State v. Barham, 83-363

• Decision Date: 19 June 1985
• Docket Number: No. 83-363,83-363
• Citation: 495 A.2d 1269,126 N.H. 631
• Parties: The STATE of New Hampshire v. Raymond BARHAM.
• Court: New Hampshire Supreme Court

Page 1269

495 A.2d 1269

126 N.H. 631

The STATE of New Hampshire v. Raymond BARHAM.

No. 83-363.

Supreme Court of New Hampshire.

June 19, 1985.

Stephen E. Merrill, Atty. Gen. (Tina Schneider, Concord, on brief and orally), for the State.

James E. Duggan, Appellate Defender, Concord, on brief and orally, for defendant.

DOUGLAS, Justice.

On appeal from his first degree murder conviction, RSA 630:1-a, the defendant claims that he was effectively denied his rights to self-representation and to a speedy trial. We affirm.

On Sunday, August 30, 1981, at about 11:30 a.m., Raymond Barham, then 52

years old, shot and killed Norman Walpole in Wolfeboro. At the time, Walpole was coming home from church with Louise Graham, Barham's estranged wife. Barham left the scene of the shooting immediately. Within an hour, he was arrested in nearby Tuftonboro by Police Chief William Keyes. Chief Keyes found Barham sitting in his car parked on an isolated dirt road. Barham still had his gun and stated that he intended to commit suicide. Barham was taken to the Wolfeboro police station and charged with first degree murder. He was incarcerated at the Carroll County House of Correction pending trial, which was scheduled to begin in May 1982.

Attorney Frederick Cox of Wolfeboro was asked to represent Barham. Attorney Cox thereafter entered into plea negotiations with the State and advised Barham to agree to plead guilty to second degree murder in exchange for a recommendation of 30 years to life. Barham, however, wanted to go to trial.

On November 30, 1981, Barham wrote to the court expressing dissatisfaction with Attorney Cox. Attorney Harry C. Batchelder was then appointed to represent the defendant, with the defendant's consent. In April 1982, less than one month before trial was scheduled to begin, Attorney Batchelder requested a continuance on his client's behalf. The Trial Court (Wyman, J.) granted the continuance and scheduled trial for October 1982.

In May 1982, the defendant indicated to Attorney Batchelder a desire to represent himself. Batchelder told him about Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). On July 2, 1982, Barham wrote to the court citing Faretta and indicating a desire to represent himself.

The court responded that it would not allow any further continuances of the October 1982 trial date and that it would not release Attorney Batchelder. It further advised Barham of the right "[a]t ... trial ... to order your counsel to occupy a stand-by relationship while you undertake what amounts to pro se representation of yourself. However, in a first degree murder case, the court will not allow you to proceed without any counsel at all."

Several more letters were exchanged between the court and the defendant during July and August in which pro se representation and appointment of counsel was discussed. As a result of this correspondence, the court appointed Attorney Mark Sisti as counsel for the defendant. Attorney Sisti requested a continuance of the October 1982 trial date. The court rescheduled trial for May 1983.

On December 8, 1982, the defendant filed a motion for permission to proceed pro se. The defendant, for the first time, sent a copy of his request to represent himself to the State. Although the defendant acknowledged that he had requested Attorney Sisti's appointment only four months before, he expressed displeasure with his counsel's preparation of the defense.

Without a hearing, the trial judge denied the motion, and Barham filed an exception. The case was scheduled for hearing on January 21, 1983, on various motions. Instead, Attorney Sisti asked the trial court to hold a hearing on the issue of self-representation. The trial judge then gave Barham "an opportunity to be heard" on this issue.

Barham told the judge that he was unaware that the trial was scheduled for May, that Attorney Sisti "was proceeding in a manner contrary to my wishes and desires" and that he did not want "this oppressive delay." Barham said that he wanted to represent himself, and that he realized that there were "mechanical difficulties due to my incarceration;" but Barham promised, if allowed to proceed pro se, to "immediately move forward." The trial judge noted that there were "three or four months" left before trial and there was "plenty of time to get things done." Barham agreed and the trial judge said Barham was "entitled to help." During the hearing, the defendant reminded the court that in December 1981, he had "begged" the court to transfer him to the State prison mainly because of the "inadequacy of Carroll County for a man of my years and physical infirmities."

The court found that the defendant's decision to represent himself was knowingly and intelligently made and authorized him to proceed with the assistance of counsel on a "stand-by basis." Attorney Sisti then suggested that Barham be given a copy of the New Hampshire Rules of Evidence and that the Carroll County Sheriff's Department allow Barham access to a typewriter. Barham himself requested "a hundred dollars for supplies," and the trial judge said that "[n]o reasonable request will be refused."

Five days later, on January 26, 1983, the defendant filed a motion for use of a law library. Although he noted that "the use of the law library at the Carroll County Courthouse by inmates in the Carroll County Jail is not without precedent," the defendant did not request access to any particular law library. In response, on January 31, 1983, the trial judge ordered the defendant transferred to the New Hampshire State Prison "so that he may use the law library and other facilities available." Unlike the Carroll County House of Correction, the State Prison has its own law library on the premises, so that guards are not required to transport prisoners to and from the library and to remain there to supervise their activities.

When the defendant arrived at the State prison, almost immediately after learning of the judge's order, he was placed in maximum security and precluded from using the law library because he refused to comply with a prison security regulation prohibiting all inmates from wearing beards. The defendant has acknowledged that he knew in advance of the prohibition against beards.

On February 8, 1983, Attorney Paul Twomey, a public defender, brought Barham's situation at the prison to the attention of the State in a letter to Assistant Attorney General Gregory Swope. On February 11, the defendant filed a motion for an immediate hearing stating that he was being held "virtually incommunicado and ... unable to utilize the law library." This was sent to Judge Wyman, who then wrote a note back to the clerk stating that Barham was sent to the State prison to use the library.

A hearing was held in the superior court on March 23, 1983, fifty-six days after Barham had been transferred to the prison, to determine if there were "any alternative[s] in the State prison, rather than breaking the rules, that would allow Mr. Barham to have access to the library." As a result of the hearing, the Court (Temple, J.) ordered the defendant transferred back to the Carroll County House of Correction where he would be allowed to use, under guard supervision, the library at the Carroll County Superior Court.

On April 5, 1983, the defendant moved for a third continuance of the trial. He argued that because he had "inadvertently lost" fifty-six days of trial preparation time, the court should grant him a fifty-six day continuance.

After a hearing on April 15, 1983, the Superior Court (Wyman, J.) denied the defendant's motion to reschedule trial. The court found that the defendant's lack of access to the law library facilities at the New Hampshire State Prison "resulted from his individual and personal election to retain a beard prohibited by state prison regulations." On April 22, 1983, the court denied the defendant's motion to reconsider his denial of the earlier motion to reschedule trial.

On April 26, 1983, the defendant's motion to suppress was heard. Five witnesses testified. The defendant represented himself. The trial court suppressed certain incriminating statements and allowed others into evidence. On that same day, Barham filed a writ of mandamus in this court setting forth facts and asking for a postponement of his trial. The writ was dismissed.

Jury selection began on May 2, 1983. The defendant unsuccessfully reiterated his request for a continuance to allow him more time to prepare. In the middle of jury selection, the defendant announced that he was "reluctantly" waiving his right to proceed pro se. The defendant asked to be represented by Attorney Sisti, who then requested a continuance. The State insisted that the defendant "voluntarily" waive his right to proceed pro se as a condition of granting the continuance. "Either we go to trial or you voluntarily waive your right to self-representation. It's very simple." The court agreed that the State was "entitled to that." Barham reluctantly relented and stated: "Your Honor, I knowingly and voluntarily relinquish my Faretta rights." The court then rescheduled trial for July 1983.

After a trial, at which the defendant was represented by counsel, the jury found the defendant guilty of first degree murder. The court sentenced the defendant to life without parole at the New Hampshire State Prison. On appeal, the defendant states that he was effectively denied his rights to represent himself and to a speedy trial.

Under the New Hampshire Constitution, part I, article 15, and the sixth amendment to the Federal Constitution, a defendant has a right to represent himself in a criminal trial. State v. Settle, 123 N.H. 34, 38, 455 A.2d 1031, 1033-34 (1983); Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We begin, as we must, by first making an independent analysis of the protections afforded under the New Hampshire Constitution, State v....