State v. Ayers

• Decision Date: 31 August 1983
• Citation: 464 A.2d 963
• Parties: STATE of Maine v. Donald AYERS.
• Court: Maine Supreme Court

Page 963

464 A.2d 963

STATE of Maine v. Donald AYERS.

Supreme Judicial Court of Maine.

Argued March 18, 1983.

Decided Aug. 31, 1983.

Charles K. Leadbetter, Wayne S. Moss (orally), Asst. Attys. Gen., Augusta, for plaintiff.

Stern & Goldsmith, J. Hilary Billings (orally), Bangor, for defendant.

Before McKUSICK, C.J., and GODFREY, NICHOLS, CARTER ^*, and WATHEN, JJ.

WATHEN, Justice.

Defendant Donald Ayers appeals from his conviction for murder, 17-A M.R.S.A. § 201 (1983), resulting from a jury trial in Superior Court (Washington County). On appeal, defendant argues that the court erred in: (1) refusing to permit defense counsel to withdraw from representation, (2) failing to declare a mistrial after a testimonial reference to the co-defendant's confession, (3) admitting a gun and money found pursuant to the alleged illegal confession of the co-defendant, (4) admitting a copy of the victim's will and a copy of a firearms log in contravention of the best evidence rule, and (5) admitting prior recorded testimony of the defendant. We find no error and deny the appeal.

On the night of April 6, 1979, John Cheponis was shot and beaten to death in the J-P Cash Market in Presque Isle. The victim's former wife, Barbara Thibodeau, and defendant Donald Ayers were each indicted and charged with one count of conspiracy and one count of murder. On July 25, 1980, following a jury trial, both defendant and Barbara Thibodeau were convicted as charged. On appeal, this Court upheld both conspiracy convictions but set aside the convictions of murder. State v. Ayers, 433 A.2d 356 (Me.1981). Donald Ayers was subsequently retried and convicted of murder on October 17, 1981. The presiding justice granted a defense motion for a new trial and, following a change of venue, a third jury trial resulted in the murder conviction now on appeal.

I.

Ten days before the scheduled commencement of the third trial, both of defendant's counsel filed application for leave to withdraw, asserting that they had been appointed to represent defendant, that they had already unsuccessfully represented him in two jury trials, and that defendant had requested counsel to withdraw from the case and sought the appointment of other counsel. At hearing, one of defendant's counsel explained as follows:

The final note, it's always been my personal experience that I've never had good luck representing clients who don't want to be represented by me. I find it very difficult to get along with them in most cases. And this case being a murder case, I would consider the establishment of a trust between attorney and client very important.

After being questioned by the presiding justice, defendant stated that he did not have confidence in his counsel and did not feel that he was being properly represented. Defendant explained that he had not presented his request earlier due to the fact that he had only learned of the date of his new trial the week before. He also stated that for the past two or three months he had been trying to get the name of a "good criminal lawyer" from his fellow inmates at the Maine State Prison.

Defendant suggested two names as possible replacement counsel. The presiding justice responded that one of these attorneys was out of the country and that the other, a Portland lawyer, "is not going to travel to Machias for a court appointed case. I haven't talked to him, but I can guarantee it." After defendant expressed his willingness to have the court select another attorney, the presiding justice stated: "There is no one in this state who would be willing to take this case and try it next week."

The presiding justice commented further: "Mr. Ayers, I really have a problem with what, in effect, is just a back door way to get a continuance in this case." Defendant responded that he was not seeking a continuance, and his counsel, noting defendant's present incarceration, stated: "I don't see any way a continuance could help him." The presiding justice replied Well, it--it helped Mrs. Ayers, ¹ arguably, because--and it's a matter that is pretty obvious. I don't think I'm speaking out of turn. Mr. Ayers is a necessary, or at least the State hopes to make him a witness against Mrs. Ayers. That's why to get his trial over with first so that the privilege problem is disposed of. And her trial is already one year after the Law Court's reversal. Recognizing that the bulk of that delay has, to date, been the fault of the defense because of the shift in counsel there, nonetheless it's time to retry that one, and as a matter--it's not that I'm siding with the State in setting Mr. Ayers as a witness, but the fact of the matter remains that the practical way to try these trials is Mr. Ayers first and then Mrs. Ayers.

Ultimately, the court ruled:

[T]he upshot of this is, Mr. Ayers, that I am not convinced that your request for change of counsel is the product of any reasoned evaluation of your attorneys' performance in the prior trials. I think there are some underlying motives. Certainly neither [of the two suggested counsel] is available to represent you, and I know of no lawyer who is available to represent you on the short-term basis that we have here. I am not at all inclined to grant a continuance. The matter has been pending for a long time, and whatever--whatever the situation here, I've heard nothing that convinces me that the situation is so bad that you cannot get competent representation from the people who are most familiar with the case and who have represented you in the past, and I'm going to deny the request to withdraw this counsel. The matter will proceed as scheduled on July 12th.

Defendant argues on this record that he was deprived of the right to counsel by the court's refusal to permit a change in representation.

The right to counsel guaranteed by the Sixth Amendment is indeed a cornerstone of our national system of ordered liberty. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The importance of counsel in our criminal adversary system is unquestioned, but it is well recognized that a criminal defendant's absolute right to counsel does not confer upon him an absolute right to counsel of his choice. Balancing an appreciation of the inevitable difficulties of trial administration with a concern for constitutional protections, the cases uniformly hold that the right of an accused to the assistance of counsel, "cherished and fundamental though it be," United States v. Fowler, 605 F.2d 181, 183 (5th Cir.1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 785 (1980), cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair, efficient and effective administration of justice. See, e.g., United States v. Burton, 584 F.2d 485, 489 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979); United States v. Poulack, 556 F.2d 83, 86 (1st Cir.), cert. denied 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977); Lofton v. Procunier, 487 F.2d 434, 435 (9th Cir.1973); Thorne v. State, 269 Ark. 556, 560, 601 S.W.2d 886, 889 (1980); Commonwealth v. Connor, 381 Mass. 500, 503, 410 N.E.2d 709, 711 (1980); State v. Addison, 197 Neb. 482, 485, 249 N.W.2d 746, 748 (1977); Commonwealth v. Baines, 480 Pa. 26, 30, 389 A.2d 68, 70 (1978).

A court need not tolerate unwarranted delays, and, if in the sound discretion of the court the attempted exercise of choice is deemed dilatory or otherwise subversive of orderly criminal process, the court may compel a defendant to go to trial even if he is not entirely satisfied with his designated attorney. Lofton, 487 F.2d at 435; Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976). The United States Supreme Court has recently held that the Sixth Amendment does not guarantee a "meaningful relationship" between an accused and his counsel. Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). ² In so holding, the Court recognized the important countervailing interests of the State in avoiding unnecessary delay so as to do justice with regard to both the defendant and others whose rights to a speedy trial may thereby be affected. Id. at ----, 103 S.Ct. at 1616-17. See also Baines, 480 Pa. at 30, 389 A.2d at 70. Indeed, "the public's interest in the dispensation of justice that is not unreasonably delayed has great force." Burton, 584 F.2d at 489.

In this case, defendant challenges the denial of his motion for withdrawal of counsel and the denial of a continuance which would have resulted therefrom. It is firmly established that whether a continuance will be granted on the ground that more time is required to obtain adequate legal representation at trial in a given case rests entirely within the sound discretion of the presiding justice and the decision will not be reversed absent a clear abuse of that discretion. State v. Stinson, 424 A.2d 327, 332 (Me.1981). A continuance which is sought to retain or replace counsel implicates the Sixth Amendment right to the assistance of counsel and, in such circumstances, "the right to select counsel must be carefully balanced against the public's interest in the orderly administration of justice." Burton, 584 A.2d at 489. However, "only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel." Morris v. Slappy, 461 U.S. at ----, 103 S.Ct. at 1616, quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).

Defendant has failed to demonstrate any abuse of discretion. The remarks of the presiding justice could, if considered out of context, be construed as expressing an inappropriate concern for the effect of the requested ruling upon the position of the State. However, a reading of the entire record establishes that the trial court was not advancing that concern as a basis for denying defendant's motion. Rather, the trial justice was...