State v. Morrison

• Decision Date: 04 January 1990
• Citation: 567 A.2d 1350
• Parties: STATE of Maine v. Richard MORRISON.
• Court: Maine Supreme Court

Page 1350

567 A.2d 1350

STATE of Maine v. Richard MORRISON.

Supreme Judicial Court of Maine.

Argued Nov. 15, 1989.

Decided Jan. 4, 1990.

David W. Crook, Dist. Atty., Alan P. Kelley, Deputy Dist. Atty. Pamela J. Ames (orally), Asst. Dist. Atty., Augusta, for the State.

Peter B. Bickerman (orally), Lipman & Katz, P.A., Augusta, for defendant.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD, and HORNBY, JJ.

McKUSICK, Chief Justice.

In his Superior Court (Kennebec County, Alexander J.) jury trial on charges of rape, gross sexual misconduct, unlawful sexual contact, and assault, ¹ Richard Morrison, a former Maine State Police trooper, represented himself until after the jury returned a guilty verdict on all counts. Soon thereafter, and before sentencing, Morrison through retained counsel moved for a new trial, contending that he had not made a knowing and intelligent waiver of his federal and state constitutional right to counsel. After a testimonial hearing on March 10 and May 1, 1989, the court denied his motion, entered judgment on the jury verdict, and imposed sentence. Morrison appeals, again relying principally on his defective-waiver-of-counsel argument. We also reject that argument.

I.

Morrison had appeared pro se both at his arraignment and later at the docket call preceding trial, and on both occasions in colloquy with the court (Brody, C.J.) he expressly declared his desire to represent himself at trial without an attorney. The implicit finding of fact made by both the justice presiding in pretrial matters and by the justice at trial, that Morrison's waiver of counsel and election to represent himself were knowing and intelligent, was made explicit in the trial justice's opinion denying Morrison's motion for a new trial. To prevail on appeal, Morrison must persuade us that the Superior Court justices' factual finding of knowing and intelligent waiver was clearly erroneous. ² We are not so persuaded.

"Whether an accused has properly waived his right to counsel must be determined by the trial court based on the particular facts and circumstances of each case." State v. Walls, 501 A.2d 803, 805 (Me.1985) (citations omitted). As established long ago by Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938):

The determination of whether there has been an intelligent waiver of right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.

We review "the record in the light most favorable to the court's ruling to determine whether the record will support a finding of a knowing and intelligent waiver." State v. Walls, 501 A.2d at 805. Here the question is, then, whether Morrison at the critical times in fact knowingly and intelligently chose to represent himself; whether Morrison "[knew] what he [was] doing and his choice [was] made with eyes open." Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)).

Normally the record on a direct appeal is not adequate for us to review a defendant's claim that his waiver of counsel was defective. As we recognized in State v. Walls, post-conviction review is "a proceeding more conducive to the development of evidence that is more sharply focused" on "the particular facts and circumstances surrounding that case," including the background, experience, and conduct of the accused, 501 A.2d at 805-06, all of which are made determinative by Johnson v. Zerbst, 304 U.S. at 464, 58 S.Ct. at 1023. In the case at bar, however, the record on direct appeal is adequate for our review. The presentence proceedings on Morrison's motion for a new trial were the functional equivalent of post-conviction proceedings in that both Morrison and the State had an unrestricted opportunity to develop all the evidence "sharply focused" on the particular facts and circumstances of Morrison's waiver of counsel at his just-completed trial.

After hearing the evidence on Morrison's motion for a new trial, the trial court affirmatively found that:

The defendant was knowledgeable of his right to counsel, and having considered the risks or at least having been made aware of the risks, chose to represent himself.... In the context of this case, with the advice provided to the defendant by family and friends, the court has no question that the defendant reached a knowing and intelligent decision to represent himself in this matter.

A plenitude of evidence supports this factual finding. During his years in law enforcement Morrison had had court experience in helping the prosecution in at least two felony cases and many lesser cases. After his indictment he was repeatedly urged to engage counsel by his wife, by fellow members of the Maine State Police, and by other friends. For example, one of Morrison's best friends in the State Police, himself knowledgeable in criminal matters from his law enforcement career, spent 45 minutes to an hour on the telephone with Morrison trying to persuade him to hire a lawyer or at least to consult one. Morrison's wife went further and contacted a lawyer, the lawyer who eventually represented Morrison at the motion for new trial and in this appeal, only to have Morrison become angry with her and refuse the lawyer's help.

In the month before trial Morrison met several times with the District Attorney, who, as the trial justice found, repeatedly advised Morrison "of the risks of self-representation, the fact that he would be opposed by skilled counsel and the importance of having skilled counsel to assist him." In the packet of discovery materials turned over by the District Attorney, Morrison received a copy of the sentencing rules that the District Attorney understood from experience that the trial justice generally followed, and so Morrison was made aware in very concrete terms of the substantial sentence he was facing. Although none of these persons thus involved with Morrison had any legal responsibility to warn him of the risks he assumed by proceeding pro se, the fact that they did give him these repeated warnings confirms as a fact that he made the choice to go it alone "know[ing] what he was doing and ... with [his] eyes open." The trial justice specifically found that Morrison "present[ed] himself in court and otherwise as a bright, self-confident, polite and knowledgeable individual." He did not refuse counsel for financial reasons. Morrison had a strongly held dislike of attorneys, and despite repeated warnings he never budged from his early decision to conduct his own defense at trial.

The question here is not whether in hindsight it appears that Morrison acted in his own best interest or made an objectively wise decision to represent himself. The record reflects that he made an informed decision to proceed pro se--as is his constitutional right--in what he believed at that time to be his own best interest. The Superior Court made no clear error in finding a knowing and intelligent waiver of counsel.

Once we uphold the Superior Court's finding that Morrison in fact waived counsel knowingly and intelligently, nothing is left to his waiver of counsel issue on this appeal. We refuse to create any kind of prophylactic rule by which the conviction of any pro se defendant would be automatically vacated, regardless of the particular facts and circumstances surrounding that defendant's waiver of counsel, if the trial court failed to give the defendant Miranda-like warnings of the risks of self-representation and the benefits of counsel on the record. Neither Supreme Court case law nor our own lays out any such prophylactic rule. If our recent opinion in State v. Tomah, 560 A.2d 575 (Me.1989), can be read to that effect, we take this opportunity to disavow that reading.

II.

Count 6 of the indictment charged Morrison with unlawful sexual contact with the then 13-year-old victim during the summer of 1985. The State concedes that the record contains only evidence of a "sexual act" during the summer of 1985 and no evidence of "sexual contact" within the definition of 17-A M.R.S.A. § 251(D) (Supp.1989). ³ Morrison therefore must be acquitted on Count 6 because although the record supports the rape conviction during that summer, the evidence does not sustain the jury verdict of unlawful sexual contact. See State v. Walker, 512 A.2d 354, 356 (Me.1986) ("sexual act" distinguished from "sexual contact").

III.

We find no merit in any of defendant's other contentions on appeal. Since Morrison did not object at trial to any of the alleged errors, we must apply an "obvious error" standard of review. See State v. True, 438 A.2d 460, 467-69 (Me.1981). When we do, we find in each instance that if any error at all exists, it is not one that "is so highly prejudicial and so taints the proceeding as virtually to deprive [defendant] of a fair trial." Id. at 468 (quoting State v. Langley, 242 A.2d 688, 690 (Me.1968)).

Literally read, the record suggests that the trial court may have instructed Morrison that he could put on character witnesses to testify as to his reputation for truthfulness only if the court called his truthfulness into question. Despite any such misstatement, however, Morrison testified at the new trial hearing that he felt free to present character witnesses if the State had attacked his credibility. Furthermore, since the State in fact at trial never raised such an attack, "evidence in support of the defendant's reputation for truth and veracity [was] not admissible." State v. Wells, 423 A.2d 221, 226 (Me.1980); M.R.Evid. 608.

Contrary to Morrison's further contentions, we find no "prosecutorial misconduct" that approaches the standard of obvious error. In denying the motion for new trial the trial court found that the District Attorney had committed no discovery...