State v. Holmes

• Decision Date: 12 January 2010
• Docket Number: No. W2008-00759-SC-R11-CD,W2008-00759-SC-R11-CD
• Citation: 302 S.W.3d 831
• Parties: STATE of Tennessee v. Tommy HOLMES.
• Court: Tennessee Supreme Court

302 S.W.3d 831

STATE of Tennessee v. Tommy HOLMES.

No. W2008-00759-SC-R11-CD

Supreme Court of Tennessee, at Jackson.

November 5, 2009 Session.

January 12, 2010.

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Tommy Holmes.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General; John H. Bledsoe, Senior Counsel; David H. Findley, Senior Counsel; William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney General, for the appellee, the State of Tennessee.

OPINION

CORNELIA A. CLARK, J., delivered the opinion of the Court, in which JANICE M. HOLDER, C.J., GARY R. WADE, WILLIAM C. KOCH, JR., and SHARON G. LEE, JJ., joined.

We granted permission to appeal in this case to address whether the trial court erred in ruling that an indigent defendant forfeited his right to counsel at trial by telling his appointed lawyer, "I know how to get rid of you," and, at a subsequent meeting, physically assaulting his lawyer by striking the lawyer's eyeglasses with his finger. The defendant was tried by a jury pro se and convicted of aggravated rape. We hold that, under the facts and circumstances of this case, the trial court committed reversible error in ruling that the defendant had forfeited his right to appointed counsel at trial. While the defendant's physical attack on his lawyer was serious misconduct, it did not rise to the level of "extremely serious misconduct" sufficient to warrant an immediate forfeiture. State v. Carruthers, 35 S.W.3d 516, 548 (Tenn.2000). Because the defendant was erroneously denied his fundamental constitutional right to counsel, we must reverse his conviction and remand this matter for appointment of new counsel and a new trial. The judgment of the Court of Criminal Appeals is reversed.

Factual and Procedural Background¹

The appellant, Tommy Holmes ("Defendant"), was indicted for attempted murder, aggravated rape, intimidation of a witness, and aggravated assault, and an assistant public defender ("Counsel") was appointed to represent him. In March 2003, shortly before one of Defendant's trials, an "impromptu hearing" was held with Defendant present. During this "hearing," Counsel sought permission to withdraw from representing Defendant on the basis of Defendant's behavior toward him. Counsel told the trial court,

On two occasions, Your Honor, including this morning — the reason I had [the defendant] brought up was so I could visit with him up here. He has threatened physical violence in the past at our last meeting. Today he put hands on me and I had to leave. He punched me in the face with his finger, knocked my glasses off. And I don't believe that I can represent [the defendant]; so I'm asking the Court to relieve me.

State v. Holmes, No. W2006-00236-CCA-R3CD, 2007 WL 1651876, at *3 (Tenn. Crim.App. June 7, 2007). The trial court permitted Counsel to withdraw without allowing anyone else to testify about the matter, concluding there was no need "to have a formal hearing in this regard." Id. The trial court then determined sua sponte that Defendant had forfeited his right to appointed counsel and informed Defendant that, unless he or his family hired a lawyer, Defendant would be representing himself at trial. Counsel turned over to Defendant the discovery materials he had received. The trial court denied Defendant's subsequent written motion for the appointment of counsel.

At a later hearing on pretrial motions, Defendant repeated his request for a lawyer and asserted that Counsel's report about the attack was false. The trial court again denied Defendant's request for a lawyer and again refused to conduct a hearing on the issue of what had occurred between Defendant and Counsel.

Defendant proceeded pro se to his jury trial on the aggravated rape charge, but the trial court appointed elbow counsel to assist Defendant in conducting his defense.² The jury convicted Defendant of aggravated rape, a Class A felony.

On direct appeal, the Court of Criminal Appeals concluded that the trial court had not followed the correct procedures in determining that Defendant had forfeited his right to counsel. Accordingly, the intermediate appellate court remanded the matter to the trial court "for an evidentiary hearing as to whether [Defendant] forfeited his right to counsel." Id. at *10.

On remand, a different trial judge conducted the required hearing because the original trial judge had retired in the interim. At the hearing, Counsel testified that as of March 2008, he had been a licensed attorney in Tennessee for twenty-two years. He joined the Public Defender's office in the spring of 2001 after having been in a general private practice. He was appointed to defend Defendant against charges including attempted murder, aggravated rape, intimidation of a witness, and aggravated assault. Defendant was in custody during the time Counsel represented him.

Counsel stated that he did not have any problems with Defendant "at first" but, at their penultimate meeting, Defendant told Counsel, "I know how to get rid of you." Defendant made this statement while his aggravated rape case was pending trial. Counsel's next meeting with Defendant occurred about two weeks before Defendant's trial date. Counsel testified about that meeting:

We were — we were talking back in [an interview room in the courthouse] and [Defendant] asked me well do you believe I'm innocent. And I said it really doesn't matter what I believe. He jumped up, stood over me and said you're going to do what I tell you to do, pushed his finger at me and knocked my glasses, not all the way off but askew.

Counsel stated that he and Defendant were the only persons in the interview room. The door to the room was closed. Defendant had not been handcuffed during their meeting.

Counsel testified that, after Defendant's actions, he "folded [his] books and left." Counsel reported the incident to the trial court "[i]mmediately." Counsel testified that he told the trial court "what happened and [the judge] brought [Defendant] out and essentially issued a ruling on it." When asked if Defendant's actions frightened him, Counsel responded, "Well, yeah, I guess so. I mean, it was astounding. I've never had that happen before or since." Counsel explained that he had represented "hundreds" of criminal defendants.

On cross-examination, Counsel acknowledged that, as he left his final meeting with Defendant, Defendant did not attempt to "come after" him or "take any swings" at him. Defendant "used an expletive" as Counsel was leaving but Counsel did not remember what it was. Counsel acknowledged that he did not report Defendant's verbal warning about getting "rid of" him. Counsel explained that this statement was made in "a threatening manner," but he did not know whether Defendant was referring to getting Counsel removed as his attorney, or something else. Counsel did not request that Defendant be handcuffed at their next (last) meeting.

With respect to the physical confrontation, Counsel explained that Defendant had not made contact with his face, but rather hit his glasses at the place where the earpiece is joined with the lens' frame. The contact with Counsel's glasses "hurt" and broke the frames. The glasses did not fall off of Counsel's face, however.

On questioning by the trial court, Counsel explained that, after he was permitted to withdraw from representing Defendant, elbow counsel was appointed to Defendant for his trial.³

Shelby County Sheriff's Deputy James C. Lafferty testified that he was the court bailiff on the day Defendant struck Counsel's glasses. He let Counsel in to and out of the interview room where Counsel met with Defendant. Deputy Lafferty testified that, as Counsel left the interview room, he appeared "kind of red, flustered-looking face, fixing his glasses saying let me out of here." Counsel did not appear to have any marks on his face, but appeared to be upset, nervous, and frustrated. Deputy Lafferty testified that Counsel told him that Defendant had "slapped" him. Deputy Lafferty did not witness the altercation, however.

Deputy Lafferty let Counsel into the courtroom and then returned to Defendant. Deputy Lafferty stated that, when he saw Defendant, Defendant "was sitting down in the witness room." Defendant was not yelling at Counsel and was "fine" when Deputy Lafferty took him to the "cell tank" and "secured him."

Deputy Lafferty asked Counsel if he wanted to charge Defendant. Counsel declined, saying that Defendant "was in too much deep water as it [was]." Accordingly, "[n]othing was ever written on" the incident.

Defendant was present at the hearing but did not testify.

After hearing the testimony, the trial court ruled as follows:

The proof that I have before me is [Counsel] testified. [Counsel] has been a lawyer practicing in these courts for a number of years. He testified that he was assigned as a public defender and worked on a daily basis in Division 5 where [Defendant's] case was set. He testified that on a prior occasion some couple of weeks prior to this [Defendant] had made the statement to him in a threatening manner as [Counsel] put it, "I know how to get rid of you."

Nothing else happened that particular day but he[,] [Counsel][,] testified that in his opinion, taken in light of everything else that was going on in Shelby County, more particularly the Tony Carruthers trial and the Robert Friedman trial, he took that as a serious threat from [Defendant] and it somewhat concerned him.⁴

However, again to [Counsel's] credibility, he testified he did not request that [Defendant] be shackled or cuffed when he went back to talk to him two weeks before the trial was to begin. And that [Defendant] then became aggressive in the back, jumped up, said you're going to do what I tell you to do and then poked him in the face with his finger and knocked his glasses askew, and [Counsel] then went out and reported that incident to [the...