State v. Renshaw

Decision Date06 November 1975
Docket NumberNo. 40,40
Citation276 Md. 259,347 A.2d 219
PartiesSTATE of Maryland v. David Herbert RENSHAW.
CourtMaryland Court of Appeals

Alexander L. Cummings, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Ralph J. Moore, Jr., Bethesda (H. Michael Hickson, Easton, and Shea & Gardner, Washington, D.C., on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE and O'DONNELL, JJ.

LEVINE, Judge.

This case arises out of appellee's conviction in the Circuit Court for Cecil County on charges of escape and assault and battery. On appeal, the Court of Special Appeals reversed and remanded the case for a new trial, citing the failure of the trial court to comply with Maryland Rule 719 c which deals with waiver of the right to counsel. Renshaw v. State, 25 Md.App. 270, 333 A.2d 363 (1975). We granted a writ of certiorari to consider the question whether appellee was denied his right at trial to the assistance of counsel for his defense.

On May 14, 1974, appellee was charged in a two-count indictment with the crimes of escape and assault and battery allegedly committed on February 16th of that year while he was confined at the Cecil County jail. At his arraignment on May 22, appellee pleaded not guilty and elected to be tried by a jury. On that same date, Daniel H. Bathon, Esq., entered his appearance as appellee's attorney pursuant to his appointment by the Office of Public Defender.

When appellee appeared for trial on June 4, 1974, Mr. Bathon advised the court of his efforts on behalf of appellee prior to trial. 1 Mr. Bathon further advised the court that appellee had nevertheless expressed dissatisfaction with his representation, that appellee wished to enter a plea of not guilty by reason of insanity and to move for a change of venue, '(a)nd also (that) he would like to have new counsel appointed this morning.'

After denying the requested change of venue and directing the clerk to enter the insanity plea, the court asked appellee why he desired to change counsel. Appellee replied that he thought Mr. Bathon had no 'faith' in what he (appellee) had told him, that counsel believed him to be lying, and that he lacked confidence in Mr. Bathon. The court then denied the request for appointment of new counsel, saying:

'. . . (W)hile the Court would in no sense require Mr. Bathon to-or require you to accept Mr. Bathon, require the Defendant to accept Mr. Bathon to represent him, the Court at the same time is not going to, and does not have to, and should not in all good conscience, delay the administration of justice because of a last minute decision, unannounced until this morning, that you want different counsel. What the Court will do is have Mr. Bathon stand by and you, if you desire to make any use of Mr. Bathon, that is entirely up to you. You do not have to use him. You can conduct your own case if you would like. We certainly are not forcing him upon you, but he will be available if you need him for anything and if you do not need him for anything, please just disregard his presence.'

The court then explained to appellee the procedure to be followed in regard to the insanity plea and, when again asked by appellee whether new counsel would be appointed, repeated its earlier ruling. Following this exchange, the prospective jurors were brought into the courtroom, and the court then instructed appellee on the procedure for selecting a jury. Appellee replied: 'Your Honor, I want to remain silent from here on out. As far as I am concerned, I do not feel that I am being helped by Mr. Bathon here . . . as my counsel, and since I do not know the court procedures or anything about selection of jury, I am going to remain silent and for whatever happens from here on out.' (emphasis added).

After the jury had been empaneled and sworn, the prosecuting attorney made an opening statement to the jury. Mr. Bathon then asked appellee if he wished him to make an opening statement on his behalf. When appellee did not respond to this inquiry, the court called him and counsel to the bench. There, this colloquy occurred:

'THE COURT: Gentlemen, Mr. Bathon, I realize what an awkward position you are in and I will explain to the Jury after the case is all over that Mr. Renshaw has elected to proceed without your help. But, if I were you, I would not do anything unless Mr. Renshaw asks you to do it. . . .' (emphasis added).

The court then advised appellee of his right to cross-examine witnesses to present witnesses on his own behalf, and of his right to testify in his own defense or to refrain from doing so without subjecting himself to an adverse inference.

Throughout the trial, the court addressed appellee directly, though Mr. Bathon was continuously present. The state called four witnesses, and at the conclusion of the direct examination of each witness, the court asked appellee whether he had any questions. In each case appellee remained silent. Likewise, the court received no reply when certain procedural steps were explained to appellee. Neither appellee nor Mr. Bathon made any motions, requested sequestration of witnesses, registered any objections, conducted any cross-examination, called any witnesses, presented any evidence, or noted any exceptions to the jury instructions.

Since no evidence of appellee's insanity had been presented, the court did not submit that issue to the jury. Appellee was found guilty under both counts of the indictment, and court was then adjourned until later that day. When the court resumed its session, Mr. Bathon was granted permission to confer with appellee. Having been authorized by appellee to do so, Mr. Bathon repeated an alleged confession for the record as part of his presentation of mitigating circumstances. The court then imposed concurrent sentences of 15 years for the assault and battery and 10 years for the escape.

In sum, the trial judge treated appellee's expression of dissatisfaction with assigned counsel, his request for a change of counsel and his silence as a waiver of the right to counsel and an election to proceed in proper person. The Court of Special Appeals concurred in this, holding that appellee's rejection of his assigned attorney "indicates . . . (an) inclination to waive representation," but concluded that the trial judge should have complied with the requirements of Rule 719 c. 2

We shall affirm the decision of the Court of Special Appeals, not because we think the trial court erred by allowing appellee to waive his right to counsel without first observing the requirements of Rule 719 c, but because in our opinion he had not waived and was instead denied his constitutional right to counsel.

The Sixth Amendment to the United States Constitution provides that '(i)n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.' The Due Process Clause of the Fourteenth Amendment guarantees the same right to the assistance of counsel, including the right to the appointment of counsel in the case of the indigent defendant, in state criminal prosecutions. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963).

Central to the cases dealing with the right to counsel is the recognition that the assistance of a lawyer is essential to assure a fair trial. See Argersinger v. Hamlin, supra; Gideon v. Wainwright, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527 (1932). Thus in Powell v. Alabama, supra, 287 U.S. at 68-69, 53 S.Ct. at 64, the Supreme Court observed:

'The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him.'

The ordinary criminal defendant, being even less able than the 'intelligent and educated layman' referred to in Powell, is in yet a more difficult situation if he undertakes to defend himself.

Consequently, because '(e)ssential fairness is lacking if an accused cannot put his case effectively in court,' Adams v. U. S. ex rel. McCann,317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 143 A.L.R. 435 (1942), and because it is unlikely that an accused will be able to present his case effectively without the assistance of counsel, a conviction cannot be allowed to stand where the accused is not represented at trial by counsel unless it be determined that there was an intelligent and competent waiver by the accused. Adams v. U. S. ex rel. McCann, supra; Johnson v. Zerbst, supra; see Ware v. State, 235 Md. 131, 200 A.2d 664 (1964). To assure protection of so fundamental a right, courts indulge every reasonable presumption against waiver, Johnson v. Zerbst, supra, 304 U.S. at 464, 58 S.Ct. 1019, and do not permit waiver to be presumed from a silent record, Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Manning v. State, 237 Md. 349, 352, 206 A.2d 563 (1965). It must appear affirmatively on the record that the accused was offered counsel but intelligently and understandingly rejected the offer. Carnley v. Cochran, supra, 369 U.S. at 516, 82 S.Ct. 884; Manning v. State, supra. Rule 719 c summarizes the requirements in Maryland for protection of the right to counsel where the accused indicates a desire to waive the right.

As the state readily concedes, at no time did appellee indicate a desire or inclination to waive representation. Nor did he express a desire to proceed in...

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