State v. Willis

• Decision Date: 06 July 2009
• Docket Number: No. E2008-01105-CCA-R9-DD.,E2008-01105-CCA-R9-DD.
• Citation: 301 S.W.3d 644
• Court: Tennessee Court of Criminal Appeals
• Parties: STATE of Tennessee v. Howard Hawk WILLIS.

301 S.W.3d 644

STATE of Tennessee v. Howard Hawk WILLIS.

No. E2008-01105-CCA-R9-DD.

Court of Criminal Appeals of Tennessee, at Knoxville.

May 19, 2009 Session.

July 6, 2009.

Application for Permission to Appeal Denied by Supreme Court November 23, 2009.

Gerald L. Gulley, Knoxville, Tennessee, for the appellant, Howard Hawk Willis.

Robert E. Cooper, Jr., Attorney General and Reporter; Michael E. Moore, Solicitor General; James E. Gaylord, Assistant Attorney General; Anthony Wade Clark, District Attorney General; and Dennis Brooks, Assistant District Attorney General, for the appellee, State of Tennessee.

OPINION

JAMES CURWOOD WITT, JR., J., delivered the opinion of the court, in which JOSEPH M. TIPTON, P.J., and NORMA McGEE OGLE, J., joined.

In this capital murder case, the defendant, Howard Hawk Willis, brings an interlocutory appeal from the Washington County Criminal Court's order that the defendant both implicitly waived and forfeited his right to be represented by counsel on four counts of first degree murder¹ and three counts of abusing corpses. Because the record supports the order of the trial court, we affirm and remand the case for further proceedings.

The case comes to this court via Tennessee Rule of Appellate Procedure 9. See Tenn. R.App. P. 9. Following a series of changes in counsel, most of which were prompted by the lawyers' motions to withdraw, the trial court ultimately held that the defendant had implicitly waived and forfeited his Sixth Amendment right to counsel.

The trial court initially appointed two lawyers to represent the indigent defendant. Lead counsel had practiced for 36 years and had handled approximately 20 capital cases. None of his clients had been placed on "death row." In the defendant's case, counsel filed numerous and extensive motions supported by legal memoranda. The motions included a motion to suppress upon which the trial court conducted a lengthy evidentiary hearing.

First change of counsel

With the trial scheduled for April 11, 2005, the defendant, acting pro se, moved the court on March 14, 2005, to discharge his counsel and to appoint new counsel. On the same day, both attorneys moved to withdraw, alleging that the "attorney client relationship has deteriorated to such an extent that the attorneys should be permitted to withdraw" and that they had "encountered constant difficulty in obtaining the cooperation of the defendant in the preparation of the defense." Counsel further alleged:

The defendant has consistently refused to cooperate in providing requested information. He has insisted that the attorneys pursue factual investigations unrelated to this case; . . . that they file unrelated lawsuits against individuals involved in this case. The defendant has insisted that the attorneys obtain evidence for him to review and then refused to review the evidence. He had demanded that he receive medical treatment and then refused to accept the treatment when it was provided. He has instructed defense investigators to conduct investigations not specifically authorized by the attorneys and to withhold information from the attorneys. He has accused some associated with the defense investigation of working for the State. His conduct in regard to the efforts of the attorneys to prepare this case can be best described as "stone-walling."

On March 15, 2005, the trial court conducted an extensive hearing in which it reviewed each of the 55 complaints the defendant had leveled against his attorneys. The court expressed concern that lead counsel and co-counsel had worked on the case for one and one-half years. The court, after reviewing the defendant's complaints one by one, found them to be baseless and denied the defendant's motion to discharge counsel. At one point in the dialogue with the defendant, the trial judge remarked that ultimately the defendant may be "representing [himself] in this." The judge opined that the defendant had shown that he was "virtually impossible to communicate with."

On March 18, the court conducted further hearing on counsels' motions to withdraw. The judge stated that both lead counsel and co-counsel were very experienced, effective lawyers and indicated that "the whole problem [was] caused by [the defendant]." The judge further commented,

[I]t appears to the court that what he is doing — he's manipulative. He's looking — he's come within less than a month of a trial date, and he wanted things reheard [on the motion to suppress] he couldn't get heard. He managed to do that through the back door. . . . But, he is coming close to forfeiting his right to counsel. This court is not going to continue appointing counsel forever. . . . [T]he court finds in this case that [the defendant] has unreasonably requested counsel to withdraw. At this point I don't think the court has any option but to allow [counsels'] motion to be relieved as counsel.

. . . .

[If] I were the parent of . . . either of [the victims], . . . I would think the system is absolutely crazy; that — that somebody in [the defendant's] shoes can manipulate the system; can refuse to acknowledge what the law is; refuse to assist counsel; refuse to answer questions; refuse to look at evidence; and refuse to acknowledge the controlling authority in the law and — result in — in manipulation of the system and his case being continued because of new lawyers. The problem with the situation is that the court finds that [counsel] just cannot under the requirements of the ethics of the profession represent him, even though, it is entirely his fault.

Thus, the trial court granted counsels' motion to withdraw and appointed the First District Public Defender to represent the defendant. The trial court then had the defendant sworn and asked him, "[D]o you understand that — that if you cause the conflict with your next set of lawyers that you may very well [be] representing yourself?" The defendant responded, "I do." The court then addressed a series of questions to the defendant as a means of assuring that he understood the implications of defending a capital murder case without representation of counsel.

The trial court canceled the April 11, 2005 trial setting.

Second change of counsel

On April 4, 2005, the First District Public Defender moved to withdraw, citing conflicts of interests among members of the defendant's family and assistant public defenders. On April 5, 2005, the trial court granted this motion and appointed the Second District Public Defender to represent the defendant.

Third change of counsel

On the same day, April 5, 2005, the Second District Public Defender moved the court to vacate the appointment order on the grounds that the trial court was not authorized to appoint "a district public defender outside of their specific district." The trial court agreed and appointed new lawyers to represent the defendant.

Fourth change of counsel

On May 25, 2005, the newly appointed attorney moved to withdraw on the basis of serious illness in his immediate family. On May 31, 2005, the trial court granted the motion and appointed two other lawyers to serve as new counsel.

In August 2005, the trial court reset the trial for January 30, 2006.

Fifth change of counsel

On September 28, 2005, the defendant's lead counsel moved to withdraw from the case on the ground that a conflict of interests had emerged when the defendant filed a complaint against counsel with the Board of Professional Responsibility ("BPR"). The court conducted a hearing on November 7, 2005. Lead counsel, who had practiced law for 21 years, stated that the defendant had claimed in a complaint to the BPR that counsel had not read the discovery materials in the case. Counsel characterized the defendant as "a blatant prevaricator" and added, "This is the type of behavior that [the defendant] persists in. You try to get information out of him you can't get information out of him." Co-counsel stated that the filing of the complaint with the BPR had brought the case to a "standstill." The trial judge commented, "[I]t appears that [the defendant] is manipulating the system, but, it still doesn't leave the court any — any choice, at least, at this point. The motion to withdraw is granted."

The court then admonished the defendant that if he "create[d] another conflict then [he was] going to be representing [himself]." In its order granting the withdrawal motion, the trial court stated that "the attorney/client relationship between lead counsel . . . and the [d]efendant . . . has deteriorated to the point where lead counsel's zealous representation of the [d]efendant is extremely difficult if not impossible." The court appointed new lead counsel. The two lawyers then representing the defendant filed an extensive, supplemental battery of motions.

The trial remained scheduled for January 30, 2006, but at some point, the trial court reset the trial for September 19, 2006.

Sixth change of counsel

On August 8, 2006, lead counsel moved to withdraw citing "irreconcilable conflict"; however, counsel apparently agreed to withdraw the motion in consideration of the defendant's dismissing a "complaint" he had filed against counsel. The trial court ordered a mental health evaluation of the defendant and continued the trial until October 24, 2006.

On October 9, 2006, the mental health evaluators in Kingsport filed with the trial court a letter in which they reported that they were "unable to properly evaluate [the defendant, who] did not cooperate with the evaluation process as he insisted on speaking to his attorney prior to the assessments." The evaluators expressed "no confidence that rescheduling this evaluation would yield a different outcome." On October 13, 2006, the trial court ordered that the defendant be sent to Middle Tennessee Mental Health Institute in Nashville (MTMHI). The October trial date was continued. In November and December 2006, MTMHI reported to the trial court that the defendant "is capable of...