REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1361
September Term, 2015
______________________________________
ROBERT ANTOINE WEATHERS
v.
STATE OF MARYLAND
______________________________________
Woodward,
Graeff,
Thieme, Raymond G., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Thieme, J.
Concurring opinion by Graeff, J.
______________________________________
Filed: December 1, 2016
As Judge Moylan, writing for this Court, has stated: “The law could not be more
clear that a wide discretion is vested in the trial judge to control the course of the trial and
the exercise of such discretion will not be reversed on appellate review except on those rare
cases where there has been a clear abuse of that discretion.” Thrifty Diversified, Inc. v.
Thomas R. Searles, 48 Md. App. 605, 615 (1981). This is one of those rare cases.
Appellant, Robert Antoine Weathers, was convicted by a jury in the Circuit Court
for Baltimore County, Maryland of theft of property with a value of at least $10,000 but
less than $100,000. After he was sentenced to fifteen years and ordered to pay $40,000 in
restitution, appellant timely appealed. Summarily rephrased, appellant presents the
following question for our review:
Did the circuit court abuse its discretion in finding that there was no
meritorious reason for appellant’s request to discharge counsel and in
denying his request for a postponement?
For the following reasons, we agree that the court abused its discretion in this case
and shall vacate the judgment of conviction.
BACKGROUND
Appellant was charged with numerous thefts from jewelry and liquor stores in
Baltimore County, Maryland during the spring and early summer of 2014. Because of
potential conflicts with the Office of the Public Defender involving a codefendant,
Spencer K. Gordon was assigned to represent appellant in this case as well as three other
cases that were charged in the Baltimore County Circuit Court. Ultimately, resolution of
this appeal depends on our review of the June 8, 2014, denials of appellant’s requests to
discharge Gordon. However, we shall first include a brief discussion of the background of
this issue for context.1
On December 8, 2014, at a pretrial postponement hearing involving three of
appellant’s cases, as well as several cases for the codefendant, Robin Tracy Nelson,
appellant expressed his dissatisfaction with Gordon by informing the Chief Administrative
Judge as follows:
I don’t think I’m going to use Mr. Gordon, Your Honor, because he’s
ineffective assistance of counsel as of right now. I haven’t talked to him or
nothing. He’s trying to move the case forward, and I’m going to have a paid
attorney, Roland Brown, represent me on the rest of these cases.
Appellant maintained that he not only wanted to be tried by a jury, but he also
wanted all of his cases tried separately. He further informed the court that “I don’t have
nothing to say to Mr. Gordon. That’s not my attorney. That’s Mr. Brown, Your Honor –
[.]” After earlier acknowledging that Gordon was not present during the beginning of this
hearing, having gone to another courtroom, the court remarked “[i]f you wish to get new
counsel or if you’re dissatisfied with counsel in any way, you need to take care of that
before you come back here.”
1
Because of the issue raised, it is unnecessary to discuss the underlying facts of this
case in detail. See Kennedy v. State, 436 Md. 686, 688 (2014). Suffice it to say that a
witness identified appellant as being involved in the robbery of several diamond rings from
a Baltimore County jewelry store on New Year’s Eve, December 31, 2013. Surveillance
video of the robbery was played for the jury at trial.
2
After the cases were postponed, and following a short recess, Gordon appeared in
court and the court then turned to appellant’s request to discharge counsel. Appellant
explained why he wanted to discharge Gordon:
[APPELLANT]: Like I said, he was ready to go to trial on this case
up here right here, and he hasn’t done any type of investigating or any type
of homework whatsoever; so how can we move forward when he don’t even
know anything about the case?
The court asked Gordon if it was his understanding that the cases would be
postponed and Gordon replied:
[DEFENSE ATTORNEY GORDON]: Well, it was my understanding
– I told the State that because there was so much discovery in so many cases
that I did not feel in a position to go to trial and that I would be asking for a
postponement. [The prosecutor] sort of extended me the courtesy of agreeing
that if my postponement request was denied that he would put the simplest,
what he viewed as the simplest case, and I would concur on first.
So my understanding was I was going to be asking for a
postponement, but if it were denied, that’s the case that would be tried. I was
trying to discuss this with Mr. Weathers back there, and the next thing I knew
he was screaming at me; and I just sort of terminated the conversation.
The court asked Gordon if he was prepared to go forward if the case were not
postponed, and Gordon answered:
Your Honor, if push had come to shove, I think I could have gone
forward on it. I know that Mr. Weathers hired Mr. Brown on another case.
From talking to him at the jail, I think his preference would be for the case
to be postponed so that he could try to get Mr. Brown in on that – whatever
case is going to go to trial, I think he wants Mr. Brown in on that.
The court then denied appellant’s request to discharge Gordon, stating:
[THE COURT]: I don’t find meritorious cause to discharge him, but
I understand that may be your preference to hire another attorney. I need you
3
to understand that we postponed this case until March, all right? Anything
you’re going to do in terms of a change in counsel needs to be done before
that date because otherwise if Mr. Gordon is here and saying he’s ready to
go to that date, you may if you choose to discharge him at that point, you
may not get another postponement. So whatever you need to do or whatever
you wish to do in terms of counsel, please make sure it’s done well in advance
of that trial date, all right?
THE DEFENDANT: Thank you, Your Honor.
Approximately three months later, on March 3, 2015, appellant and Gordon
appeared before the Administrative Judge Designee (hereinafter “Administrative Judge”).
At that time, the Administrative Judge was informed that appellant had four theft cases
where he was represented by Gordon, and another case where he was represented by
Roland Brown. After being informed that appellant had expressed dissatisfaction with
Gordon, the Administrative Judge inquired whether Gordon was prepared for trial and
Gordon replied:
[DEFENSE ATTORNEY GORDON]: Well, in all candor, Your
Honor, the answer to that would be no, and the reason for that is because the
last time the cases were in, [the prosecutor] intended to try one in particular.
That’s the one that I prepared for on that date, and I did not have any reason
to think that that would not be the one to be tried first this time until yesterday
when he told me that, in fact, it was one of the other ones that he is going to
try first which is why my paralegal now has the files and is organizing
materials so that I can prepare properly for that one.
The State informed the court that this case was originally scheduled to be tried a
week later, but that, because the attorney for appellant’s co-defendant was unavailable, the
case would need to be postponed. Gordon informed the Administrative Judge that he could
4
be prepared to proceed in this case, but that it was possible that he would ask for a
postponement. Gordon then continued:
[DEFENSE ATTORNEY GORDON]: Yes. And for the record, just
one additional thing. Obviously, Mr. Weathers wanted to be represented by
Mr. Brown. I mean, they did – his family did retain Mr. Brown. I guess only
had the money to retain him on one case. Obviously, the State can’t be forced
to try any particular case, but I did speak with his mother this morning; and
she has been trying to get in touch with Mr. Brown to make arrangements to
retain him on some or all of the remaining cases, so I hope to get confirmation
one way or the other on that within the next couple of days.
The court then asked appellant to give his reasons for wanting to discharge Gordon,
and the following ensued:
THE DEFENDANT: Yes. First of all, Your Honor, this is the second
time I’ve seen him considering this whole situation, and as far as the cases
that I’m being tried on, I only seen him about one case. The other three cases
that the prosecutor had mentioned, me and him have never talked about
anything. I have received my motion of discovery, right. I’m in the process
of paying Mr. Brown, but I haven’t finished paying him yet; so I do want him
to represent me as a lawyer in court.
THE COURT: Well, why are you dissatisfied with the representation
of Mr. Gordon?
THE DEFENDANT: Because I mean –
THE COURT: That’s the question.
THE DEFENDANT: He hasn’t done anything for my case, Your
Honor, nothing whatsoever. I mean, he hadn’t been to see me but once. That
was, like, about four months ago.
After Gordon again assured the Administrative Judge that there was no reason why
he could not be prepared, the court found there was no meritorious reason to discharge
Gordon, as follows:
5
THE COURT: All right. I find that there’s no meritorious reason for
the discharge of Mr. Gordon at this time. Now, since I’ve reached that
conclusion, I cannot – I must advise you now that I cannot legally prevent
you from discharging or firing Mr. Gordon if that’s what you want to do.
You have the right to represent yourself in – come next Tuesday, but
if you fire your attorney right now, make no mistake about it. This trial, one
of these two trials will proceed as scheduled. You’ll be representing yourself
if you have not hired another attorney and if that other attorney is not
prepared to represent you.
So under the circumstances, is it – do you – so here’s the way it is. If
you fire him right now, you’re going to be without any attorney, and I’m not
making a postponement decision in this case based on the March 10 th trial
date nor would I postpone the case. Has it been postponed before?
[DEFENSE ATTORNEY GORDON]: Yes, Your Honor.
[PROSECUTOR]: Numerous times.
THE COURT: So I don’t believe that the law requires me to give
Defendants these endless opportunities to make decisions about who to hire.
I think that this is not the first time this issue’s been raised before the Court,
and under the circumstances, if I’m the postponement judge, you can count
on not getting a postponement. So at that point in time, you’ll be representing
yourself. Do you wish to fire Mr. Gordon today with the idea that you will
be left representing yourself come March 10th, 2015? Yes or no?
THE DEFENDANT: Yes.
The Administrative Judge then conducted a waiver inquiry and informed appellant
about what would be required if appellant decided to represent himself at trial. Ultimately,
the court concluded that appellant knowingly and voluntarily waived his right to counsel.
The court then asked appellant if he was firing Gordon in all of his cases and appellant
replied, “I didn’t know I had him on all of my cases, Your Honor.” At that point, the State
informed the court that it was not sure which case it would try first and that it “would
6
choose a case where [Gordon] would adequately be prepared.” The Administrative Judge
then directed the parties to resolve which case was being tried first in order to ensure that
appellant’s decision to waive counsel was made “on a knowing basis.”
After a recess, the State informed the court that it would proceed on two different
cases, other than the case under consideration, and Gordon responded that he was prepared
in those other cases. Based on this clarification of the trial schedule, the Administrative
Judge again gave appellant a chance to discharge Gordon, but, before appellant could
respond, Gordon suggested that the State and the court consider first trying appellant in the
case where he was represented by Roland Brown. Although the court noted that depended
entirely on attorney Brown’s schedule, appellant indicated his agreement with this
suggestion.
Thereafter, and without a firm decision which of the numerous theft cases against
appellant would be tried first, the court and the appellant engaged in the following
colloquy:
THE COURT: That’s all fine. The question here is, do you want to
fire Mr. Gordon in these other cases, yes or no? You’ve heard my
explanations and you’ve given your responses. Do you want to fire him in
these cases? I firmly recommend against it, but you do what you want.
THE DEFENDANT: No. I will keep him, Your Honor.
THE COURT: Okay. So noted. Thank you.
Six days later, on March 9, 2015, the Administrative Judge granted another
postponement for appellant in this case. Notably during the course of that hearing, which
7
also included requests for postponement from appellant’s co-defendant, Nelson, Gordon
proffered that, since the last hearing, Roland Brown secured an acquittal for appellant in
another similar case in a neighboring jurisdiction. Based on that, appellant requested that
a different case, where he was also represented by Brown, be tried first. However, the
Administrative Judge denied further postponement in that case.
Returning to the case under consideration here, the following colloquy at this March
9th hearing occurred:
THE COURT: Again, Mr. Weathers, is it your desire to engage the
services of new counsel for this case?
THE DEFENDANT: Yes, Your Honor, all the cases that Roland
Brown represents –
THE COURT: Wait a minute. Somebody’s stepping on something.
Everybody, check your feet. All right. It appears to have been cured. So
I’m sorry. What did you say, Mr. Weathers?
THE DEFENDANT: I said the cases that Roland Brown is not
representing me, the cases that he hasn’t stood in yet to represent me on, I’m
asking can I require [sic] counsel for those cases? I’ve already hired counsel
for those cases.
THE COURT: Oh, aside from the one where you just said you’ve
hired Mr. Rosenberg?2
THE DEFENDANT: Right. On all the cases that he’s been filed on –
THE COURT: That what?
2
During the hearing, appellant informed the court, for the first time, that he was
attempting to secure the services of another attorney, Lawrence Rosenberg, for some of his
cases other than the one under consideration.
8
THE DEFENDANT: All the cases that he’s been filing on, I have
counsel that’s representing me.
THE COURT: Okay. Well, I don’t think I permitted the – you to
discharge Mr. Gordon the last time you were here, did I?
THE DEFENDANT: But I can still hire counsel. I’m still allowed to
hire counsel, can’t I, Your Honor?
THE COURT: I’m sorry?
THE DEFENDANT: I said I’m still allowed to hire my own counsel?
THE COURT: You’re not allowed to play games which is what you’re
doing –
THE DEFENDANT: I’m not playing any games, Your Honor.
THE COURT: So I’m not permitting the discharge of Mr. Gordon
unless and until other attorneys enter their appearance on his behalf.
THE DEFENDANT: No problem. I don’t have no problem with that.
Turning now to the events that occurred three months later, on June 8, 2015, the
morning set for trial, the Administrative Judge heard another request for a postponement
in this case. Defense attorney Gordon informed the court that, since the last hearing,
appellant was acquitted in the separate case where he was represented by Roland Brown.
However, appellant also had been convicted in another case in Washington County, for
which he received a ten year sentence.3 Gordon had not spoken with or seen appellant in
the meantime. Gordon continued:
3
The record does not reveal if appellant was represented in the Washington County case
and, if so, by whom.
9
He comes here today – I’ve received no indication whatsoever that he
still has intentions or the ability to retain private counsel to represent him on
any of the remaining cases including the one today. However, when I went
to see him in the lockup, the first thing he said to me was where’s Mr. Brown?
You’re not my attorney.
I want Mr. Brown to represent me. And he believes that that is
something that is in the works. I then came and saw [the prosecutor] next to
the courtroom, and he tells me that he had seen Mr. Brown today and said
oh, are you going to be on this case and Mr. Brown said no.
So Mr. Weathers would like Mr. Brown to represent – he has
successfully represented him and obtained two acquittals for him on two
separate charges, one in Montgomery, one in Baltimore County. I can
understand why he would want Mr. Brown to be his attorney, but Mr. Brown
is not here. A case is scheduled today. I’m the one here, but he doesn’t want
me to represent him. He would like this case postponed so that he can
continue to try and make arrangements with Mr. Brown.
The prosecutor confirmed that it was his understanding that, after speaking to
attorney Brown, that Brown was not prepared to enter this case. But, the prosecutor
informed the court that he was ready to call this case for trial.
At that point, the Administrative Judge summarized the history of this case, similar
to that set forth herein. He then verified that appellant had a copy of the charging
document, informed him of his right to counsel and the importance of having an attorney
represent him, and confirmed that appellant understood the nature of the charges in this
case.
The court then asked if defense attorney Gordon was prepared to proceed and
Gordon replied in the affirmative, “[e]xcept for one thing, Your Honor.” Gordon then
stated:
10
[DEFENSE ATTORNEY GORDON]: . . . [T]here apparently is a
surveillance video and among different bits of discovery that I got, I do not
see that I obtained that. I did notify [the prosecutor] of that, and he does have
that with him. So I’ve not seen the surveillance video and would like an
opportunity to see that, but.
THE COURT: All right. What’s on the surveillance video?
[PROSECUTOR]: Your Honor, it’s the Defendant and a co-Defendant at a – in the jewelry shop at a display counter and then leaving
after they were both seen on the video getting very close to the – and the
State’s allegation is putting their hands in the display case.
THE COURT: And so how long does it take? How long is this video?
[PROSECUTOR]: Five –, ten-minute video.
The court asked appellant if he wanted to explain why he still wanted to discharge
Gordon, and appellant replied:
. . . While Mr. Gordon, he came to see me twice, right, during this
whole process, and when he came to see me, he talked about the case that
he’s supposed to represent me on today. He never talked about that.
He talked about two other cases that he was supposed to represent me
on, you know, so this case right here, how can he be familiar with the case
when we never even talked about it? We never discussed this case. He never
gave me the motion of discovery or anything, Your Honor, you know.
After Gordon agreed with that statement, appellant continued:
[THE DEFENDANT]: So what happened, Your Honor, is you know,
I’m in the process now like you told me before, you said, you know, try to
get Mr. Brown. I got Mr. Brown for the other case where I got an acquittal,
right, and I’m in the process of getting him on this case. Your Honor, you
know. Like I say, Mr. Gordon is not familiar with this case at all whatsoever.
You know, he hasn’t studied this case?
He hasn’t told me anything about the case, you know. All he’s saying
is we’re going in front of this case and give me the case number and that was
it. You know, I haven’t talked to him in, like, three months, so how can he
11
be familiar with this case whatsoever? You know, the other two cases that
you told me to represent me on if Mr. Brown wouldn’t be available, these are
none of the two cases that you told me to represent me on.
[DEFENSE ATTORNEY GORDON]: It is true, Your Honor, that I
have not discussed this case with him, that’s true, but I am familiar with it
from reviewing it.
(emphasis added).
Despite this acknowledgment from appellant’s assigned defense attorney, the
Administrative Judge denied the renewed motion to discharge Gordon, stating:
[THE COURT]: Okay. The Court concludes that the Defendant has
not established a meritorious reason to discharge Mr. Gordon, but I cannot
legally prevent you from discharging or firing him. You have the right to
represent yourself, but if you fire Mr. Gordon right now, make no mistake
about it, this trial will proceed as scheduled. You will be representing
yourself if you have not hired another attorney. It sounds like you have not
hired another attorney. So do you wish to discharge Mr. Gordon or keep Mr.
Gordon?
THE DEFENDANT: Well, I’m going to have to keep him to represent
– you know, to help represent me –
THE COURT: So ordered. Next case.
[PROSECUTOR]: Your Honor, can we go – can I approach for the
file to go back down to Judge Purpura?
THE COURT: Yes. And any postponement request is denied.
The case was then sent to the trial judge for a jury trial. Before jury selection,
appellant asked to speak to the court. Appellant was sworn in and stated that Gordon told
him “he’s just getting into this case . . .” Appellant questioned how Gordon could “know
anything about this case within a couple hours, Your Honor?” The trial judge confirmed
12
that this same issue was heard earlier that day by the Administrative Judge. The court then
asked for further explanation from attorney Gordon and Gordon stated as follows:
[DEFENSE ATTORNEY GORDON]: Mr. Weathers, as you know,
has a number of cases in Baltimore County, so there have been global
discussions between Mr. Weathers and I. The cases were all staggered two
weeks apart. What I told [the Administrative Judge] was that it is true that I
had not had an opportunity to speak with Mr. Weathers about this particular
case.
I have had all the discovery in all of the cases, and so I have had an
opportunity to review the discovery in all of the cases; but I had not had an
opportunity prior to today to speak to Mr. Weathers. He’s been – he’s had
cases in multiple jurisdictions. His location has changed as a result of a
conviction in another county.
I had a telephone interview scheduled with him that I couldn’t make
because I got caught up in court way later than I anticipated. He’s on lockup
which is a conflict. So it is true that I did not have an opportunity between
the date that the last trial was scheduled two weeks ago and today to discuss
these particular allegations in this particular case with him. That is true.
THE DEFENDANT: So you don’t know anything about this case?
[DEFENSE ATTORNEY GORDON]: Well, I wouldn’t say I don’t
know anything about this case. Discovery is not voluminous. I know the
facts of the case, but I haven’t discussed them with Mr. Weathers, but those
were among the reasons why I requested of you the opportunity to do motions
today and then have an opportunity to then talk to Mr. Weathers during the
recess between today and tomorrow and also spend some time this evening
going through it.
(emphasis added).
After speaking with the prosecutor, the trial judge clarified that the Administrative
Judge had found no meritorious reason for appellant to discharge attorney Gordon.
Appellant then stated that he did not want to fire Gordon but wanted to be able to “help
13
him as the trial go[es] on[.]” The court confirmed that appellant could consult with Gordon
during trial.
The trial judge then inquired whether the Administrative Judge knew that Gordon
had not spoken to appellant before trial and was assured that information was presented to
him. The trial judge also asked whether the Administrative Judge knew that Gordon had
all the discovery in the case, and Gordon replied that he told the Administrative Judge “that
I had had an opportunity to review this case is what I said.” At that point, appellant
interjected as follows:
THE DEFENDANT: But even you told me that you didn’t want to be
part of this case. You told me that in the bullpen. You told me that, so you
told me to let the judge know we’re not going there. Didn’t you say that?
[DEFENSE ATTORNEY GORDON]: I think I can put my personal
feelings aside and try this case, Mr. Weathers.
Gordon continued:
[DEFENSE ATTORNEY GORDON]: I understand. Your Honor, if
I could just say, the relationship between myself and Mr. Weathers has been
somewhat acrimonious from the start. And you know, part of the problem is
that he – his family obviously has had the funds to retain private counsel to
represent him on two separate cases and in both of those cases, he was
acquitted. So he sort of comes to court wishing he could have that attorney
who has already successfully defended two cases continue to be his attorney.
I’m saying you wish – you would like Mr. Brown to be your attorney?
THE DEFENDANT: We tried to get Mr. Brown. He didn’t, you
know, return the calls and my family was still in contact trying to get in touch
with him.
[DEFENSE ATTORNEY GORDON]: Right. So that is the source
of Mr. Weathers’ frustration, and as a result of that frustration, there has been
14
some acrimony directed at me; and I would admit that there’s probably been
some acrimony directed at him –4
THE COURT: And this is all again – this was all presumably
addressed in front of [the Administrative Judge]?
[DEFENSE ATTORNEY GORDON]: Well, maybe not this part of it,
but yes.
The trial judge then decided to conduct “a 4-215 hearing just to keep the record clear
because it sounds like more issues are coming up.” Appellant was then formally called to
the witness stand and testified that he was innocent of the charges and had told this to
Gordon. Appellant testified:
I told him that today. I told him that almost two months ago, the last
time I seen him, right, and I told him if he was to represent me that he would
have to get into the cases. He couldn’t come see me like once a month and
just say what we going to do?
You know, he didn’t go over none of the cases with me. He didn’t go
over the motion of discovery. He don’t have all the motion of discovery for
this case, for this case right here, so how can he prepare for a jury trial? And
he didn’t have the motion of discovery prepared, you know?
According to appellant, Gordon also conceded to him, apparently at some point
prior to trial, that Gordon had not reviewed the surveillance video in this case.
Nevertheless, Gordon simply told appellant to go ahead “and take a plea and get it out the
way because he [has] other charges in different jurisdictions . . .” Therefore, appellant
stated that he was “uncomfortable” with Gordon. To that, the court replied, “[w]ell, being
4
The transcript states that these comments were made by the court, but in context it
is clear that this paragraph was actually spoken by Gordon.
15
uncomfortable isn’t enough. What has he done wrong?” Appellant replied, “I haven’t
seen him to tell him to do anything.” (emphasis added). Appellant agreed that he spoke to
Gordon about different cases, but maintained that they did not speak about the details of
this case.
The court then turned to how Gordon was originally appointed and then noted that
Gordon had been filing papers on appellant’s behalf in this case, including motions for
discovery and an omnibus motion to suppress. Gordon then informed the court that he was
eventually provided the surveillance video in this case, had reviewed it, and “certainly
would like to discuss it with Mr. Weathers.” But, Gordon continued:
There’s nothing based on that view of that DVD that makes me feel like I
need a continuance to get witnesses or be further prepared for the case. I
certainly could have done a better job of communicating with Mr. Weathers,
but I am prepared to try the case.
After appellant agreed that he had not communicated with Gordon about this case
and questioned whether Gordon was prepared, the trial judge denied appellant’s motion to
discharge, finding as follows:
Okay. Well, Mr. Weathers, based on what you’ve told me which is
simply that you’re uncomfortable and that you haven’t had a chance to talk
to him, but also based on my review of the file indicating that Mr. Gordon
has filed all the necessary motions timely, very quickly within two weeks of
his being appointed to the case, I don’t see that you do have a meritorious
reason to discharge him.
So I can’t – I won’t discharge him because I don’t find a meritorious
reason. You – on the other hand, if you want to do so, you still have that
right to discharge him, but you would have to try the case without a lawyer.
So it’s going to be – it’s going to start today, so what do you want to do?
16
After briefly changing his mind and temporarily withdrawing his request to
discharge counsel, appellant ultimately asked that Gordon remain on as a “standby”
attorney. After voir dire, jury selection and a hearing on a motion to suppress were
conducted, this issue of the nature of Gordon’s continued representation/relationship to this
case reared up once more, notably prior to opening statements and the reception of
evidence. Ultimately, the trial judge found that appellant “freely, voluntarily, knowingly,
and intelligently” waived his right to counsel, that Gordon would remain on as standby
counsel and would be available to answer questions, but would not participate in the trial
itself unless so directed by appellant. The court then struck Gordon’s appearance, but also
told appellant that he could change his mind and Gordon could be reappointed to represent
appellant if appellant so desired.5
5
We note that Gordon’s participation was not limited to mere consultation with the
appellant throughout the course of the proceedings. Instead, at appellant’s express request,
defense attorney Gordon actually conducted voir dire and was very involved in selecting
the jury. He also argued the motion to suppress an identification, examining the majority
of the witnesses on the record. And the next day, Gordon continued to argue motions prior
to and during trial, made opening statements, objected to witness’s testimony, cross-examined and recross-examined the victim, responded to the State’s objections during
bench conferences, argued the motion for judgment of acquittal at the end of the State’s
case-in-chief, participated with appellant in discussing the instructions with the court, and,
after appellant was convicted by the jury, argued for mitigation prior to sentencing. As
stated, Gordon’s participation in this manner was made at appellant’s express, on-therecord, request. But, the record also shows that appellant did, to a certain degree, assume
the mantle of self-representation. He asked a number of questions during the motions
hearing. He also cross-examined and recross-examined three witnesses during trial. And,
appellant made his own closing argument.
The prosecutor objected to Gordon’s participation in this manner, suggesting that
this “does rise to representation” and “is not in the purview of standby counsel.” The Court
17
DISCUSSION
On appeal, appellant contends that the circuit court abused its discretion in finding
that there was no meritorious reason for appellant’s request to discharge defense counsel
Gordon and in denying appellant’s request for a postponement. Appellant’s primary
argument is based on Gordon’s concession that, prior to trial, he did not discuss this case
with appellant.
The State responds that the circuit court properly exercised its discretion in denying
the motion to discharge Gordon. The State’s argument is premised on the ground that,
although he had not yet spoken to appellant about this case on the morning set for a jury
trial, defense counsel knew the facts of the case and was prepared to proceed to represent
appellant at trial.
We shall hold that, under the circumstances of this case, the circuit court abused its
discretion in finding no meritorious reason for appellant’s request to discharge counsel
pursuant to Maryland Rule 4-215 (e).
The right to counsel is guaranteed by the Sixth Amendment to the United States
Constitution and Article 21 of the Maryland Declaration of Rights. See Gideon v.
of Appeals has held that hybrid representation is not allowed in Maryland. See Harris v.
State, 344 Md. 497, 511 (1997) (“[T]here are only two types of representation
constitutionally guaranteed – representation by counsel and representation pro se – and
they are mutually exclusive.”) (quoting Parren v. State,
309 Md. 260, 265 (1987)).
However, no issue with respect to hybrid representation is presented in this appeal.
18
Wainwright, 372 U.S. 335, 342-43 (1963).6 “If the defendant cannot afford private
representation, then he or she is entitled to an effective defense from a public defender or
court appointed attorney.” Gonzales v. State,
408 Md. 515, 529-30 (2009); see also Dykes
v. State,
444 Md. 642, 648 (2015) (“[T]he defendant has a right to counsel appointed at
government expense” (citing Gideon, supra)). “If the defendant can afford private
representation, however, then the defendant has a right to the attorney of his or her choice.”
Gonzales,
408 Md. at 530.
In addition, a defendant in a criminal prosecution also has a constitutional right to
have effective assistance of counsel and the corresponding right to reject that assistance
and represent himself. Powell v. Alabama, 287 U.S. 45, 71 (1932) (recognition of the
constitutional right to the effective assistance of counsel); see also Dykes,
444 Md. at 648
(“The right to counsel ‘guarantee[s] an effective advocate for each criminal defendant
rather than . . . ensur[ing] that a defendant will inexorably be represented by the lawyer
whom he prefers.’”) (quoting Alexis v. State,
437 Md. 457, 475 (2014), in turn quoting
Wheat v. United States,
486 U.S. 153, 159 (1988)).
As part of the implementation and protection of this fundamental right to counsel,
the Court of Appeals adopted Maryland Rule 4-215, “which explicates the method by
which the right to counsel may be waived by those defendants wishing to represent
6
The right to counsel provisions of the Maryland Declaration of Rights, Article 21
and the Sixth Amendment to the federal constitution are generally held to be coextensive
and there is no argument presented here that they should be interpreted differently. Parren
v. State, 309 Md. 260, 262-3 n.1 (1987).
19
themselves . . . .” Broadwater v. State, 401 Md. 175, 180 (2007); accord Dykes,
444 Md.
at 651. “The purpose of Rule 4-215 is to ‘protect that most important fundamental right to
the effective assistance of counsel, which is basic to our adversary system of criminal
justice.’” Williams v. State,
435 Md. 474, 485 (2013) (quoting Parren v. State,
309 Md.
260, 281 (1987)). Further, 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 the Sixth Amendment constitutional right to the assistance of counsel,
as well as his correlative constitutional right to self-representation. Broadwater,
401 Md.
at 180-81 (citation omitted). The requirements of the Rule are “mandatory,” require “strict
compliance,” and “a trial court’s departure from the requirements of Rule 4-215 constitutes
reversible error.” Pinkney v. State,
427 Md. 77, 87-88 (2012) (citations omitted).
“We review de novo whether the circuit court complied with Rule 4-215.” Gutloff
v. State, 207 Md. App. 176, 180 (2012). However, so long as the court has strictly complied
with Rule 4-215(e), we review the court’s decision regarding whether to grant or deny a
defendant’s request to discharge counsel for abuse of discretion. State v. Taylor,
431 Md.
615, 630 (2013). “‘Abuse of discretion’ . . . has been said to occur ‘where no reasonable
person would take the view adopted by the [trial] court,’ or when the court acts ‘without
reference to any guiding rules or principles.’” Nash v. State,
439 Md. 53, 67 (quoting North
v. North,
102 Md. App. 1, 13 (1994)), cert. denied,
135 S. Ct. 284 (2014). Further:
“ ‘[A] ruling reviewed under an abuse of discretion standard will not
be reversed simply because the appellate court would not have made the same
ruling.’ ” Alexis v. State, 437 Md. 457, 478,
87 A.3d 1243 (2014) (emphasis
20
omitted) (quoting North v. North, 102 Md. App. 1, 14,
648 A.2d 1025
(1994)). “Rather, ‘[a] court’s decision is an abuse of discretion when it is
‘well removed from any center mark imagined by the reviewing court and
beyond the fringe of what that court deems minimally acceptable.’ ” Id.
(quoting Gray v. State, 388 Md. 366, 383,
879 A.2d 1064 (2005) (quoting
Dehn v. Edgecombe, 384 Md. 606, 628,
865 A.2d 603 (2005)) (some internal
quotation marks omitted)).
Norwood v. State, 222 Md. App. 620, 643, cert. denied,
444 Md. 640 (2015).
Pertinent to our discussion, Maryland Rule 4-215 (e) provides as follows:
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.
This Court of Appeals has explained that this rule:
[C]reates a three-step process for discharge of counsel. First, when the
defendant indicates a desire to dismiss counsel, the court must provide an
opportunity for the defendant to explain the reason for dismissal. Second,
the court must evaluate the reason to determine if it is meritorious. If the
reason is meritorious, the court must permit dismissal, continue the case if
necessary, and warn the defendant that he or she may be required to proceed
pro se if new counsel is not engaged by the next trial date. If the reason for
dismissal is not meritorious, however, the court must engage in a third-level
inquiry. The court may still permit dismissal of counsel, but only after
warning the defendant of the possibility he or she will proceed pro se if
substitute counsel is not secured. The court may also reject the defendant’s
request to dismiss counsel if the reason is not meritorious.
21
State v. Brown, 342 Md. 404, 425 (1996); accord Gonzales,
408 Md. at 531-32; see also
Williams v. State,
321 Md. 266, 273 (1990) (“Where the trial judge finds a defendant’s
reasons to be meritorious, he must grant the request and, if necessary, give the defendant
an opportunity to retain new counsel”).
There is no claim in this case that the circuit court failed to comply with the technical
requirements of Maryland Rule 4-215 (e). Indeed, the record shows that the various judges
in the circuit court gave appellant ample opportunity to air his grievances against defense
counsel. Instead, the issue before this Court is limited to whether the circuit court abused
its discretion in finding that there was no meritorious reason for appellant’s request to
discharge counsel. On that issue, the parties agree there is little guidance for our
consideration. The Court of Appeals has observed:
The rule does not define “meritorious.” This Court has equated the
term with “good cause.” See Gonzales v. State, 408 Md. 515, 531-33,
970
A.2d 908 (2009); [State v. Campbell,
385 Md. 616, 627 (2005)]; State v.
Brown, 342 Md. 404, 413,
676 A.2d 513 (1996). This determination –
whether there is “good cause” for discharge of counsel – is “an indispensable
part of subsection (e)” and controls what happens in the third step. Williams,
321 Md. at 273,
582 A.2d 803.
Dykes,
444 Md. at 652.
There are few examples of what constitutes a “meritorious” reason in Maryland case
law. In Grandison v. State, 341 Md. 175 (1995), the Court of Appeals affirmed the trial
court’s finding that the defendant did not have a meritorious reason to discharge counsel,
where the defendant, Grandison, wanted to present a different defense than did his attorney.
This did not constitute meritorious grounds because counsel never expressly refused to
22
present Grandison’s preferred defense and because the two defenses were not
incompatible. Id. at 202.
The Court of Appeals also affirmed a finding of no merit in Fowlkes v. State, 311
Md. 586 (1988). The relevant facts of the case and the Court’s conclusion, were
summarized as follows:
In this case, the defendant at various points advanced several different
reasons for his request. He claimed that his attorney did not have “the true
facts,” that she could not represent him “on behalf of honesty,” and that she
had not diligently sought to obtain the appearance of his witnesses. The trial
judge found these reasons unmeritorious. She stated that the defendant’s
attorney “was highly competent” and had “had plenty of time to prepare.”
Moreover, she noted that the absent witness had failed to appear only because
the defendant had supplied an incorrect address.
The record fully supports the trial judge’s conclusion that the
defendant’s request was unmeritorious. The judge had an opportunity to
assess [defense counsel’s] competence and dedication during pretrial
proceedings and the circumstances thereafter. The eight months that elapsed
between the defendant’s indictment and the trial date surely afforded more
than enough time for preparation and for the defendant to find an attorney
more to his liking. The judge was entitled to credit [defense counsel’s]
statements concerning her efforts to summon the missing witness. Moreover,
from the defendant’s own statements, the judge could have concluded that
the defendant was motivated less by dissatisfaction with his attorney than by
an unjustified desire for delay. . . . [T]he defendant objected not only to
representation by the Office of the Public Defender but also to the trial going
forward under any circumstances. In addition, after the defendant discharged
his attorneys, he admitted, “I ain’t trying to get tried.”
Id. at 607. See Alford v. State,
202 Md. App. 582, 609 (2011) (upholding trial court’s
findings that reasons for request for discharge were unmeritorious, including appellant’s
claim of inadequate communication with defense counsel, where “defense counsel was
credible when she stated that she reasonably responded to appellant’s requests for
23
communication, as she responded to all three written requests and visited appellant twice
before trial”); see also United States v. Allen, 789 F.2d 90, 93 (1st. Cir. 1986) (appellant’s
“loss of confidence in his attorney” does not constitute good cause to assign new counsel)
(cited in State v. Brown, supra,
342 Md. at 413 & n.3).
Here, the primary reason cited for appellant’s request to discharge his attorney was
defense counsel’s concession, on the record, on the day of trial, that he had not yet spoken
to appellant about this case. Appellant directs our attention to In re Shawn P., 172 Md.
App. 569 (2007). There, Shawn appeared for his adjudicatory hearing without an attorney,
though he stated that he desired representation. In re Shawn P.,
172 Md. App. at 572. The
court found that, by appearing without counsel, he waived his right to an attorney by
inaction.
Id. at 573. However, an assistant public defender, who happened to be in the
courtroom, agreed to enter an appearance on Shawn’s behalf, even though he had never
spoken with him and was completely unfamiliar with the facts of the case.
Id. at 574.
Defense counsel then requested a continuance to prepare for the hearing, which was denied.
Id. Instead, the court ordered the case to proceed immediately to trial and Shawn was found
involved in the offense of second degree assault and adjudicated a delinquent.
Id. at 571.
On appeal, this Court held that the trial judge “abused his discretion by denying
counsel’s request for a continuance or, in the alternative and at the very least, by refusing
to afford counsel an opportunity to confer with appellant.” In re Shawn P., 172 Md. App.
at 588. In addressing whether Shawn was denied the effective assistance of counsel, we
explained:
24
[T]he effectiveness and unreasonableness of counsel’s performance may be
determined or substantially influenced by his client’s own statements and
actions. Informed strategic choices by counsel based on information supplied
by the defendant and, in particular, decisions as to what investigative
strategies will bear fruit depend on information uniquely within the
knowledge of the client. Where, as in the case at hand, there has been
absolutely no communication between counsel and appellant, and counsel
has been denied an opportunity for even a brief consultation with appellant,
it can hardly be said that appellant had effective assistance of counsel.
In re Shawn P., 172 Md. App. at 584.
Much of this stems from a lawyer’s duty to communicate with his or her client. The
Rules of Professional Conduct provide:
(a) An attorney shall:
(1) promptly inform the client of any decision or circumstance with
respect to which the client’s informed consent, as defined in Rule 1.0 (f), is
required by these Rules;
(2) keep the client reasonably informed about the status of the matter;
(3) promptly comply with reasonable requests for information; and
(4) consult with the client about any relevant limitation on the
attorney’s conduct when the attorney knows that the client expects assistance
not permitted by the Maryland Attorneys’ Rules of Professional Conduct or
other law.
(b) An attorney shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 1.4 (Md. Rule 19-301.4).
Generally, “a lawyer representing a criminal defendant has a duty under Rule 1.4 to
promptly inform and consult with the client about issues over which a client has decision-
making authority. The obligation is also a function of the defendant’s constitutional
25
rights.” Bennett et al., Annotated Model Rules of Professional Conduct, Rule 1.4, at 63 (8th
ed. 2015) (collecting cases); see Attorney Grievance Comm’n of Maryland v. Gelb, 440
Md. 312, 321 (2014) (“Respondent’s lack of communication denied the complainants the
opportunity to make informed decisions regarding their representation, in violation of
MLRPC 1.4(b)”); see also Attorney Grievance Comm’n of Maryland v. Monfried,
368 Md.
373, 385-90 (2002) (concluding attorney violated MARPC 1.4 in one case by failing to
interview client and by failing to keep client informed of status of case, and in another case
by failing to meet with client or to meet with him prior to a parole revocation hearing).
Indeed:
“[T]he defendant ordinarily has the ultimate decision when the issue at hand
involves a choice that will inevitably have important personal consequences
for him or her, and when the choice is one a competent defendant is capable
of making.” Examples of that type of decision include whether to testify on
one’s own behalf, whether to forego trial by way of a guilty plea, and waiver
of right to trial by jury.
Grandison, 341 Md. at 261-62 (quoting Treece v. State,
313 Md. 665, 674 (1988)); see also
Fortune, et al., Modern Litigation and Professional Responsibility Handbook, §14.2.3 at
502 (2d ed. 2001) (“The conscientious criminal lawyer must keep the client fully informed
and advise him ‘with complete candor concerning all aspects of the case, including a candid
estimate of the probable outcome.’ After consultation, it is for the client to decide how to
plead, whether to waive jury, and whether to testify.”) (footnotes and citation omitted). As
one commentator has explained:
An attorney has an obligation to communicate with the client, and failure to
discharge this duty is a proper ground for disciplinary action. It is the duty
26
of the attorney to inform clients of relevant considerations and factors in the
decision-making process and of their rights and interests in the subject
matter, and to give the clients the opportunity to make decisions. Failure to
do so renders the lawyer subject to disciplinary action.
Hall, Professional Responsibility in Criminal Defense Practice, § 32.14 at 1206 (3d ed.
2005) (footnotes omitted).
Here, although he had entered an appearance in this case some nine months earlier,
defense counsel admitted that, on the morning of trial, he had not yet discussed this case
with appellant. Instead, Gordon planned on discussing the case with appellant after the
first day of trial, which, in this case, did not occur until after the jury had been selected and
after testimony was received on a motion to suppress the identification of appellant by the
victim in this case. This anticipated communication would come too late as it is well
established that voir dire is a critical stage of a criminal proceeding. See State v. Hardy,
415 Md. 612, 628 (2010) (holding that, for purposes of claims under Maryland Rule 4-215,
“meaningful trial proceedings” began with the voir dire process in a criminal trial).
Certainly, communication about the details and nature of the case at hand would have
informed the jury selection process. And, there is no doubt that any discussion at all also
could have helped with the motion to suppress the victim’s identification.
Additionally, Gordon conceded that he had not yet discussed the surveillance video
with appellant. Indisputably, the video was a key piece of the evidence against appellant.
Contrary to any suggestion otherwise, we question whether defense counsel could truly be
prepared when he or she did not discuss the primary evidence in the case with the client
27
prior to the commencement of trial. We would be presented with a much different case
had the court simply granted a brief postponement, or perhaps simply continued the case
until the next day, so that these communications could take place.
We recognize that appellant informed the trial judge that he and counsel had
apparently discussed a plea in this case. Nevertheless, appellant maintained that they did
not discuss the discovery or the facts of this case. And, at minimum, there is nothing in
this record showing that the failure to communicate was caused by or somehow due to
appellant’s refusal to talk to counsel.
Accordingly, we conclude that counsel’s admitted failure to discuss this case with
appellant, under the circumstances, was a meritorious reason for discharge of counsel.
Because the court abused its discretion in concluding otherwise, we shall vacate the
judgment and remand for further proceedings.
JUDGMENT VACATED AND REMANDED
FOR FURTHER PROCEEDINGS.
COSTS TO BE PAID BY BALTIMORE
COUNTY.
28
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1361
September Term, 2015
______________________________________
ROBERT ANTOINE WEATHERS
v.
STATE OF MARYLAND
______________________________________
Woodward,
Graeff,
Thieme, Raymond G., Jr.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Concurring Opinion by Graeff, J.
______________________________________
Filed: December 1, 2016
I concur in the judgment only. I write separately because, although I agree that
appellant should not have been required to proceed to trial without first having the
opportunity to speak with his attorney, I do not agree with the conclusion by the Majority
that the circuit court abused its discretion in finding that appellant had no meritorious
reason to discharge counsel.
As the Majority points out, Rule 4-215 does not define “meritorious.” And although
the Court of Appeals has equated the term with “good cause,” see Dykes v. State, 444 Md.
642, 652 (2015), there has been limited guidance regarding what constitutes “good cause”
to discharge counsel.
Other courts using a “good cause” standard in this context, however, have been more
specific. Scenarios deemed to constitute “good cause” to replace counsel include “a
conflict of interest, a complete breakdown of communication, or an irreconcilable conflict
which [could] lead . . . to an apparently unjust verdict.’” McKee v. Harris, 649 F.2d 927,
931 (2d Cir. 1981) (quoting United States v. Calabro,
467 F.2d 973, 986 (1972)), cert.
denied,
456 U.S. 917 (1982). Accord United States v. Lott,
310 F.3d 1231, 1249 (10th Cir.
2002); State in Interest of J.F.,
317 P.3d 964, 967 (Utah Ct. App. 2013); 3 LAFAVE ET AL.,
CRIMINAL PROCEDURE § 11.4(b) (4th ed. 2007) (and cases cited therein). These scenarios
represent situations in which a defendant reasonably could believe that an attorney would
not competently represent him or her.
Here, there was no allegation of a conflict of interest. And although there were
indications of “acrimony” between appellant and Mr. Gordon, there was no allegation that
‒Unreported Opinion‒
it rose to the level of an “irreconcilable conflict.”7 The specific allegation here involved a
“breakdown of communication.” The issue before us is whether there was a “breakdown
of communication” of such magnitude that it was an abuse of discretion for the circuit court
to deny the motion to discharge counsel.
In determining whether a court abused its discretion in denying a request to
discharge counsel due to a breakdown of communication, courts have looked to several
factors. The United States Court of Appeals for the Fourth Circuit lists the following
factors as relevant: (1) the timeliness of the request; (2) the adequacy of the court’s inquiry
into appellant’s complaint about counsel; and (3) whether appellant and his or her “‘counsel
experienced a total lack of communication preventing an adequate defense.’” United States
v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004) (quoting United States v. Mullen,
32 F.3d 891,
895 (4th Cir.1994)). The Tenth Circuit applies these factors, as well as a fourth factor:
“[W]hether the defendant substantially and unreasonably contributed to the
communication breakdown.” Lott,
310 F.3d at 1250. I agree that these factors are relevant
to the analysis whether the court abused its discretion in finding good cause to discharge
counsel based on a lack of communication.
Here, application of these factors leads to the conclusion that the circuit court did
not abuse its discretion in denying appellant’s motions to discharge counsel. The requests
7
“Attorney-client conflicts justify the grant of a substitution motion only when
counsel and defendant are so at odds as to prevent presentation of an adequate defense.
The general loss of confidence or trust alone is not sufficient to substitute new counsel.”
State v. Stenson, 940 P.2d 1239, 1272 (Wash. 1997) (en banc), cert. denied,
523 U.S. 1008
(1998).
-2-
‒Unreported Opinion‒
to discharge counsel at issue here were made on the date set for trial, after the case already
had been postponed three times for appellant to retain counsel. And there is no dispute
here that the court conducted an adequate inquiry into appellant’s complaint regarding
counsel. The first two factors weigh against a finding that the court abused its discretion
in denying appellant’s motion to discharge counsel.
We thus turn to the third factor, whether appellant and his appointed counsel
experienced a “total lack of communication preventing an adequate defense.” Defense
counsel advised the circuit court that, although he had not had an opportunity to speak with
appellant about this specific case, there had been “global discussions” between them about
similar robbery charges pending against appellant.8 The prosecutor stated that he had
discussed the case with defense counsel, and defense counsel stated that he was “familiar
with” the case and prepared to try the case. Although he requested that the court conduct
motions that day and not start the trial until the next day, giving him the opportunity to
discuss the specifics of this case with appellant, defense counsel made clear his belief that
his lack of communication with appellant, up until that time, did not prevent him from
communicating with appellant going forward or from being able to give appellant an
adequate defense. Cf. People v. Gibson, 6 N.Y.S.3d 198, 199 (N.Y. App. Div. 2015)
(“Although the mere complaint by a defendant that communications have broken down
8
The prosecutor referred to multiple robberies as “similar schemes,” in which
appellant “and a co-defendant . . . made off” with merchandise. Defense counsel also stated
that the cases were “all very similar.”
-3-
‒Unreported Opinion‒
between him and his lawyer is not, by itself, good cause for a change in counsel,”
substitution is proper “where a complete breakdown has been established”; in that case
“both defendant and defense counsel agreed that they were unable to communicate.”). See
also Mullen, 32 F.3d at 897 (discharge appropriate where counsel and the defendant would
not be able to communicate effectively during trial, “making an adequate defense
unlikely”).9 Thus, there was not a showing of a “breakdown of communication” that
prevented defense counsel, going forward, from adequately defending appellant.
Finally, with respect to the fourth factor, courts have held that a defendant is not
entitled to substitute counsel where he or she is the cause of the communication breakdown.
For example, in United States v. DeTemple, 162 F.3d 279, 289 (4th Cir. 1998), cert. denied,
526 U.S. 1137 (1999), the court upheld the denial of the defendant’s request for substitute
counsel, noting that the defendant’s “own conduct caused the initial lack of
communication,” and stating that a “court can properly refuse a request for substitution of
counsel when the defendant’s own behavior creates the problem.” See also State in Interest
of J.F., 317 P.3d at 968 (“Mother’s decision to avoid communicating and cooperating with
Counsel was . . . Mother’s choice to avoid Counsel [and it] did not ‘establish[] that a
complete breakdown of communication existed.’”); Sekou v. Warden, State Prison, 583
9
Here, as noted by the Majority, appellant and defense counsel appeared to
communicate during the trial, with defense counsel actively participating in the
proceedings, despite appellant’s decision to discharge him as counsel. See United States
v. DeTemple, 162 F.3d 279, 288-89 (4th Cir. 1998) (A “total lack of communication simply
does not exist where the attorney and the client communicate significantly during trial.”),
cert. denied,
526 U.S. 1137 (1999).
-4-
‒Unreported Opinion‒
A.2d 1277, 1282 (Conn. 1990) (“Although under some circumstances a complete
breakdown in communication between a defendant and his counsel may warrant
appointment of new counsel[,] a defendant is not entitled to demand a reassignment of
counsel simply on the basis of a ‘breakdown in communication’ which he himself
induced.”) (citations and quotation marks omitted).
Here, the record reflects that appellant was at least partially responsible for the lack
of communication with defense counsel. At the December 8, 2014, hearing, defense
counsel told the court that he had tried to discuss with appellant his intention to ask the
court for a postponement, but if his request was denied, they would go to trial on the
simplest of the robbery cases. Counsel noted that appellant, who wanted private counsel
to represent him, responded by “screaming at” defense counsel, so counsel “just sort of
terminated the conversation.” Similarly, in June 2015, on the morning of trial, defense
counsel advised the court that he had gone to see appellant in “lockup,” but appellant again
refused to talk to counsel, stating: “You’re not my attorney.” These facts support the
conclusion that there was not an inability to communicate or a “breakdown of
communication,” but rather, an unwillingness by appellant to communicate with defense
counsel because he wanted to retain private counsel.
In sum, there was no showing that there was an inability to communicate that would
interfere with defense counsel’s ability to represent appellant. Instead, the record showed
a lack of sufficient communication up to that point, which was caused, in part, by
appellant’s conduct. Given that scenario, and that the request was made the day of trial,
-5-
‒Unreported Opinion‒
after three postponements for appellant to obtain counsel, I would hold that the circuit court
did not abuse its discretion in denying appellant’s motion to discharge counsel.
I do agree, however, that appellant should have had the opportunity to consult his
attorney prior to the start of trial. In that regard, In re Shawn P., 172 Md. App. 569 (2007),
is instructive. In that case, a public defender agreed to enter an appearance and represent
a defendant who appeared with no attorney.
Id. at 572. The public defender asked for a
continuance, which the court denied.
Id. at 574. This Court held that the trial judge
“abused his discretion by denying counsel’s request for a continuance or, in the alternative
and at the very least, by refusing to afford counsel an opportunity to confer with appellant.”
Id. at 588.
Here, defense counsel advised the court that he was prepared to represent appellant,
but he requested that trial not start until the next day, after he had an opportunity to confer
with appellant. Rather than grant that request, or give defense counsel some time to speak
with appellant, the court denied the motion and proceeded with jury selection. See State v.
Hardy, 415 Md. 612, 627 (2010) (characterizing voir dire as a “meaningful trial
proceeding”). In proceeding to trial, without first giving appellant a chance to speak with
his attorney about the case, the circuit court abused its discretion. Accordingly, I agree that
appellant is entitled to a new trial.
-6-
