State v. LaBare

• Decision Date: 15 February 1994
• Citation: 637 A.2d 854
• Parties: STATE of Maine v. Richard N. LaBARE.
• Court: Maine Supreme Court

Page 854

637 A.2d 854

STATE of Maine v. Richard N. LaBARE.

Supreme Judicial Court of Maine.

Argued Jan. 3, 1994.

Decided Feb. 15, 1994.

Geoffrey Rushlau, Dist. Atty., Leane Zainea (orally) Asst. Dist. Atty., Rockland, for plaintiff.

William S. Maddox (orally), Rockland, for defendant.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, COLLINS, RUDMAN and DANA, JJ.

COLLINS, Justice.

Richard N. LaBare appeals the judgments entered in the Superior Court (Knox County, Perkins, J.) following a jury trial, convicting him of eight counts: two counts of terrorizing with a dangerous weapon, 17-A M.R.S.A. § 210 (1983); three counts of assault, 17-A M.R.S.A. § 207 (1983); one count tampering with a victim, 17-A M.R.S.A. § 454 (Supp.1993); one count for violation of a protection from abuse order, 15 M.R.S.A. § 321 (Supp.1993); and one count for violation of condition of release, 15 M.R.S.A. § 1092 (Supp.1993). We reject LaBare's contention that the trial court erred in not providing him with substitute counsel and a continuance after the trial had commenced and we affirm the judgments.

In November 1991 LaBare was arrested twice following incidents in which he assaulted his estranged girlfriend Susan Doyle. After he was indicted, LaBare's court-appointed defense attorney worked with him for several months preparing for trial. Trial began on May 13, 1992. The State presented Susan Doyle as its first witness. LaBare's attorney cross-examined her before court adjourned for the day. The next morning, LaBare's attorney informed the court that LaBare was requesting that she be replaced. LaBare told the court that he was unhappy with his attorney's representation because she had advised him to plead guilty. LaBare requested the court to appoint substitute counsel and grant a continuance. The court refused to appoint new counsel, but did allow LaBare to meet with another attorney for several hours. When that attorney was unable to take over LaBare's defense, the court gave LaBare the choice of proceeding with his court-appointed attorney of record, or going forward pro se, but with his attorney staying at his side in an advisory capacity. LaBare reluctantly agreed to the latter alternative.

LaBare conducted his own defense, with his standby attorney assisting at various points in the trial. The jury found LaBare guilty on eight of nine charges. LaBare was appointed new counsel to assist in his appeal.

I.

LaBare raises three points on appeal with regard to his representation. First, he argues that the trial court erred in not granting his request for substitute counsel and a three-day continuance. Second, he contends that his representation was inadequate. Third, he argues that he did not knowingly and intelligently waive his right to counsel.

As to the first point, we will reverse the trial court's decision to deny the defendant's request for a continuance to replace counsel only on a showing of clear abuse of discretion. State v. Ayers, 464 A.2d 963, 967 (Me.1983). We reject LaBare's contention that the trial court's directive that the trial proceed was "an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay.' " Id. (quoting Morris v. Slappy, 461 U.S. 1, 11-12, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983)). The trial court explained to LaBare that it could not grant a continuance without a showing that his defense attorney had so failed in her responsibility to him that his interest would be jeopardized by her continued representation. LaBare could not make such a showing. In fact, the record reveals that up to the moment at which LaBare requested substitute counsel, his attorney had demonstrated her capability and willingness to assist him in his defense. See State v. Winchenbach, 501 A.2d 1282, 1285 (Me.1985). Although it would have been better for the trial court to have made a specific finding as to the adequacy of the representation afforded defendant, we cannot say that it was a clear abuse of discretion for the court to have denied LaBare's midtrial request for substitute counsel and a three-day continuance.

With regard to LaBare's second contention, that is, that he was denied effective assistance of counsel, such a claim is usually reserved for post-conviction review. "When raised on direct appeal, such a claim will not even be considered unless the record discloses, beyond the possibility of rational disagreement, that the defendant was inadequately represented." State v. Reynoso, 604 A.2d 441, 442 (Me.1992). LaBare argues that the court's order that his attorney serve in a standby capacity resulted in a "constructive denial" of the assistance of counsel, thereby prejudicing his defense. See Strickland v. Washington, 466 U.S. 668, 692, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 674 (1984). We reject this argument. The trial court's insistence that LaBare's attorney continue to sit at the defense table and provide assistance when he needed it, which indeed she did at various points during the proceedings, was not denial of assistance. The court acted to protect LaBare's interest. It was his decision to proceed with his own defense. Moreover, LaBare is unable to show that but for "counsel's unprofessional errors," the result would have been...