State v. Morrison

WATHEN, Justice,

with whom GLASSMAN, Justice, joins dissenting.

I must respectfully dissent. The Court has conveniently and erroneously transferred the duty to acquaint the defendant with the dangers of self-representation from the presiding justice to the family and friends of the defendant. Even if such a radical proposition correctly stated constitutional doctrine, the generalized warnings delivered by the family and friends in this case fall far short of adequately acquainting the defendant with the actual perils of self-representation. Moreover, the record before us presents a classic illustration of the prejudice that results from self-representation.

A criminal defendant has both a federal and state constitutional right to represent himself at trial. U.S. Const, amend. VI; Me. Const, art. I, § 6. When a defendant elects to exercise the right of self-representation, however, the court is required to determine that he has knowingly and intelligently waived the benefits associated with the right to counsel.

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forgo those relinquished benefits. Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”

Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975) (citations and quotations omitted). The United States Supreme Court has adopted a pragmatic approach to the waiver question. The type of warnings and procedures required at any stage of a criminal proceeding depends upon the purposes a lawyer can serve and the assistance he could provide at that particular stage.

At one end of the spectrum, we have concluded there is no Sixth Amendment right to counsel whatsoever at a postin-dictment photographic display identification, because this procedure is not one at which the accused “require[s] aid in coping with legal problems or assistance in meeting his adversary.” See United States v. Ash, 413 U.S. 300, 313-320 [93 S.Ct. 2568, 2575-2579, 37 L.Ed.2d 619] (1973). At the other extreme, recognizing the enormous importance and role that an attorney plays at a criminal trial, we have imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him [to] waive his right to counsel at trial. See Faretta v. California, 422 U.S. 806, 835-836 [95 S.Ct. 2525, 2541, 45 L.Ed.2d 562] (1975); cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724 [68 S.Ct. 316, 323, 92 L.Ed. 309] (1948). In these extreme cases, and in others that fall between these two poles, we have defined the scope of the right to counsel by a pragmatic assessment of the usefulness of counsel to the accused at the particular proceeding, and the dangers to the accused of proceeding without counsel. An accused’s waiver of his right to counsel is “knowing” when he is made aware of these basic facts.

Patterson v. Illinois, 487 U.S. 285, —, 108 S.Ct. 2389, 2398, 101 L.Ed.2d 261 (1988).

Until today, this Court has held that a defendant must be acquainted with the dangers of self-representation prior to trial and the record must reflect that his choice was made with knowledge of the consequences. State v. Tomah, 560 A.2d 575 (Me.1989); State v. Walls, 501 A.2d 803, 805 (Me.1985). When, as in this case, the *1355trial court allows a defendant to represent himself without an express finding of waiver, we review the record “in the light most favorable to the court’s ruling to determine whether the record will support a finding of a knowing and intelligent waiver.” Id.

At arraignment, the entire discussion between the accused and the presiding justice {Brody, C.J.) regarding representation was as follows:

THE COURT: Mr. Morrison, do you have a lawyer?
THE DEFENDANT: No, sir.
THE COURT: Do you need some time to get one?
THE DEFENDANT: No, sir.
THE COURT: You’re going to represent yourself?
THEW DEFENDANT: Yes, sir.
THE COURT: I take it that’s your own choice and you’re not asking to appear pro se because of any financial problems?
THE DEFENDANT: Yes, sir.

At a subsequent call of the criminal docket the following colloquy occured:

THE COURT: Do you have counsel?
THE DEFENDANT: No, sir.
THE COURT: Have you requested counsel?
THE DEFENDANT: No, sir.
THE COURT: Do you want to try this case yourself?
THE DEFENDANT: Yes, sir.
THE COURT: You understand you have a constitutional right to have counsel appointed for you if you can’t afford one?
THE DEFENDANT: Yes, sir.
THE COURT: And you want to try the case yourself, that’s your selection? THE DEFENDANT: Yes, sir.

“[Wjaiver is dependent on the facts and circumstances of each case, [and] it is not possible to specify the elements of an adequate basis for a finding of waiver.” Tomah, 560 A.2d at 576. Despite the fact that the trial justice informed the defendant of his constitutional right to an attorney and determined that his choice of self-representation was not the result of indi-gency, there is no basis in the record to find that defendant’s choice was made with knowledge and appreciation of the dangers of self-representation. See Tomah, 560 A.2d at 576; State v. Gaudette, 431 A.2d 31, 32 (Me.1981). Moreover, there is absolutely no basis for the conclusion that the rigorous standards and procedures imposed by the federal constitution have been met. See Patterson v. Illinois, 487 U.S. at —, 108 S.Ct. at 2397-2398.

The Court concludes that the evidentiary record created at the hearing on the motion for a new trial supports the adequacy of the waiver. I disagree. It is the trial court’s responsibility to advise the accused as to the dangers of self-representation and ensure, before he encounters trial, that defendant’s choice is made with his eyes open. The fact that defendant was advised by family and friends to get a lawyer before trial does not enhance the evidentiary basis for the earlier ruling of the justice presiding at the arraignment and call of the docket. The ruling on waiver must be based on information reflected in the record. Tomah, 560 A.2d at 576 n. 1. The record before us does not support the finding that defendant knowingly and intelligently waived his right to counsel.

Even if we look at the warnings delivered by family and friends, they consist of nothing more than the general warning that he should be represented. Defendant was never informed by anyone that by waiving counsel he was giving up the right to challenge the adequacy of his representation after a conviction. He was not informed of the difficulties he encountered in attempting to testify in narrative form and in attempting to cross-examine the victim. Defendant was not warned of the disadvantages he would suffer in attempting to deal with the district attorney. In fact, he was called for a plea bargaining session and was wrongfully persuaded by the district attorney that if he presented witnesses to testify to his good character, the State would be able to introduce highly prejudicial and embarassing evidence of an unrelated sexual relationship. Despite the *1356Court’s strained analysis the fact remains that defendant presented no character evidence.

I would vacate the judgment. Because the dangers of self-representation are so apparent and yet so easily forgotten, we must protect the right to counsel with more rigorous procedures than those employed in this case.