt. at 66, 349 A.2d at 225; Dragon, supra.

Although the defendant does not challenge the court's finding that he was competent to stand trial, he now claims that he lacked the capacity to knowingly and intelligently waive counsel. He stresses the observations of the State's psychiatrist that he is a "classic sociopath" and suffers from a "severe personality disorder." He asserts in essence then a distinction between competence to stand trial and competence to waive counsel.

We do not agree that the defendant lacked the mental capacity to waive counsel. The record simply does not support such a contention. On the contrary, it shows that the defendant was articulate, intelligent, and understanding, and that he was voluntarily exercising his informed free will. He was not unfamiliar with criminal procedure. He was thirty-three years of age and had spent thirteen years in various prisons, mostly upon convictions of armed robbery and theft. He had previously appeared in court on numerous occasions with representation by counsel. Here, after extensive warnings by the court, he clearly and unequivocally declared that he wanted to represent himself and did not want counsel. Moreover, his handwritten "Motion to Proceed Pro Se" warned the court that if the motion were not granted his constitutional rights would be violated, a further indication that he understood the choices available to him.

Sufficient basis exists to hold that the defendant was fully aware that he would be on his own in a complex...

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