REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 99
September Term, 2016
______________________________________
EARL SYLVESTER COUSINS
v.
STATE OF MARYLAND
______________________________________
Arthur,
Leahy,
Thieme, Raymond G., Jr.,
(Senior Judge, Specially Assigned)
JJ.
______________________________________
Opinion by Arthur, J.
______________________________________
Filed: February 1, 2017
On the day before his robbery trial was to begin in the Circuit Court for Baltimore
County, Earl Sylvester Cousins asked to discharge his court-appointed counsel. In
accordance with Md. Rule 4-215(e), the court allowed Mr. Cousins to explain the reasons
for his request, but found that he did not have good cause to discharge counsel. The court
proceeded to inform Mr. Cousins that the trial would proceed as scheduled and that he
would have to represent himself if he discharged his counsel. Mr. Cousins said that he
would discharge his counsel and represent himself.
When the trial began the following day, Mr. Cousins announced his intention to
disrupt the proceedings, and he engaged in a profanity-laden tirade against the judge.
The court ordered that he be removed from the courtroom, but offered him the
opportunity to return if he agreed to behave in a civil fashion. Mr. Cousins did not agree.
The jury convicted Mr. Cousins of robbery, and the court sentenced him to 15
years’ imprisonment.
QUESTIONS PRESENTED
Mr. Cousins presents two questions for our review:
I. Did the trial court abuse its discretion in finding that [Mr. Cousins] lacked a
meritorious reason to discharge counsel, including that it failed to conduct any
inquiry into a possible conflict after assigned counsel said he was conflicted?
II. Did the trial court err when it removed [Mr. Cousins] from the courtroom
during his trial without providing him with any means to monitor the
proceedings?
We affirm.
FACTS AND LEGAL PROCEEDINGS
On September 13, 2014, Mr. Cousins entered the First Mariner Bank on Loch
Raven Boulevard in Baltimore County and surveyed his surroundings. A teller asked Mr.
Cousins if he needed help, and he replied that he was looking for his grandmother. Then
he exited the bank.
Approximately 45 minutes later, Mr. Cousins returned with a second man. One of
the men approached the teller and asked her to make change. The other approached
another teller and said, “I want everything you got in your drawers, don’t give me a dye
pack, don’t give me bait money and I’ve got a gun so don’t make me use it[.]”
Footage from the bank’s surveillance system, which showed the incident, was
played in court, and still photographs from the surveillance cameras were introduced into
evidence. A teller identified Mr. Cousins as the man who robbed her. A detective
identified Mr. Cousins based on his detailed review of the surveillance footage,
photographs of Mr. Cousins, and time that he spent interviewing Mr. Cousins.
Baltimore County detectives arrested Mr. Cousins and interviewed him regarding
the robbery. A video-recording of the interview was played for the jury. In the
recording, Mr. Cousins told the detectives that he committed the robbery with a man
named Nelson. Mr. Cousins explained that he was addicted to drugs and that he
committed the robbery to obtain money to buy drugs. Mr. Cousins identified Nelson and
2
himself in photographs. A detective testified that he also interviewed Nelson and learned
that the two were “associates.”
We shall provide additional facts as necessary in our discussion of each of the
issues presented.
DISCUSSION
I. Mr. Cousins’ Request to Discharge Counsel
A. February 5, 2015, Postponement Hearing Before Judge Cahill
Mr. Cousins first expressed disagreement with his appointed counsel at a hearing
on February 5, 2015, at which defense counsel requested a postponement. Mr. Cousins
stated that he did not agree to the postponement. He said, “I’m ready for trial today for
real. I don’t even need him [defense counsel] . . . I’m ready to go and I have a lawyer
and it ain’t him . . . John Deros is my lawyer now.” Apparently addressing the
prosecutor, Mr. Cousins added, “How do you like that, asshole?”
The court granted the postponement, and advised Mr. Cousins to “tell Mr. Deros
the trial is now April 7, 2015.”
B. March 25, 2015, Hearing Before Judge Cahill
By the time of a subsequent hearing on March 25, 2015, private counsel had not
yet entered an appearance. At that hearing, Mr. Cousins’s appointed counsel expressed
concern over his ability to communicate with his client and requested a competency
evaluation:
[DEFENSE COUNSEL]: … I’m asking Your Honor to enter an
Order for an examination for competency as well as criminal responsibility
as long as I’m having him evaluated. You may recall our last appearance
3
before Your Honor when the matter was postponed on the last trial date.
Mr. Cousins had some choice words for Mr. Cox [the prosecutor]. . . . Over
the course of the last month to six weeks, Mr. Cox and I have been
attempting to resolve some discovery issues, most of which have been
resolved and as I collected that discovery . . . I have gone to see my client
and review those with him. Those conversations deteriorate to the point
where I’m not, I don’t believe that Mr. Cousins, it deteriorates to the point
where he’s not a meaningful participant in one, reviewing the discovery
with him and two, being able to participate in strategy decisions or
litigation. . . . But based on the demeanor, I think it’s important to have him
evaluated so that if there’s something we can do to, to help him be a
meaningful participate, participant in, in trial preparation and litigation, I’d,
I’d rather have that done before we did anything else.
Later in the proceedings, Mr. Cousins explained that the case had previously been
postponed and that he was supposed to get another attorney, but that this had yet to
happen. The following colloquy between Mr. Cousins and the court ensued:
[MR. COUSINS]: I seen my attorney and every time I see him, it’s
the day before trial, okay? Now, we was going in front of Judge Ensor,
right? If you don’t have everything that you need for the case, then that’s a
discovery violation. Don’t get mad at me when I ask you for certain things.
I like to go over things concerning my case because when it’s all over with,
I’m the one in prison, he’s the one home with his family, you know what I
mean? I’ve been in prison twenty-five years, it ain’t, it ain’t a pretty
feeling, right? But don’t tell me no lie, tell me anything get mad when I
question what’s having something to do with me, you know? I don’t be
disrespectful to you. I was trying to talk to you in the bullpen, you walked
away from me. You want me to respect you, I respect you but don’t tell
lies and don’t think that you going to do anything to me because I’m not
going to let you do that to me.
[COURT]: All right. Easy, Mr. Cousins. Let me ask you this. You
just referred to the fact that you had another attorney entering an
appearance?
[MR. COUSINS]: I was trying to get a, John (inaudible) and they
talked, I don’t know what’s going on with it.
[COURT]: Well, did you hire Mr. Diros (phonetic)?
4
[MR. COUSINS]: I was trying to.
[COURT]: Okay. It would be exceedingly unwise, in my
professional judgment, for you to discharge [defense counsel] at that, at this
point in time, when discovery is being exchanged and he, in my
independent judgment, is trying to look out for your best interest. But if
you’re, are you asking to discharge [defense counsel] at this point in time?
[MR. COUSINS]: Yes, sir. Yes, sir. I’m asking --
[COURT]: Okay and, and then you would be left without a lawyer,
is that what you want to do?
[MR. COUSINS]: I’d be left without a lawyer. If I’m going to give
myself, I can get myself some time, I can throw myself on the mercy of the
Court because we are not seeing eye to eye okay?
[COURT]: Okay.
[MR. COUSINS]: And you know --
[COURT]: Is there any other reason, aside from what you’ve
expressed, to support your request --
[MR. COUSINS]: Well, how do I, how do I communicate with
somebody who don’t want to communicate with me? I can’t walk out the
County jail and say, hey, I want, I call your office, you come and see me
three times, and its [sic] every time before Court date. You don’t come and
see me, I’m right down the street from you. You got mad yesterday, I can’t
watch the videos, I don’t have the pictures, all I have is police reports and
some other stuff, you know, I don’t have the things that I’m supposed to
have. I filed my Motion for discovery, I filed for bail review, I filed for the
things I needed, you know, I don’t have none of them. I don’t have no
responses to that . . .
Defense counsel argued that the court should not rule on Mr. Cousins’s request to
discharge counsel until it had resolved the issue of competency. The court agreed:
[DEFENSE COUNSEL]: I would think that should the evaluation
come back that he’s competent and, and the Court wants to address that
again, that is absolutely appropriate but this is too serious a matter to leave
him without counsel, at least at this junction.
5
[COURT]: Couldn’t agree more. So at this point in time, based on
the limited colloquy that we’ve had on the bench, or from the bench I
should say, I do not find that there are good reasons or meritorious reasons
to support a discharge of [defense counsel] and the Office of the Public
Defender. That’s a, that’s a matter that I can take up again down the road
but I’m going to deny any request, to the extent that I must under Maryland
law, complicated as it is, interpret what you said and request a discharge at
this time, that request is denied. I’m going to grant the request to postpone
the trial in this case.
The court concluded the proceeding by indicating that it would “sign the Order for
examination for competency to stand trial, criminal responsibility.” 1
C. May 28, 2015, Motions Hearing Before Judge King
After finding Mr. Cousins competent to stand trial on May 28, 2015, the court
heard pretrial motions, which included a motion to suppress Mr. Cousins’s recorded
statement to the police. The recording of Mr. Cousins’s statement was played and
transcribed into the record. In the statement, Mr. Cousins admitted that he had been
using large amounts of cocaine and heroin, that he was intoxicated when he committed
the robbery, and that he committed the robbery to obtain money to buy drugs.
Appointed counsel, who was still representing Mr. Cousins, argued that the court
should suppress the statement because Mr. Cousins did not give a knowing and voluntary
waiver of his Miranda rights. He maintained that Mr. Cousins’s admission to recent and
extensive drug use, in addition to his demeanor while making the statement,
1
Mr. Cousins does not challenge the court’s conclusion that he lacked a
meritorious reason to discharge his appointed counsel at the hearing on March 25, 2015.
6
demonstrated that he was intoxicated or in withdrawal and that his statement could not
have been voluntary. The court denied the motion.
D. February 1, 2016, Motions Hearing Before Judge Cahill
On February 1, 2016, the day before the trial was to begin, the court held a hearing
to address a letter that Mr. Cousins had written to the court. Before the court read the
letter into the record, it asked Mr. Cousins if he wished to discharge his counsel.
Mr. Cousins responded by complaining of defense counsel’s failure to introduce a
portion of his police interview during the motions hearing on May 28, 2015. The portion
of the interview in question showed him lying on the floor for several hours, asleep or
unconscious, in a manner consistent with intoxication or withdrawal. Specifically, Mr.
Cousins said:
[T]he issue that I’m bringing towards the Court was we had a Motion
hearing and we were shown, the disc was shown concerning the police
interrogation and the whole disc was not shown, parts was withheld and the
parts (inaudible) showing me high, sick, laying on the floor with a sheet
wrapped around me. Now if you’re going to show the disc, if you’re going
to show what happened at the arrest, then show the whole disc . . . . You
know, and it deals with my arrest too, and I was high and if you going to
withheld something, that’s prosecutor misconduct. My attorney know what
was withheld from the Judge and I wrote Judge King and as far as him
trying not to go in front of Judge King. Judge King even said, if we have
any other problems or anything, bring it to him. Okay? I asked him to go
back to him and let him know . . . If you’re going to show the disc, show
the whole disc (inaudible) and to say we’re going to trial for the 13th case, 2
no, no, no, we ain’t going nowhere. This man is not going to represent me.
If you’re going to give me a trial, give me a fair trial, don’t show what you
want to show. The whole disc deal with my arrest and that’s where I’m at
with that and let’s go over this, let’s go over, let’s show the disc, let’s show
2
The “13th case” refers to this case, which involved a robbery that occurred on
September 13, 2014. The State had indicted Mr. Cousins for several other robberies on
several other dates.
7
what he redact from the disc and let’s take it in front of the Motion Judge.
That’s have a fair trial. If we’re going to have a trial, have a fair trial, you
know?
The court read Mr. Cousins’s letter into the record. Mr. Cousins’s grievances
included these:
1. The prosecutor had withheld a portion of the video-recording that was shown
to the motions court. The part of the recording shows him on the floor with a
sheet wrapped around him, withdrawing from drugs.
2. On the day he used profanity in addressing the prosecutor, he had asked to
represent himself, and asked his attorney whether there were “any prints,” but
his attorney said “no.” 3
3. He said, “I don’t need [defense counsel] to get me life. I could get myself that
and that’s when I cussed [the prosecutor] and [defense counsel] out.”
4. He “spent twenty-three years in prison because [he] had ten whites, two blacks
and all from your County.”
5. He wanted to call various attorneys and the judge from the May 28 motions
hearing to be witnesses at a hearing at which he would play the full, three-hour
recording.
After the court read Mr. Cousins’s letter into the record, it reminded Mr. Cousins
of his right to counsel:
Lawyers, [defense counsel] included, are experts in preparing defenses and
challenging the State’s proof and the manner in which it was gathered.
Attorneys are experts in negotiating pleas, presenting Motions, sitting next
to you and trying the case if necessary, advising you on how and whether to
present defenses and if you are found guilty of an offense and presenting
mitigation to the Court that might lessen your punishment.
3
We see nothing to indicate that fingerprints were an issue in this case.
Fingerprints may have been an issue in an earlier case in which Mr. Cousins was
convicted. See infra n.4.
8
The court asked Mr. Cousins if he had “any other complaints about [defense
counsel]?” Mr. Cousins replied:
Yes, sir. Basically, you know, to, to even talk about starting tomorrow,
right? . . . you take the disc itself, you know. If you’re going to show the
Motion, let’s show the Motion and let’s show the Judge everything that
deal with the Motion. You going to start a trial and you’re going to
withheld [sic] something from the Motion, Judge, that’s denied me a fair
trial. I’m on the floor high. He testified that, that the detective over there
testified when he arrested me I looked to be defeated. You know, he didn’t
get on the record and state that I was high. He knew I was high. I was
under the influence of drugs during the interrogation. He also said that I
looked defeated and I just looked (inaudible). I was arrested in, in west
Baltimore on the City streets, drug syringe in my pocket, cocaine in my
pocket and I’m high on that tape. High as a god damn kite, you know what
I mean? And he tried to get me life, he want to give me life so he say,
right? . . . Let’s go in front of Judge King and show this part that he
redacted from the tape and then we can start trial. And I’m actually
representing myself because I don’t need him to get me life. I really don’t.
I can get myself life. I can say, hey, Judge Cox, come on let’s have a
kangaroo court like we had before, you know? I don’t need no lawyer to
get me life, Your Honor. I had twenty-five no parole. I know the games
this man play. He lied about a fingerprint report. It wasn’t no fingerprint
when I cussed him out in Court. 4 It wasn’t none of that, you know. And I
still don’t have all the information.
Shortly thereafter, Mr. Cousins said, “I don’t even think I can get a
representation out of this man in the conflict that we have, ain’t no coming back
from that, man. You know, ain’t no coming back from that.”
When the court asked defense counsel to respond, he addressed the alleged
“conflict,” which involved a complaint to the Attorney Grievance Commission. The
4
Based on our review of the record, it appears that Mr. Cousins was accusing the
prosecutor, not his defense attorney, of playing games and lying about fingerprints. The
alleged lie appears to have occurred in a previous criminal trial that resulted in Mr.
Cousins’s incarceration.
9
complaint, which was dismissed after Mr. Cousins’s trial but before his sentencing,
appears to have concerned his counsel’s failure to attempt to play the three-hour video-
recording in its entirety, including the lengthy portions that depicted Mr. Cousins while
he was unconscious or asleep, at the suppression hearing. Defense counsel said:
[T]he Attorney Grievance matter has been pending since late November,
early December, and that’s tied my hands as far as being able to
communicate with my client towards the possibility of reopening the
Motions to try and make the record he’s asking me to make. The record of
the Motion, there is a record at the Motions, there were somethings played,
there were some things that were not played. The officers were cross[-]
examined. My hands are tied to, to the extent that, you know, I’m kind of
in this, this limbo with the grievance pending. Now, if the grievance hadn’t
been filed or had been cleared up, I would have an opportunity to talk to my
client with an eye towards deciding whether or not we wanted to reopen
Motions on his request. This is a very serious, these are very serious
matters. There’s five separate incidents, any of which could subject Mr.
Cousins to life without parole.
Earlier in the hearing, defense counsel stated that he was ready to go forward with
trial the following day, but would not be able to do so unless the grievance was settled.
Later, however, counsel stated that he would like to take every opportunity to continue to
represent Mr. Cousins. Although the grievance had been pending for at least two months
(“since late November, [or] early December” of 2015), and the trial was scheduled for the
following day, appointed counsel had not moved for leave to withdraw his appearance
under Md. Rule 4-214(d).
The State made it clear that the portion of the recording in question depicted Mr.
Cousins once his police interview had concluded. The recording equipment continued to
run because Mr. Cousins remained in the interview room after the questioning had ended.
10
In the State’s view, the rest of the video was irrelevant to the motion court’s
determination.
In his description of the portion of the recording that had not been shown to the
motions court, defense counsel observed that it was “a couple hours” long and that the
detectives had re-entered the room to have Mr. Cousins identify a picture. Defense
counsel could not “tell if [Mr. Cousins was] asleep or just lying on the floor with a
blanket over him[.]”
In ruling that it did not find a meritorious reason for Mr. Cousins to discharge his
appointed counsel, the court explained:
I certainly do not believe that there’s any meritorious reasons for a
discharge of [defense counsel] based on the information that has been
presented here and I will make that finding on the record. Now, I am duty
bound to advise you, Mr. Cousins, since I do not find any reason at all,
meritorious or otherwise, that, that is intelligible, to allow you to discharge
[defense counsel]. But I still can’t legally prevent you from discharging or
firing him. You have the absolute right to represent yourself, but if you fire
[defense counsel], this trial will proceed as scheduled. I’ve heard no reason
to think that a postponement would be in order under the circumstances
* * * *
So you can fire him, but then you’re going to be standing there picking a
jury tomorrow by yourself.
Before the court asked Mr. Cousins for his final decision regarding the discharge
of his counsel, the following exchange ensued, beginning with Mr. Cousins’s concern
about the video:
[MR. COUSINS]: You ruled on it and you ruled it on something you
haven’t even seen, that’s basically, and we was in front of Judge King,
okay? And my reason was asking for the witness that I had, who was
attorneys at law and was there to review the tape as it was playing in Court,
11
right? Of course, [the prosecutor] going to make everything where he want
it to be and I still say he’s a liar and he’s a crook and he’s a cheat and he’s a
piece of shit and I will tell him that in his face.
[COURT]: Okay. Well, that, that’s enough. I’ve made my ruling.
[MR. COUSINS]: [Defense counsel] is a piece of shit and a liar too.
[COURT]: You can discharge [defense counsel] if you wish.
[MR. COUSINS]: And I discharge [defense counsel], and that, that
police over there is a liar and a piece of shit.
[COURT]: You would be extraordinarily –
[MR. COUSINS]: (inaudible) asshole.
[COURT]: You would, you would, it would, it would not be in your
interest to discharge [defense counsel].
[MR. COUSINS]: (inaudible) he’s discharged and may you have a
blessed day, asshole.
[COURT]: Wait a minute. . . . Keep him right there. Do you wish to
fire [defense counsel]?
[MR. COUSINS]: Yes, I wish to fire [defense counsel].
[COURT]: If, if, if you do that, you are going to be standing in front
of a jury box tomorrow with twelve people.
[MR. COUSINS]: Guess what? That’s a fair trial. That’s a fair trial.
[COURT]: Okay.
[MR. COUSINS]: At least I know where I stand at.
[COURT]: And that’s what you wish to do?
[MR. COUSINS]: Yes, I’d rather have nobody than to have
somebody who ain’t for me and I’d rather be tried.
[COURT]: Okay.
12
[MR. COUSINS]: Put your hood on tomorrow, asshole.
[COURT]: . . . [I] am finding that you knowingly, voluntarily
waived your right to counsel.
[MR. COUSINS]: That’s right, I waived my right to counsel.
[COURT]: So you don’t get to change your mind about that. . . . .
[COURT]: You’re going to be picking a jury tomorrow, do you
understand that, sir?
[MR. COUSINS]: I’m ready to go to trial without att [sic], I don’t
have an attorney, okay? I have two State’s Attorneys.
In his parting words, Mr. Cousins told the court, “And I don’t have a State’s
Attorney. I have an asshole trying to try me. ([I]naudible) [Prosecutor], and you’re still a
dickhead.”
The trial commenced the following morning.
II. Good Cause to Discharge Counsel
In his brief, Mr. Cousins writes that he sought to discharge counsel because of (1)
counsel’s failure to introduce the portion of the video-recording from his police interview
during the motions hearing and (2) the breakdown of his relationship with his counsel,
which included the grievance that he filed. Mr. Cousins contends that the trial court
abused its discretion in its February 1, 2016, ruling that he did not have a meritorious
reason to discharge his counsel and in not appointing substitute counsel. 5 We reject this
contention and hold that the trial court satisfactorily complied with Rule 4-215(e).
5
Mr. Cousins’s challenge is confined to the court’s ruling on February 1, 2016.
13
A. The Applicable Legal Principles
A defendant in a criminal case has the right to counsel. U.S. Const. amend. VI.;
Md. Const. Declaration of Rights, Art. 21. But even though an indigent defendant has a
right to appointed counsel, that right does not afford an indigent defendant the right to
select the appointed counsel of his or her choice. See Dykes v. State, 444 Md. 642, 648
(2015). Nor does this right “give an accused an unfettered right to discharge current
counsel and demand different counsel shortly before or at trial.” Fowlkes v. State, 311
Md. 586, 605 (1988). “[A] defendant may not manipulate this right so as to frustrate the
orderly administration of criminal justice.” Id.`
An indigent defendant may waive the right to assistance of counsel and choose to
represent him- or herself. Williams v. State, 321 Md. 266, 270 (1990). “A defendant has
a right to self-representation, but it may be unwise to exercise that right.” Dykes, 444
Md. at 646. Courts will indulge every reasonable presumption against a defendant’s
waiver of appointed counsel. Id. at 648.
“Maryland Rule 4-215 implements a defendant’s right to waive counsel, and
incorporates safeguards to ensure that the defendant is acting knowingly and voluntarily
in making that choice.” Dykes, 444 Md. at 651. The rule 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
14
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.
“In light of the fundamental rights implicated, Md. Rule 4-215(e) provides a
‘precise rubric[ ]’ with which we demand ‘strict compliance.’” State v. Graves, 447 Md.
230, 241 (2016) (quoting Pinkney v. State, 427 Md. 77, 87 (2012)).
In Dykes, the Court of Appeals outlined the steps a court is required to take when
the Rule 4-215(e) process is triggered:
(1) The defendant explains the reason(s) for discharging counsel[.] While the rule
refers to an explanation by the defendant, the court may inquire of both the
defendant and the current defense counsel as to their perceptions of the reasons
and need for discharge of current defense counsel.
(2) The court determines whether the reason(s) are meritorious[.] The rule does
not define “meritorious.” This Court has equated the term with “good cause.”
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.
(3) The court advises the defendant and takes other action[.] The court may then
take certain actions, accompanied by appropriate advice to the defendant,
depending on whether it found good cause for discharge of counsel—i.e., a
meritorious reason.
Dykes, 444 Md. at 652 (citations and quotation marks omitted).
In this case, the court afforded Mr. Cousins multiple opportunities to explain his
reasons for discharging counsel, which were the same as those articulated in his brief.
After Mr. Cousins’s explanations, the court asked if he had “any other complaints [he]
wish[ed] to register about [defense counsel’s] misrepresentation of [him].” Later, the
court asked if there was “anything else” to say about his motion to discharge counsel. In
15
addition, the court inquired of defense counsel as to his perception of Mr. Cousins’s
request for discharge. Based on what it heard, the court found that Mr. Cousins did not
have good cause, and it advised him accordingly. Hence, the central question here is
whether the court abused its discretion in finding that Mr. Cousins did not have good
cause.
In evaluating the trial court’s compliance with Rule 4-215(e), Maryland appellate
courts generally apply a de novo standard of review. Graves, 447 Md. at 240. However,
a trial court’s determination that a defendant had no meritorious reason to discharge
counsel under Rule 4-215(e) is reviewed for an abuse of discretion. State v. Taylor, 431
Md. 615, 630, 638, 642 (2013). To constitute an abuse of discretion, the decision “has to
be well removed from any center mark imagined by the reviewing court and beyond the
fringe of what that court deems minimally acceptable.” Evans v. State, 396 Md. 256, 277
(2006) (citation and internal quotation marks omitted).
B. The Video
The video that Mr. Cousins wanted to show consisted of almost two hours of
irrelevant footage of Mr. Cousins passing time in a room after he had been interviewed
by the police. Throughout the majority of the video, Mr. Cousins is either asleep or lying
on the floor with a blanket on top of him. When given the opportunity to dispute that
characterization, Mr. Cousins did not disagree. 6
6
The video brings to mind Andy Warhol’s 1963 film Sleep, which consists of five
hours of footage of a person sleeping.
16
Nonetheless, Mr. Cousins argues that this footage is relevant because it shows that
he was either high or withdrawing from drugs, and thus is evidence that his police
statement was not voluntary. We disagree.
Presenting the video to the motions court would have been senseless and an
unproductive use of the court’s time. The motions court had an ample opportunity to
observe Mr. Cousins’s demeanor during the interview itself, which included the Miranda
warnings, and to rule accordingly on the voluntariness of his statements. The court did
not abuse its discretion in finding no meritorious reason to discharge counsel because of
the failure to attempt to introduce an additional two hours of video footage showing Mr.
Cousins asleep or unconscious after the interview had ended.
C. Breakdown of Relationship With Counsel
Mr. Cousins maintains that the court abused its discretion in ruling that the
breakdown of his relationship with defense counsel, which included the subsequently
dismissed grievance, was not a meritorious reason for discharging counsel. Taken
together, we view the overall breakdown of the relationship between Mr. Cousins and
defense counsel as Mr. Cousins’s unilateral attempt to manipulate the proceedings against
him. Therefore, the court did not abuse its discretion in ruling that this was not a
meritorious reason to discharge counsel.
A complete breakdown in communication is considered “good cause” to discharge
counsel. Weathers v. State, ___ Md. App. ___, 2016 WL 7017959, at *15 (Dec. 1, 2016)
(Graeff, J., concurring) (citing McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981)). In
determining whether a court abused its discretion in denying a request to discharge
17
counsel because of a breakdown of communication, a relevant factor is “whether
appellant and his or her ‘counsel experienced a total lack of communication preventing
an adequate defense.’” Id. at *15 (quoting United States v. Reevey, 364 F.3d 151, 156
(4th Cir. 2004) (internal quotation marks omitted)). It is also relevant to examine
“‘[w]hether the defendant substantially and unreasonably contributed to the
communication breakdown.’” Id. (quoting United States v. Lott, 310 F.3d 1231, 1250
(10th Cir. 2002)). This Court views both of these factors as relevant in determining
whether a court abused its discretion in finding that there was not good cause to discharge
counsel because of a lack of communication. See id.
Mr. Cousins argues that the grievance compromised defense counsel’s ability to
represent him. In support of his argument, Mr. Cousins points to defense counsel’s
statement that the grievance prevented him from asking the court to re-open the
suppression hearing and his equivocal statement that he would not be able to go forward
at trial until the resolution of the grievance.
Assuming for the sake of argument that the grievance prevented counsel from
asking to re-open the suppression hearing as counsel said, we still see no basis to
conclude that the court abused its discretion in finding no meritorious reason to discharge
counsel. The only fathomable reason for defense counsel to attempt to re-open the
motions hearing was that Mr. Cousins vehemently adhered to the false impression that it
would alter the motions court’s ruling on the voluntariness of his statement. Mr. Cousins,
as seen in the record, became unjustifiably fixated on this issue, to the point of engaging
in an obscenity-filled rant. It is, however, beyond any serious dispute that the court
18
would not have changed its decision to deny the motion to suppress if it were required to
review two hours of video-footage of Mr. Cousins lying asleep or unconscious on a floor.
Indeed, given the undisputed characterization of what little the footage showed, it is
highly doubtful that the court would have reviewed it at all before reiterating the denial of
the motion to suppress.
The grievance presents a different question, because it does point out an area of
adversity between Mr. Cousins and his counsel. Nonetheless, because the grievance was
based on the meritless contention that counsel had somehow breached his professional
obligations by not asking the motions judge to view the hours of footage of Mr. Cousins
while he was asleep or unconscious, it is difficult to conceive how it would have
interfered with counsel’s ability to represent his client at trial. Although counsel objected
to going forward while the grievance was still pending, he did not identify how the
grievance would inhibit his ability to represent Mr. Cousins, other than to prevent him
from making a vain request to re-open the suppression hearing. Nor was the alleged
conflict sufficient to motivate counsel to move for leave to withdraw his appearance,
even though the trial was to begin the next day. Meanwhile, counsel told the court that
he was ready to try the case and “would like to take every opportunity to continue to
represent Mr. Cousins.” The court did not abuse its discretion in finding no meritorious
reason to discharge counsel on the basis of a groundless grievance, subsequently
dismissed, which had no material effect on counsel’s ability to represent his client at trial.
See 3 LaFave et al., Criminal Procedure § 11.4(b) (4th ed. 2007) (“a defendant cannot
manufacture a conflict requiring disqualification of appointed counsel by simply filing a
19
disciplinary complaint against the attorney”); State v. Bryant, 285 Kan. 970, 993 (2008)
(holding that court did not abuse discretion in denying defendant’s motion to appoint new
counsel where defendant claimed that current counsel had conflict of interest because he
had filed disciplinary complaint against her). 7
Mr. Cousins correctly observes that when a court “is confronted with the
possibility of a conflict of interest,” it “must take adequate steps to determine whether
such a conflict exists.” Duvall v. State, 399 Md. 210, 233 (2007). He complains that the
court did not adequately investigate the nature of counsel’s conflict in this case. We
disagree, because we are satisfied from our review of the record that the court gave wide
latitude to both Mr. Cousins and his attorney to discuss Mr. Cousins’s complaints. In
fact, the very purpose of the hearing was to investigate the bases, if any, for his
complaints.
Although Mr. Cousins concedes that the trial court is not obligated to appoint a
new attorney whenever an indigent defendant files a grievance against appointed counsel,
he asserts that this matter should prove the exception. In support, Mr. Cousins cites
Taylor v. State, 428 Md. 386 (2012). Mr. Cousins’s reliance on Taylor is misplaced,
because it is inapposite to the case at bar.
In Taylor, defense counsel sued the defendant for unpaid fees while representing
him in a criminal trial. Id. at 411. The Court of Appeals stated that “[s]uch a conflict,
7
Cf. Koffley v. Koffley, 160 Md. App. 633, 639 (2005) (“the fact that a litigant has
made a complaint against the trial judge does not require that the trial judge grant the
litigant’s recusal motion,” because “[t]o hold otherwise would vest every dissatisfied
litigant with the power to recuse the trial judge”).
20
where the attorney-created adversarial relationship adversely affects counsel’s
representation, infects the attorney-client relationship with an element of distrust, likely
to affect the reliability of the trial and undermine confidence in the outcome.” Id. at 410
(quotation marks omitted) (emphasis added). Here, by contrast, the attorney did not
create an adversarial relationship. The putative conflict arose only because of the
meritless claim put forth by Mr. Cousins, and it had no material effect on defense
counsel’s ability to present an adequate defense. The grievance was baseless, and the trial
court clearly recognized it as such in its determination that Mr. Cousins had no
meritorious reason to discharge counsel. Therefore, we too reject Mr. Cousins’s
contention that his attorney grievance complaint constituted a meritorious reason to
discharge counsel.
In addition, we disagree with Mr. Cousins’s assertion that the alleged breakdown
of his relationship with defense counsel, with the grievance as one example, constituted a
meritorious reason to discharge counsel. Although Mr. Cousins may have harbored
acrimony towards defense counsel, this acrimony resulted principally from Mr. Cousins’s
unreasonable demands and did not rise to the level of “good cause” to warrant discharge
of counsel. Weathers, ___, 2016 WL 7017959, at *15 (Dec. 1, 2016) (Graeff, J.,
concurring) (“a defendant is not entitled to substitute counsel where he or she is the cause
of the communication breakdown”); accord United States v. DeTemple, 162 F.3d 279,
289 (4th Cir. 1998) (a “court can properly refuse a request for substitution of counsel
when the defendant’s own behavior creates the problem”), cert. denied, 526 U.S. 1137
(1999).
21
Furthermore, “‘[a]ttorney-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.’” Weathers, 2016 WL 7017959, at *15 n.7 (Graeff, J., concurring) (quoting
State v. Stenson, 940 P.2d 1239, 1272 (Wash. 1997) (en banc), cert. denied, 523 U.S.
1008 (1998)). Yet, here, defense counsel said that he was ready to try the case and
“would like to take every opportunity to continue to represent Mr. Cousins.”
Of Mr. Cousins’s complaints, the most that could be said is that he and his counsel
disagreed about what to do with the lengthy portion of the recording that showed him
while he was asleep or unconscious. A disagreement regarding legal strategy is not,
however, a meritorious reason to discharge counsel. See Bey v. State, 228 Md. App. 521,
534 (2016) (holding that court did not abuse discretion in denying implied request to
discharge counsel based on disagreement about whether to cross-examine victim); see
also United States v. Lott, 310 F.3d 1231, 1249 (10th Cir. 2002) (“[g]ood cause for
substitution of counsel consists of more than a mere strategic disagreement between a
defendant and his attorney”); United States v. Gibbs, 190 F.3d 188, 207 n.10 (3d Cir.
1999) (“disagreement over legal strategy does not constitute good cause for substitution
of counsel); People v. Linares, 2 N.Y.3d 507, 511 (2004) (“good cause does not exist . . .
where, on the eve of trial, disagreements over trial strategy generate discord”).
Throughout the course of these proceedings, Mr. Cousins showed an inability to
conduct himself in an appropriate manner. He relentlessly attacked defense counsel, the
prosecutor, and the trial judge, employing vulgar language and profanity. Mr. Cousins
had difficulty communicating with anyone throughout these proceedings. Given Mr.
22
Cousins’s inability or unwillingness to communicate in an appropriate, civil manner, it is
very likely that his communication problems would have persisted even if the court had
granted a postponement and appointed substitute counsel.
The predicament in which Mr. Cousins placed the trial court is not unique to this
case. Rule 4-215(e) cases present dilemmas for trial courts, and trial courts must exercise
their considered discretion in navigating this “ugly patch of difficult terrain.” See Garner
v. State, 183 Md. App. 122, 127 (2008), aff’d, 414 Md. 372 (2010). In its evaluation of
such a demand, a trial court may choose to credit or discredit the arguments presented,
and after doing so, must use its own judgment in making a ruling. Almost 30 years ago,
Judge Eldridge outlined the conundrum courts have long faced in these instances:
The interplay among the right to counsel, waiver of the right to counsel,
and the Faretta [v. California, 422 U.S. 806 (1975)] right of self-
representation, has posed problems when, shortly before or at the beginning
of trial, a defendant makes an unmeritorious demand for the discharge of
current counsel and for the appointment or retention of different counsel,
and where, as is usually the situation, the appointment or retention of new
counsel would require a trial postponement. If the trial judge properly
refuses to grant such demand, a defendant will often attempt to delay the
proceedings by refusing either to proceed with current counsel or to make
an affirmative election of his Faretta right of self-representation. In such
circumstances, where a postponement would be improper, the trial judge is
faced with the dilemma of forcing the defendant to trial without an attorney
or forcing the defendant to proceed with an unwanted attorney.
Fowlkes, 311 Md. at 589.
Here, Mr. Cousins made a demand for the discharge of defense counsel on the eve
of trial. After permitting Mr. Cousins and defense counsel to speak on the issue, the trial
court found the request to be unmeritorious. The trial court was under no obligation to
accede to Mr. Cousins’s request and to credit his complaints. Instead, in holding that the
23
demand was unmeritorious, the trial court properly exercised its discretion in determining
what to accept as true, and what to discount as false. See id. at 607. The record fully
supports the trial court’s conclusion.
If the court had appointed different counsel, it undoubtedly would have been
forced to postpone a trial that was set to take place the following day. A postponement
would have been disruptive, as both parties were ready to proceed with trial but for Mr.
Cousins’s request to discharge counsel. Furthermore, a postponement would have
rewarded Mr. Cousins for his unacceptable conduct, for his unjustified contentions, and
for fabricating a conflict by filing a groundless grievance. Therefore, we cannot fault the
trial court for ruling that Mr. Cousins did not have a meritorious reason to discharge
counsel.
After the ruling, Mr. Cousins both refused to proceed with defense counsel and
elected to exercise his right of self-representation. His actions placed the trial court in a
predicament, as the court had no choice but to force an unrepresented defendant to stand
trial or force him to stand trial with an attorney he did not desire. The trial court
attempted to dissuade Mr. Cousins from dismissing defense counsel on multiple
occasions and warned him of the consequences of doing so. Mr. Cousins, steadfast in his
desire to proceed without an attorney, said “Yes, I’d rather have nobody than to have
somebody who ain’t for me and I’d rather be tried.” On another occasion, he affirmed
that he had “waived [his] right to counsel.” On yet another occasion, he told the court
that he was “ready to go to trial without” an attorney.
24
In summary, we hold that the trial court did not abuse its discretion in ruling that
Mr. Cousins lacked a meritorious reason to discharge counsel.
III. Mr. Cousins’s Removal From the Courtroom
Mr. Cousins stood trial on February 2, 2016, the day after he had discharged his
appointed counsel. Mr. Cousins was to represent himself.
Before jury selection, Mr. Cousins made it clear that he would disrupt the court
during the trial:
[COURT]: [W]e’re going to make you a copy of the charge papers.
[MR. COUSINS]: . . . You talking about starting a trial, I don’t even
have enough, ample time to read what’s happening with this charge of
September 13th.
[COURT]: All right. Mr. Cousins --
[MR. COUSINS]: That’s some bullshit, man.
[COURT]: I was, I thought I was pretty clear about the fact that --
[MR. COUSINS]: I thought I was pretty clear too. I was getting a
fair trial.
[COURT]: You’re going to get a trial --
[MR. COUSINS]: And I’m going to keep on talking, I’m going to
keep saying what, I’m going to disrupt your Court until you do what you
supposed to do and until then, we (inaudible) communicate.
[COURT]: You’re going to disrupt my Court until what?
[MR. COUSINS]: I’m going to continue to interrupt your Court until
we do what we supposed to do. You’re going to give me everything that
I’m entitled to. You’re going to give me a chance to read my stuff. You’re
not going to just take me to trial today. What kind of shit is that?
25
[COURT]: Okay. Is there anything else you want to say at this
point?
[MR. COUSINS]: Yeah, fuck you.
[COURT]: Oops. All right. So Mr. Cousins, the Court has the
authority to remove you from these Court proceedings which I intend to
exercise in such a moment.
[MR. COUSINS]: (inaudible) exercise.
[COURT]: Hold on just a second, guys. I want to try and get a few
words in edgewise before I remove Mr. Cousins from this proceeding.
[MR. COUSINS]: Fuck you, that’s right, fuck you.
[COURT]: The, I am going to seek, unless you promise to behave
yourself --
[MR. COUSINS]: I’m going to promise you this, kiss my black ass
where the sun don’t shine. I’m going to promise you that.
[COURT]: Okay. I am going to –
[MR. COUSINS]: I promise you I’m going to see you in hell too.
With Hinkle 8 and the rest of you redneck motherfuckers.
The court noted its authority under Biglari v. State, 156 Md. App. 657 (2004), to
remove a disruptive defendant from the courtroom and indicated that it intended to
exercise that authority. The court explained that in its view Mr. Cousins would continue
to interrupt the proceedings, as he had promised. Mr. Cousins indeed continued with his
disruptive behavior, and eventually countered with a statement that, “That’s why they got
a Courts of Appeal [sic] for you, asshole. Come on, let’s go away. Fuck, yeah. Have a
8
Mr. Cousins appears to have been referring to the late J. William Hinkel, who
was formerly a judge on the Circuit Court for Baltimore County. We presume that Judge
Hinkel presided over an earlier criminal prosecution against Mr. Cousins.
26
nice day.” The court had Mr. Cousins removed from the courtroom after it explained
how the trial would proceed. The court also explained that should Mr. Cousins wish to
return to the courtroom and conduct himself appropriately, all he needed to do was to
inform a deputy.
Mr. Cousins was placed in a holding cell outside of the courtroom for the
remainder of the one-day trial. The court assigned a deputy to sit with Mr. Cousins so
that he could notify the court if he wished to rejoin the proceedings. At various phases of
the trial, the court, via the deputy, asked Mr. Cousins whether he wanted to return to the
courtroom. Mr. Cousins declined each time. Mr. Cousins contends that the court erred
when it removed him from the courtroom during his trial and failed to provide him with
any means to monitor the proceedings.
A defendant has the right to be present at every stage of his or her trial. Biglari,
156 Md. App. at 670; see also Md. Rule 4-231. However, “[t]he right to be present is
waived by a defendant ‘who engages in conduct that justifies exclusion from the
courtroom.’” Biglari, 156 Md. App. at 671 (quoting Md. Rule 4-321(c)(1)-(2)). When
faced with a disruptive defendant, a trial judge can “(1) bind and gag him, thereby
keeping him present; (2) cite him for contempt; [or] (3) take him out of the courtroom
until he promises to conduct himself properly.” Illinois v. Allen, 397 U.S. 337, 344
(1970). “When the trial court selects the third option, however, the defendant who is
removed from the courtroom must be advised of the opportunity to return upon a promise
to behave.” Biglari, 156 Md. App. at 671.
27
We hold that the court’s decision to exclude Mr. Cousins from the courtroom was
reasonable. Mr. Cousins concedes that he “initially waived his right to be present.” Mr.
Cousins “did not simply speak out of turn or make the occasional outburst.” Shiflett v.
State, 229 Md. App. 645, 671 (2016). He consistently used vulgar, insulting,
inappropriate, and angry language with the court and the prosecutor. Mr. Cousins
promised the court that he would engage in disruptive behavior to prevent the trial from
proceeding, and he fulfilled that promise while he was in the courtroom. His conduct left
the court with little choice but to remove him.
Mr. Cousins, however, argues that the court erred when it did not afford him the
opportunity to observe the proceedings after his removal. Citing Biglari, Mr. Cousins
contends that the court should have given him a video or audio feed of the proceedings so
that he could remain apprised of what was happening. He asserts that the court’s failure
to do so obstructed his constitutional right to present a defense and to confront and cross-
examine witnesses. Mr. Cousins maintains that even if he chose to return to the
proceedings, his exercise of this right would essentially have been futile because he could
not see or hear the evidence presented in his absence. We disagree with his interpretation
of Biglari and hold that his position is without merit.
In Biglari, the court removed Biglari from the courtroom after his repeated
interruptions and his refusal to comply with the court’s instructions. Biglari, 156 Md.
App. at 664. Biglari was escorted to the judge’s office, where he observed the
proceedings on a closed-circuit TV set. Id. at 663-64.
28
Mr. Cousins maintains that “[t]rials are invariably video or audio recorded,” and
he asserts that, “[p]ractically speaking, providing a video or audio feed of a trial to an
absent defendant is hardly an onerous requirement.” We reject his contention because we
are unwilling to assume that all courtrooms in Maryland have the capacity to support a
live feed to an outside location.
Mr. Cousins reads Biglari to mandate that defendants be provided a means to
watch or listen to the proceedings when a court removes them from the courtroom
because of their misconduct. Biglari contains no such mandate. Although the circuit
court provided Biglari with a TV to view the proceedings, this Court did not hold that the
court was required to do what it did.
Biglari requires only that a trial court give a defendant the opportunity to return
upon a promise to behave appropriately. Biglari, 156 Md. App. at 674 (“[e]rror occurred,
however, when appellant was not afforded the opportunity to return to the courtroom
upon a promise to behave properly”). In this case, the trial court made it abundantly clear
to Mr. Cousins how he could, if he chose, exercise his right to re-enter the trial:
I’m going to place a deputy in the cell with you at all times. If you decide
that you have changed your mind and wish to attend your own trial, all you
need to do is tell that deputy that you have changed your mind and wish to
come out here and participate in the process. You will have a seat at the
trial table, just like any other litigant, you can listen to the evidence. As I
told you before, you can make an opening statement, you can cross
examine witnesses, you can abide by the same terms and conditions that
every other person abides by when they walk through the backdoors of a
courtroom in this County or any other jurisdiction in this State or in the
United States of America. We want you to participate in your trial.
29
The deputy with Mr. Cousins had an earpiece so that he could quickly
communicate with the trial judge if Mr. Cousins elected to rejoin the proceedings. Before
the court recessed for lunch, it observed that Mr. Cousins had not asked to return to the
courtroom. The record indicates that a representative of the court inquired with the
deputy in Mr. Cousins’s cell every five or ten minutes to confirm that he had not asked to
return to the courtroom.
After the recess, the court again ensured that Mr. Cousins had not asked to return
to the proceedings. In an abundance of caution, the court requested that the deputy ask
Mr. Cousins if he wanted to re-enter the courtroom. According to the court, Mr. Cousins
indicated that he did not wish to come back in the courtroom because he would be
disruptive.
Later, the court summoned Mr. Cousins to inform him that the State had rested its
case. The court asked Mr. Cousins if he wished to participate in the trial, and Mr.
Cousins declined. The court again told Mr. Cousins that if he changed his mind, all he
needed to do was to inform the deputy. Lastly, the court requested that the deputy ask
Mr. Cousins if he wished to observe the jury verdict. Once again, Mr. Cousins declined.
In compliance with Biglari, the court afforded Mr. Cousins multiple opportunities
to return to the courtroom if he promised to behave properly. Mr. Cousins refused to
conform his conduct to the court’s reasonable expectations, and those of civil society.
The court did not err in its decision to remove Mr. Cousins from the courtroom, in the
procedure that it used to effectuate the removal, or in the manner in which it safeguarded
Mr. Cousins’s right to re-enter the trial upon a promise to behave appropriately.
30
JUDGMENTS OF THE CIRCUIT COURT FOR
BALTIMORE COUNTY AFFIRMED. COSTS
TO BE PAID BY APPELLANT.
31