State v. Sweeney

• Decision Date: 24 January 2005
• Docket Number: No. 2003–578.,2003–578.
• Citation: 867 A.2d 441,151 N.H. 666
• Court: New Hampshire Supreme Court
• Parties: The STATE of New Hampshire v. John SWEENEY.

151 N.H. 666

867 A.2d 441

The STATE of New Hampshire

v.John SWEENEY.

No. 2003–578.

Supreme Court of New Hampshire.

Argued: Oct. 13, 2004.

Opinion Issued: Jan. 24, 2005.

Kelly A. Ayotte, attorney general(Susan P. McGinnis, assistant attorney general, on the brief and orally), for the State.

Twomey & Sisti Law Offices, of Chichester (Mark L. Sisti on the brief and orally), for the defendant.

GALWAY, J.

The defendant, John Sweeney, appeals his convictions by a jury for one count of aggravated felonious sexual assault, seeRSA 632–A:2, III (Supp.2004), and one count of felonious sexual assault, seeRSA 632–A:3, II (Supp.2004).We reverse and remand.

On appeal, the defendant argues that the Superior Court(Smith , J.; Perkins , J.; Smukler , J.) erred by denying his motions: (1) to fire his trial attorney; (2) to introduce certain medical records; (3) for services other than counsel; (4) to strike four jurors; (5) for a bill of particulars; and (6) to dismiss.The defendant also contends that the trial court erroneously failed to engage in a colloquy with him regarding his waiver of his privilege against self-incrimination.

I

On the first day of trial, before the jury was sworn in, the court conducted a hearing regarding whether the tapes of certain recorded conversations were authentic.During the prosecution's direct examination of a witness, the defendant asked if he could speak to the trial judge "privately."The trial judge replied, "No, sir.It's not allowed."When the defendant again attempted to speak to the trial judge, the following exchange occurred:

THE COURT: Mr. Sweeney, you are represented by very, very competent counsel.One of the things that lawyers worry about a great deal is somebody saying something that's going to harm their case.For that reason, we have a general rule that we do not allow individuals who are represented by counsel to speak unless they've been put on the stand by their lawyer.

MR. SWEENEY: Yes, sir, I understand that.You told me that the other day.But this tape number two—

THE COURT: Mr. Carroll will make any arguments for you that have to be made.

MR. SWEENEY: He's refused to make that argument, your Honor.

THE COURT: Well, then, as long as you're represented by him, Mr. Sweeney, then you have to pay attention to him.

MR. SWEENEY: Well, sir, do I have the right to fire my lawyer?

THE COURT: At this point in time, no.We're on the verge of starting the jury trial, sir.You've been represented by Mr. Carroll—

MR. SWEENEY: For ten months, sir.

THE COURT: Yes.Okay.

MR. SWEENEY: And I wasn't aware of this false statement until 22 March, sir.And this tape was overprinted and on Saturday last week, the overprint was missing from the tape when I heard it again.I've only heard the tape twice.And now it's missing.

THE COURT: You're speaking again, sir.You should let Mr. Carroll do your talking.

MR. SWEENEY: Your Honor, I'm entitled to a fair trial.

THE COURT: That's right.

MR. SWEENEY: And I don't believe, like I stated in my arraignment, I'm getting a fair trial because of this gentleman over here.

THE COURT: Well, I can disagree with you because number one—

MR. SWEENEY: That's fine, your Honor, thank you.

THE COURT: Thank you.Proceed.

(Emphasis added.)

The defendant argues that in this exchange, he"clearly and unequivocally expressed his desire to fire his attorney and to represent himself."He asserts that the trial court violated his State and federal constitutional rights and committed reversible error by summarily denying his request.SeeN.H. CONST. pt. I, art. 15;U.S. CONST. amends. V, VI, XIV.We first address the defendant's claim under the State Constitution, relying upon federal decisions for guidance only.State v. Ball,124 N.H. 226, 231–33, 471 A.2d 347(1983).

Both Part I, Article 15 of the State Constitution and the Sixth Amendment to the United States Constitution guarantee a criminal defendant the right to self-representation and the right to counsel.State v. Ayer,150 N.H. 14, 25, 834 A.2d 277(2003), cert. denied , 541 U.S. 942, 124 S.Ct. 1668, 158 L.Ed.2d 366(2004);see alsoFaretta v. California,422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562(1975).The two rights are mutually exclusive; the exercise of one right nullifies the other.Ayer , 150 N.H. at 25, 834 A.2d 277.To be effective, an assertion of the right to self-representation must be: (1) clear and unequivocal; (2) knowing, intelligent and voluntary; and (3) timely.SeeState v. Thomas,150 N.H. 327, 328, 840 A.2d 803(2003);see alsoAyer , 150 N.H. at 26, 834 A.2d 277.

The requirement that asserting the right to self-representation be clear and unequivocal "is necessary to protect against an inadvertent waiver of the right to counsel by a defendant's occasional musings on the benefits of self-representation."United States v. Frazier–El,204 F.3d 553, 558(4th Cir.), cert. denied , 531 U.S. 994, 121 S.Ct. 487, 148 L.Ed.2d 459(2000)(quotations omitted).It "also prevents a defendant from taking advantage of and manipulating the mutual exclusivity of the rights to counsel and self-representation."Id. at 559.

To invoke the right to self-representation, a defendant need not "recite some talismanic formula."Buhl v. Cooksey,233 F.3d 783, 792(3d Cir.2000);see alsoUnited States v. Betancourt–Arretuche,933 F.2d 89, 92–93(1st Cir.), cert. denied , 502 U.S. 959, 112 S.Ct. 421, 116 L.Ed.2d 441(1991)."Indeed, such a requirement would contradict the right it was designed to protect as a defendant's [constitutional] right of self-representation would then be conditioned upon his/her knowledge of the precise language needed to assert it."Buhl , 233 F.3d at 792.However, "it is generally incumbent upon the courts to elicit that elevated degree of clarity through a detailed inquiry.That is, the triggering statement in a defendant's attempt to waive his right to counsel need not be punctilious; rather, the dialogue between the court and the defendant must result in a clear and unequivocal statement."United States v. Proctor,166 F.3d 396, 403(1st Cir.1999).

The State argues that the defendant's request was neither clear nor unequivocal.While we agree with the State that the defendant's question did not, by itself, constitute a demand to proceed pro se , seeCommonwealth v. Myers,51 Mass.App.Ct. 627, 748 N.E.2d 471, 475(2001), we hold that it was sufficient to trigger the court's duty to inquire further, seeProctor , 166 F.3d at 405–06.

The trial court had the duty to eliminate the ambiguity the question presented.Seeid."Once the defendant makes a sufficiently clear request to indicate an intention to switch representational gears, further judicial inquiry is necessary to clarify the nature of those changed intentions."Id. at 405 n. 11.We do not hold that a trial judge must explicitly inform a defendant of his right to proceed pro se .Indeed, such a requirement could lead "to a defendant's making a choice which is ordinarily not in his best interest."Myers , 748 N.E.2d at 476.Nor do we hold that a court must, in all cases, conduct a formal colloquy.SeeThomas , 150 N.H. at 329–30, 840 A.2d 803.Nevertheless, it was the court's obligation in this case to explore what the defendant meant by asking if he had the right to fire his counsel.The court could have easily done so by asking the defendantwhyhe wanted to fire his counsel and how he wished to proceed if permitted to do so.

Presumably, the defendant asked the question because he wanted either to represent himself or to replace his attorney.Both of these are constitutionally protected choices.SeeAyer , 150 N.H. at 25, 834 A.2d 277;see alsoUnited States v. Myers,294 F.3d 203, 206–07(1st Cir.2002).

The State contends that the defendant's request, either to proceed pro se or to fire his attorney, was untimely.To the contrary, a request to proceed pro se is timely if made before the jury is empanelled.Betancourt–Arretuche , 933 F.2d at 96.Moreover, although a request for a new attorney made on the first day of trial is untimely, timeliness is but one factor for evaluating a trial court's denial of a motion for substitute counsel.United States v. Woodard,291 F.3d 95, 107(1st Cir.2002).Other factors include "the adequacy of the court's inquiry into the defendant's complaint, and whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense."Id.(quotation omitted).

The State further asserts that the defendant's objections to his current counsel were unfounded.Because of the court's lack of inquiry, we are unable to assess this contention.SeeUnited States v. Prochilo,187 F.3d 221, 228(1st Cir.1999).We have no information as to the nature and extent of any conflict between the defendant and his attorney.Seeid.While we may infer from the record that the defendant was dissatisfied with his counsel because he did not make a particular argument, absent any court inquiry, we cannot confirm that this inference is correct.Seeid. at 227–28.If the record established that this was the source of the defendant's dissatisfaction, we might agree with the State that denying a request for new counsel would have been a sustainable exercise of discretion.SeeWoodard , 291 F.3d at 108–09(substitution of attorney not warranted because of attorney's failure to file motion he considered to be meritless; "[a]n attorney is not obligated to pursue weak options when it appears, in light of informed professional judgment, that a defense is implausible or insubstantial")(quotation omitted).

Nor can we presume that the court addressed his objections, or the defendant withdrew them, merely because he voiced no further complaints.Having been told that he had no right to fire his attorney, he could have assumed that he had no choice but to continue with appointed counsel.SeeProctor , 166 F.3d at 404.

The record simply does not provide a basis for sustaining ...