Williams v. State

• Decision Date: 01 September 1988
• Docket Number: No. 534,534
• Parties: Michael WILLIAMS v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 689

77 Md.App. 689

551 A.2d 905

Michael WILLIAMS v. STATE of Maryland.

No. 534, Sept. Term, 1988.

Court of Special Appeals of Maryland.

Jan. 10, 1989.

Gary S. Offutt, Asst. Public Defender (Alan H. Murrell, Public Defender, on the brief), Baltimore, for appellant.

Cathleen C. Brockmeyer, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Submitted before BISHOP, ALPERT and ROBERT M. BELL, JJ.

ALPERT, Judge.

Michael Williams was charged with assault with intent to murder, assault, carrying a handgun, and use of a handgun in the commission of a crime of violence. An appearance on his behalf was entered by John J. Henderson, Assistant Public Defender. Immediately before trial in the Circuit Court for Baltimore City, it appears that unsuccessful plea negotiations were conducted. After these negotiations failed, the defendant stated, "I want another representative." His request was denied by the judge:

THE COURT: No, sir, at this point we are going to proceed. This is not going to be a harangue or filibuster. Mr. Henderson is your lawyer, very highly respected among the Bar, very well-prepared. All he has done is indicated what, communicated the offer to you. The offer has been turned down. You are now going to trial. Arraign the defendant.

The defendant made no further objections, and the trial commenced with his defense conducted by Mr. Henderson.

At the conclusion of trial, the trial judge gave his instructions to the jurors. The court stated that in order to be convicted of using a handgun in a crime of violence, the defendant must be found guilty of a crime of violence. He continued by stating that assault with intent to murder is a crime of violence, but simple assault is not. He made it clear to the jurors that a conviction for use of a handgun in the commission of a crime of violence may not be preceded by an acquittal of the crime of violence. Such a verdict would be inconsistent.

After deliberations, the jury acquitted appellant on the assault with intent to murder charge but convicted him of assault, "carrying a handgun," and use of a handgun in the commission of a crime of violence. The defendant moved for a new trial on the basis that conviction of use of a handgun in a crime of violence is inconsistent with an acquittal on the only crime of violence charged, i.e., assault with intent to murder. The trial court denied the appellant's motion for a new trial. Appellant was sentenced to six years imprisonment for the assault, three years imprisonment for carrying a handgun, and six years imprisonment for use of a handgun in the commission of a crime of violence, the sentences to run concurrently. He appealed, presenting two issues for our review:

1. Did the trial court's refusal to permit appellant to state his reasons for wanting to discharge his trial counsel entitle appellant to a new trial?

2. Did the trial court err when it denied appellant's motion for new trial?

I. Violation of Maryland Rule 4-215(e)

The appellant contends that the trial court erred when it refused to allow him to articulate his reasons for requesting a different attorney. He argues that Maryland Rule 4-215(e) requires that the court permit a defendant to explain his reasons for discharging counsel. Thus, he submits that refusal by the trial court to allow him to articulate such reasons is reversible error. Rule 4-215(e) provides:

(e) Discharge of Counsel--Waiver.--If a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request. If the court finds that there is a meritorious reason for the defendant's request, the court shall permit the discharge of counsel; continue the action if necessary; and advise the defendant that if new counsel does not enter an appearance by the next scheduled trial date, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds no meritorious reason for the defendant's request, the court may not permit the discharge of counsel without first informing the defendant that the trial will proceed as scheduled with the defendant unrepresented by counsel if the defendant discharges counsel and does not have new counsel. If the court permits the defendant to discharge counsel, it shall comply with subsections (a)(1)-(4) of this Rule if the docket or file does not reflect prior compliance.

It is obvious that the trial court violated Rule 4-215(e) in that the court did not "permit" the defendant to articulate his reasons for requesting a different attorney to represent him, i.e., the trial judge did not solicit appellant's reasons, nor did appellant seek to offer any. Having determined that the court violated the rule, we must now decide whether such a violation, under the circumstances presented, constitutes reversible error.

Our analysis may best be brought into sharp focus by first examining what did not occur here. At no time did the appellant request that he be allowed to represent himself. By qualifying for representation by the Public Defender's Office, he did not appear to have the resources to retain a private attorney. The appellant did not proceed to trial without the assistance of an attorney. Even on appeal, the appellant does not allege that he was at any time without the effective assistance of counsel. Nor does he now contend that he would have preferred self-representation. What did occur here was that the court refused the defendant's request for substitute representation, and the case proceeded to trial with the defendant fully represented by the attorney originally appointed by the Public Defender's Office.

In examining Rule 723 (a predecessor to Rule 4-215), this court, in Wright v. State, 48 Md.App. 185, 425 A.2d 1385 (1981), stated:

We cannot permit ourselves to forget the reason Maryland Rule 723 was adopted in the first place, and the end which it serves today. The rule provides an orderly procedure to insure that each criminal defendant appearing before the court be represented by counsel or, if he is not, that he be advised of his Sixth Amendment constitutional right to the assistance of counsel, as well as his correlative constitutional right to self-representation. In short, and as our Courts have said many times, the rule 'implements the constitutional mandates'; but it does neither more nor less than that.

Id. at 191, 425 A.2d 1385. Subsection (e) to Rule 4-215 was added subsequent to our decision in Wright, supra, but the same purpose can be attributed to it. Therefore, we should examine the requirements of the Sixth Amendment to determine whether the trial court's violation of the rule constitutes reversible error per se.

A criminal defendant has the constitutional right to be represented by an attorney or to proceed pro se to defend himself. See Snead v. State, 286 Md. 122, 123, 406 A.2d 98 (1979). Where the issue is a defendant's right to counsel of choice, a distinction is made between a defendant who wishes, and can afford, to retain a private attorney and an indigent defendant who has an attorney appointed for him. In the former case, the defendant has a right to counsel of choice; ¹ while in the latter case the defendant possesses no right of choice. See United States v. Nichols, 841 F.2d 1485, 1504 (10th Cir.1988); United States v. Ely, 719 F.2d 902, 904-05 (7th Cir.1983), cert. denied, 465 U.S. 1037, 104 S.Ct. 1313, 79 L.Ed.2d 710 (1984); Colvin v. State, 299 Md. 88, 100, 472 A.2d 953 (1984); State v. Renshaw, 276 Md. 259, 270, 347 A.2d 219 (1975). Cf., Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (no Sixth Amendment right to a meaningful attorney-client relationship for a criminal defendant).

Unlike the situation where a trial court's violation of a Rule 4-215 procedure compels a criminal defendant to represent himself where it has not been determined that he waived his right to counsel, see Maus v. State, 311 Md. 85, 532 A.2d 1066 (1987), or where a violation occurs because an inquiry as to whether a defendant has invoked his right to self-representation was not conducted, see Snead, supra, constitutional mandates are not per se violated by a court where it refuses to allow an indigent defendant to specify his or her reasons for requesting a substitute attorney. ² Accord United States v. Dilworth, 524 F.2d 470, 472 (5th Cir.1975), rehearing denied 528 F.2d 928 (5th Cir.1976); State v. Stinson, 424 A.2d 327, 330 (Me.1981); Commonwealth v. Flowers, 5 Mass.App. 557, 365 N.E.2d 839, 845 (1977). A violation of Rule 4-215(e) will only give rise to reversible error where a constitutional right has been infringed. An indigent criminal defendant's right to counsel under the 6th Amendment is not a right to choice of counsel, but it is the right to the effective assistance of counsel. See Fowlkes v. State, 311 Md. 586, 605, 536 A.2d 1149 (1988). It follows that the only legitimate claim an indigent criminal defendant could make to retain different counsel is that he has been deprived of the effective assistance of counsel with his present attorney.

In Watkins v. State, 59 Md.App. 705, 478 A.2d 326 (1984), we noted that claims of ineffectiveness of counsel are normally left to post-conviction hearing and that the trial courts do not "have a constitutional duty to conduct a specific evidentiary-type inquiry 'whenever they are confronted with those types of allegations.' " Id. at 715, 478 A.2d 326. As we have already stated that ineffectiveness of counsel is the only claim that an indigent defendant can make in requesting different counsel, the lower court's failure to address it on the day of trial, while a technical violation of Rule 4-215(e), does not, in and of itself, violate the constitutional mandate that the same rule is designed to protect. ³ In application to this case, we ...