State v. Stinson

• Decision Date: 08 January 1981
• Parties: STATE of Maine v. Robert STINSON.
• Court: Maine Supreme Court

Page 327

424 A.2d 327

STATE of Maine v. Robert STINSON.

Supreme Judicial Court of Maine.

Argued Sept. 11, 1980

Decided Jan. 8, 1981.

Henry N. Berry, III, Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., Darrell Nichols, Law Student Intern (orally), Portland, for plaintiff.

Farrell & Brunette, Ricky L. Brunette (orally), Portland, for defendant.

Before McKUSICK, C. J., GODFREY, NICHOLS and ROBERTS, JJ., and DUFRESNE, A. R. J.

DUFRESNE, A. R. J.

Following trial de novo before a Cumberland County jury of the Superior Court, Robert Stinson, the defendant-appellant, was convicted of the offense of criminal mischief in violation of 17-A M.R.S.A. § 806(1)(A) (Supp.1978) ¹ in connection with the first count of a complaint alleging that Stinson did intentionally and knowingly damage the property of the Central Maine Power Company, to wit, the passenger door of one of its trucks, causing a value loss of $99.00. He appeals from the ensuing judgment. We affirm the judgment.

On June 21, 1979, Howard Allen was driving a truck owned by his employer, Central Maine Power Company, along Route 117 from Hiram to Bridgton. Approximately four miles east of Harrison, Allen was in the act of passing by the defendant who had been seated by the edge of the road in a wheelchair, when Stinson stood and threw a rock at the truck, causing the window in the door on the passenger side to shatter.

The defendant's first points on appeal arise out of the following scenario. On April 14, 1980, after the jury had been impaneled and sworn, the defendant's counsel informed the presiding Justice that Stinson had requested him to withdraw. ² Although hired by the defendant on December 6, 1979 or thereabouts, the defendant's third attorney in the case did not file his appearance in the Superior Court until April 14, 1980, the day set for trial of the instant criminal complaint. After receiving the information that the defendant had asked his attorney to withdraw, the Court and Stinson had the following colloquy, which is reproduced in pertinent part:

"The Court: All right, I'm telling you. It's my understanding you wish to discharge this attorney? I have just made inquiry out in the criminal department as to ... regarding the possible appointment of another attorney. It's not possible at this point. You have had a jury panel impaneled picked, and it's going. Your case has to be tried now.

"Mr. Stinson: But your Honor, I feel my attorney is not fully prepared in this matter either.

"The Court: That I don't know anything about, that is a matter you have to take up with your attorney. In any event, at this point I'm not permitting Mr. ______ to withdraw as your counsel. The rules do not permit it, you have a jury panel that has been selected for trial. We cannot discharge that panel; that panel has to remain because of so-called double jeopardy which applies whenever a jury has been impaneled and sworn. Prior to that time continuances might be in order for various reasons, they are not thereon. So, if you have any question in mind about going forward to trial, at this point

"Mr. Stinson: Yes, I do, your Honor.

"The Court: What basis?

"Mr. Stinson: I still feel I would rather have better representation.

"The Court: That is something that you should have been deciding long before today." (Emphasis added)

The trial then proceeded with the attorneys for the State and the defendant making their opening remarks to the jury. The trial Justice at that point gave the jury cautionary instructions concerning their conduct during their absence from the courthouse and declared a recess at 4:17 p. m., continuing the case to the following morning at 9:30 a. m., April 15, 1980, at which time, when the parties were asked by the Court if they were ready to proceed, the defendant's attorney responded:

"The defendant is ready." (Emphasis added)

The State called two witnesses and Stinson elected to testify. The defendant's counsel conducted the entire defense and no further objection or comment was made either by counsel or the defendant personally respecting Stinson's alleged claim of the previous day that his counsel was inadequately prepared for trial.

1.

A

Although articulated in euphemistic terms of feeling his attorney was not fully prepared to try his case, the defendant contends that his representation to the trial Justice was sufficient to trigger a duty on the part of the court to make inquiry into the particulars of the stated charge, and, since the court failed to do so, there was reversible error, even in the absence of a showing of actual prejudice. No authority has been cited for such a per se rule and we are not about to adopt the defendant's contention.

The defendant rests this alleged claim of reversible error on the decision of the United States Supreme Court in Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), where the suggested rule was formulated to meet unique risks to sixth amendment rights generated by counsel representation of multiple criminal defendants. But joint representation of conflicting interests, insofar as constitutional adequacy of counsel representation of criminal defendants is concerned, is in itself potentially suspect, because of what it tends to prevent the attorney from doing, or to compel him to refrain from doing, not only at trial, but at other stages of the trial process such as in possible pretrial plea negotiations or in the sentencing procedure. Holloway, supra, 435 U.S. at 489-90, 98 S.Ct. at 1181-82. ³ The pretrial problems associated with identifying and curing conflict of interest in counsel representation of multiple criminal defendants are simply not comparable to the problems raised by the prospect of an attorney's inadequate preparation for trial. Hence, we decline to extend the special rule of Holloway to this phase of the instant case.

B

The right to counsel guaranteed by the Sixth Amendment is a fundamental right. Argersinger v. Hamlin, 407 U.S. 25, 29-33, 92 S.Ct. 2006, 2008-10, 32 L.Ed.2d 530 (1972). And this constitutional right made applicable to the States through the Fourteenth Amendment means that the States cannot sanction conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance. The constitutional mandate of adequate legal representation to criminal defendants applies, whether counsel is appointed or retained. Cuyler v. Sullivan, 446 U.S. 335, at 342-345, 100 S.Ct. 1708, at 1715-16, 64 L.Ed.2d 333, at 343-44 (1980). See State v. Sinclair, Me., 236 A.2d 66 (1967) ((a)n indigent accused is entitled to 'effective representation').

Stinson claims that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment, because, as he represented to the trial Justice, he felt his appointed counsel was not fully prepared to try the case and that he would rather have better representation. No one disputes the fact that adequate preparation for trial on the part of counsel is conducive to bringing about that effective trial representation to which all criminal defendants are entitled. But the defendant's mere statement to the trial court to the effect that his attorney was not fully prepared to proceed, without comment from counsel, does not establish in and of itself that the ensuing trial did in fact deny the defendant his constitutional right of adequate counsel representation, nor did the failure of the court to probe the details of the defendant's complaint automatically make out a case of abuse of judicial discretion. In State v. Simmonds, Me., 313 A.2d 120 (1973), a similar disclosure to the court by trial counsel prior to the commencement of trial caused this Court to say:

"it fails to follow that in each and every situation counsel's representation that he considers himself inadequately prepared per se establishes that the denial of a continuance, in the face of such expressed 'opinion', is automatically an abuse of judicial discretion."

See also Commonwealth v. LaFleur, 1 Mass.App. 327, 296 N.E.2d 517 (1973).

Furthermore, counsel representing a defendant in a criminal case is in the best position professionally and under his obligations to his client and to the court as an officer thereof seasonably to make an informed determination on the adequacy of his trial preparation, and, when he is in fact inadequately prepared to proceed with the case, it is his duty so to advise the court. His declarations to the court should carry more persuasiveness than the mere statements of the criminal defendant himself who oftentimes will take refuge in such an excuse merely to seek postponement of the inevitable day of reckoning before the court of justice. The court's dismissal of defendant's bare statement of unpreparedness for trial, in the face of counsel's failure to actively support such a claim, without further inquiry into the matter, falls far short of proving judicial abuse of discretion. See Holloway, supra, 435 U.S. at 485-86, 98 S.Ct. 1179.

C

If Stinson's present claim that he was not provided with effective assistance of counsel at trial because of unjustified unpreparedness of his attorney is intended to predicate constitutional infirmity in the judgment of conviction on the ground of incompetency of his trial counsel, then, this alleged point raised on direct appeal is not cognizable by us, but, as is generally the case, must await consideration in collateral post-conviction proceedings. See State v. Simmonds, supra, at 124-25; State v. LeBlanc, Me., 290 A.2d 193, 202 (1972).

D

The defendant argues that his express complaint to the trial Justice of his attorney's alleged unpreparedness for trial should have gotten him a continuance of the case to allow sufficient time for effective substitution of counsel and the court's failure to do so was reversible error. We disagree. It is obvious from the defendant's colloquy with the court that Stinson, for undisclosed reasons,...