Hudson v. State

*600 Eldridge, J,

dissenting:

The State, at oral argument in this Court, conceded that Hudson had been denied his constitutional right to the assistance of counsel at trial and that, but for Hudson’s ensuing guilty plea, this case would have to be reversed. The State, however, takes the position that Hudson’s subsequent guilty plea was voluntary and thus cured the denial of his right to counsel. In my view, this is simply incorrect. In light of all the events that transpired in this case, the second guilty plea was the antithesis of “a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Instead, the guilty plea was the product of the prior violations of Hudson’s rights and the chain of events resulting therefrom.

The “alternative course of action” referred to by the Supreme Court in Alford is the choice between a full trial, with adequate representation by counsel, at which all defenses may be raised, or the alternative of a guilty plea forgoing trial. In the instant case, however, the trial court virtually forced Hudson unwillingly to represent himself — a task for which the subsequent events amply demonstrate that he was incompetent. Once placed in this predicament, Hudson did not have any prospect of a trial at which his interests could be either adequately represented or asserted. Consequently, it cannot be said that Hudson had any rational choice among viable alternatives. As Hudson himself repeatedly indicated, he had no option but to secure the most advantageous plea bargain that could be arranged.

It is clear that Hudson did not believe that he had a defense to the charge of attempted robbery with a deadly weapon. He readily admitted his guilt and expressed no objection to serving a sentence on this charge. It is equally clear, however, that Hudson believed that he had a valid defense to the charge of assault with intent to murder, and he repeatedly denied any guilt on this charge. As was confirmed by the police crime lab, the gun Hudson used in the robbery attempt did not have a firing pin and was, therefore, inoperable. Hudson stated that *601he knew that the gun would not operate because he had actually attempted to fire the weapon prior to the robbery attempt in order to be certain that it would not work. Moreover, as Hudson stated, he had

“never used a pistol in any robbery that had bullets, shells, or was operable, you know, because when you go to stick up, or go to rob a place, if something was to go wrong, and you are not prepared for it, then you’re likely to kill somebody, that entails murder, and that entails life imprisonment or the death penalty, see, unless you either prepare for such a situation, you’d be going in with the intention of getting life or getting away, but when you’re just going in with the intent to rob this party —- that’s the way I was thinking. I plead guilty to the armed robbery, but to the attempted murder, I didn’t have no — I was not going in there to murder anyone.”

If the jury accepted Hudson’s statement that he knew the gun to be inoperable, he would have had a valid defense to this charge. Although, as the majority states, the jury might have refused to believe that Hudson was aware of the gun’s condition, it is equally true that the jury might have believed Mm. Normally, an individual owning a handgun knows whether or not it has a firing pin.

Hudson, however, was frustrated in his every attempt to assert this defense. Hudson had attempted to retain a Mr. Sherman to represent him and had understood from Mr. Sherman that he did have a valid defense. Although Hudson alleged that his family had made some payments toward Mr. Sherman’s fee, Hudson learned on the day of trial that the Ml fee had not been paid and that Sherman would not be representing him. Accordingly, he requested a postponement of the trial in. order to arrange for Mr. Sherman to represent him or to arrange for a different private attorney.

Mr. SeJlman, a public defender, had been assigned to represent Hudson. Sellman, however, did little, if anything, to assist Hudson in asserting his defense. Up until the day of trial, Hudson had only had a brief, initial interview with *602Sellman’s law clerk, and had never met or discussed his case with Sellman. The defendant was first informed on the day of trial of the substance of the plea bargain that Sellman had arranged. Although Hudson repeatedly insisted that he wanted to defend against the charge of assault with intent to murder, Sellman simply stated that “there was no valid defense.” The record does not reveal any instance in which Sellman ever discussed the possible merits of this defense; nevertheless, the record does indicate at least six times in which Sellman urged that Hudson accept the plea bargain. Faced with Sellman’s repeated advice to plead guilty, and his disinterest in the defense which Hudson wanted to assert, Hudson not unreasonably expressed his dissatisfaction with Sellman and continued his attempts to get a different attorney. As Hudson stated at the motion for postponement:

“... I would like to request that the Court grant a postponement until I can either see if Mr. Sherman is going to represent me or until I can secure a private attorney. I have been worried about my family trying to get some funds, and we have accumulated a little bit of money, and I believe if I am given a little bit of time we can get the necessary funds to obtain private counsel.
“Now, as far as plea bargain is concerned, I’m not going to accept anything when somebody brings me and gives me — brings me the day that I’m supposed to appear in court and tells me that such and such is going to happen to me if I don’t do so and so. Now, I don’t care how black the situation looks or may appear to be, I know I have a right to come to court and face the people against me, you know, and have a trial by a jury if I so choose, and I don’t want to be represented by the Public Defender because I don’t believe he has my interests at heart, you know, and I want to get a little time so I can get myself together and get a private attorney where I could perhaps get some better advice, and if I do take a plea bargain it would be because I had sound *603judgment and not off the top of my head through fear or pressure.” (Emphasis supplied.)

Thus, Hudson had a legitimate desire to get a different attorney. His dissatisfaction with Sellxnan simply was not expressed in an attempt to get a delay of the case. Rather, it was based on Sellman’s disinterest in asserting the one real defense that Hudson believed that he had.

When, after the trial court denied Hudson’s motion for a postponement, Hudson continued to express his dissatisfaction with Sellman’s lack of interest in asserting his defense, the trial court effectively placed Hudson in an absolute bind. Hudson simply wanted an attorney who was willing to raise his defense to the charge of assault with intent to murder. The trial court, however, in effect ordered Hudson either to take Sellman as his attorney, who repeatedly wanted Hudson to plead guilty and drop his defense, or to represent himself. Hudson expressed this when he told the trial court:

.. Now, I’m going to be tried today on formal indictments, and you’re telling me I should take Mr. ‘Spellman’ because he’s a good counsel, and he’s already said my case is zipped, so if I don’t take the plea bargain I’m through, if I do take it, in my mind, I’m equally through, because I’m giving up my right to a trial, I’m admitting guilt.
“Regardless of how the circumstances look, I’m saying whatever time I get, I’m going to submit to that time without further — seeking legal redress of any means of getting back in society and I am not ready to accept that; I am not ready right now. I’m not saying that the deal offered to me by the State’s Attorney is bad or anything; I’m saying I’m not ready to make any on-the-spot decision about a matter that could affect my life for the next thirty to fifty years; I am not ready for that.”

Faced with this prospect, Hudson decided to accept the plea bargain. He continued, however, to assert his innocence to the charge of assault with intent to murder, stating that he only *604pleaded guilty to that charge because “it’s part of the deal/’ and because

“there’s nothing else lean do but accept, I mean, to plead guilty. I’m not denying nothing as to the facts. I didn’t want to go into denying the guilt of the matter; it was just certain charges I didn’t feel I was guilty of that / wanted, you know, to get private counsel, you know.” (Emphasis supplied.)

After this plea was withdrawn, Hudson continued his attempts to secure a satisfactory attorney. Although he reiterated his dissatisfaction with Sellman, he repeatedly expressed that he desired another attorney and that he was not electing to represent himself. The mere expression of his dissatisfaction with Sellman and his desire for a different attorney clearly did not meet the standard for an election of self-representation set forth in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), or a waiver of his right to counsel. Snead v. State, 286 Md. 122, 406 A.2d 98 (1979); State v. Renshaw, 276 Md. 259, 347 A.2d 219 (1975). Nevertheless, the trial court virtually forced Hudson to represent himself by telling him that, by objecting to Sellman, he had in effect chosen to do so. Thus, despite the absence of a waiver of counsel, the court permitted Hudson to represent himself in the argument of pretrial motions and during the voir dire examination and impanelling of the jury, rather than ordering Sellman to continue to represent Hudson. In so doing, the trial court clearly denied Hudson his right to the assistance of counsel State v. Renshaw, supra. See State v. Bryan, 284 Md. 152, 895 A.2d 475 (1978); Thompson v. State, 284 Md. 113, 394 A.2d 1190 (1978).

Hudson’s repeated expressions of his Inability to represent himself are amply supported by the resulte of his effort. He was frustrated in each and every turn he took. His requests for a postponement in order to prepare to defend himself and to review the evidence were denied. His argument on Ms motion asserting that he had been denied a speedy trial was rejected. During voir dire, the trial court unsuccessfully *605attempted to explain the procedure to Hudson. The following colloquy took place:

“Now, while you are here, Mr. Hudson, you have the right with respect to any member of the panel, including those who respond yes to any of these questions, to move to have them stricken for cause, and I will make a ruling on whether or not to grant that motion. You understand?

“THE DEFENDANT: No, sir.

“THE COURT: Well, there are two types of challenges, one is the peremptory challenge which I have explained to you, of which you have twenty, for no reason at all you can challenge up to twenty prospective members of the jury. In addition to those twenty if there is a reason why that person should not serve as a juror, I will be glad to listen to that reason and make a ruling as to whether or not that person will be stricken for cause. You understand?

“THE DEPENDANT: Not completely, not right now.

“THE COURT: Well, those are your rights. If you wish to strike someone for cause, you have to tell me about it.

“THE DEFENDANT: What I want to know, what reasons are there to strike them for if I wanted to strike them?

“THE COURT: It’s a question of whether there’s any reason why they could not give a fair and impartial verdict in this case.

“THE DEFENDANT: Like I say, I don’t fully understand.

“THE COURT: Well, I can’t think of any other way to explain it to you. Do you want to talk to Mr. Sellman?

“THE DEFENDANT: No. Mr. ‘Spellman’ hasn’t given me any advice yet, except to plead guilty.

“THE COURT: You could ask him about any of these matters. He is in the courtroom.

*606“THE DEFENDANT: I would like to have my private counsel, my personal counsel. I’d like to retain counsel.

“THE COURT: Well, I have explained it to you as best I can. I have previously explained to you what your alternatives are with respect to counsel. I can’t do anything further.

“THE DEFENDANT: Could I make another motion with the Court? I have now been told by the Court that I represent myself. Can I request a postponement?

“THE COURT: No.

“THE DEFENDANT: That’s denied?

“THE COURT: That was denied on Monday.”

Subsequently the voir dire continued. When given the opportunity to have the judge propound questions to the panel for him, he repeatedly stated that he did not know of any questions, and, further, had not known that he would be required to submit in advance the questions for voir dire. When asked whether individual jurors were acceptable, he made no response. Hudson’s attempt to get a delay in order to devise voir dire questions was rebuffed. His request to be permitted to question individual jurors was denied. Finally, he objected to the fact that the State, in his perception, was being allowed to select the entire jury that would try him.

It is apparent from this record that the defendant was incapable of representing himself. Moreover, it is equally apparent that the defendant himself realized that he could not adequately provide for his own defense because he continued in his attempts to secure either a delay or different counsel:

“THE DEFENDANT: I can’t participate in this. I don’t know what — I’m not going to participate in this because I’m not given a chance to submit voir dire questions, I don’t have the information the State has about me, or the jurors, or the circumstances, and I should be equal with the State. The State has all of the postponements, all of the leisure time to prepare for trial, they’ve been aware of when I was coming to court, they’ve had time to prepare. I learn *607of my trial on the day of the trial, and I’m expected to come in here and submit voir dire, not knowing what the charges are, not knowing what information

“THE COURT: Any time you want help from Mr. Sellman —

“THE DEFENDANT: Mr. ‘Spellman’ has refused me help already. He’s already told me I don’t have a defense. I asked him downstairs --

“THE COURT: Please return to counsel table. We will proceed with the selection of the jury.

“THE DEFENDANT: I am not going to participate in this trial without counsel.

“THE COURT: That’s your decision.

(BENCH CONFERENCE TERMINATED)

“THE CLERK: Is Miss Nardi acceptable, Mr. Hudson?

“THE DEFENDANT: I can’t participate in this because I don’t know what’s happening, Your Honor.

“THE COURT: Your answer will be “Yes” or “No” and no further comments.

“THE DEFENDANT: I can’t participate in this, Your Honor, because you’re not allowing me the same chance the State has.

“THE DEFENDANT: Is it possible, once it is proven that I did retain Mr. Sherman as my counsel, that he will be allowed at trial?

“THE COURT: Mr. Sherman informed the Court that he did not represent you, and he had not entered his appearance prior to — He has not entered his appearance in this case at all. I made that determination on Monday that your attorney was the Assistant Public Defender, Alvin Sellman.

“THE DEFENDANT: I’m saying if I can show *608proof that I have retained him as counsel, would he be allowed —

“THE COURT: No.

“THE DEFENDANT: Would he be allowed to be here?

“THE COURT: No.

“THE DEFENDANT: Regardless of what I do, I’ve got to —

“THE COURT: That’s right.

“THE DEFENDANT: You know you cannot force me to take no attorney.

“THE COURT: That’s right. That’s the reason I’m permitting you to proceed to represent yourself.

“THE DEFENDANT: You can’t force me to proceed representing myself.

“THE COURT: That’s just what I’m doing. Now take your seat at the counsel table.

The culmination of the defendant’s attempts to represent himself was his ejection from the courtroom. After Hudson continued to object to the State’s selecting all the jurors, and failed to approach the bench when objecting, the court warned him that if he continued to misbehave, he would be removed from the courtroom. When the defendant asked, “Are you telling me that you can now have my trial without me being present?” the court responded, “If you do not behave yourself as you are required by the rules of court and by the instructions of the judge, that’s exactly what I’m telling you.” When the defendant continued to ask questions about the effect of being removed and to object to the method by which the jury had been selected, the court ordered that he be removed.1

*609The remainder of the jury selection process took placewithout the defendant’s presence and without any attorney taking Ms place. Moreover, white contemplating his prospects that evening, it would likely occur to Hudson that the result would be the same if he continued the attempt to represent himself at the trial. Thus, on the very nest morning, he accepted the plea bargain.

When these events are viewed in their entirety, it is unreasonable to conclude that Hudson’s plea was a voluntary choice among alternatives. He had none. Rather, it was the frustrated product of all of the preceding circumstances. Each step in this chain of events closed one option after another, inevitably leading Hudson to the conclusion that his only option was to plead guilty on the most favorable terms he could obtain. He had unsuccessfully attempted to retain an attorney to present a potentially valid defense to one of the charges. The only attorney available to him had no interest in presenting the defense and repeatedly advised Hudson to plead guilty. His protestations about the assigned attorney’s disinterest were futile. In spite of his expressed desire for legal representation and his constant disavowal of any desire to defend himself, the trial court forced Hudson to represent himself by telling him that he had elected to do so by his prior conduct. As could only be expected, Hudson could not adequately do so. The final straw was his banishment from the courtroom without anyone to represent him.

A court should not always accept a defendant’s statement on the record that his plea is voluntary and uncoerced when there are circumstances indicating that it is not. See Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Under the circumstances of the instant case, it seems clear that Hudson’s guilty plea was virtually compelled by the situation resulting from the prior violations of Ms *610rights. He had no effective opportunity for a full trial at which he could defend against the charge of assault with intent to murder.

Although it may be true, as the majority asserts, that one of his reasons for pleading guilty was to receive a lighter sentence, it seems obvious, under the circumstances, that the guilty plea also represented Hudson’s capitulation to the fact that he could not obtain counsel to effectively defend him, that he could not do so himself, and that he had no other viable alternatives.

Finally it is clear under North Carolina v. Alford, supra, that when a defendant is unwilling to admit his guilt, an effective guilty plea requires a clear expression of the desire to plead guilty. The majority makes much of the fact that, when his second guilty plea was accepted, Hudson did not deny his guilt or assert that he was pleading guilty because it was part of the deal. There is nothing in the record, however, to indicate that Hudson had changed his mind or abandoned his assertion of innocence to the charge of assault with intent to murder. In fact, part of the final colloquy before sentencing reveals that his plea was not without qualification or hesitation:

“MR. SELLMAN: Is there any complaints you had about my services? As I say, I am trying to conscientiously do what I can to help you on your behalf, to have this to work out to your satisfaction. I have done the best I could, and I want to know if you have any complaints about my services before the Court finally disposes of your case.

“THE DEFENDANT: The only complaints I had the judge ruled on, so I’ve already pled guilty, and everything the judge ruled on, I guess lam waiving that now." (Emphasis supplied.)

Given the events that had occurred, Hudson might well have believed that it would be futile to make any further protestations of innocence or expressions that he was pleading to the assault charge only because it was part of the deal. Further, based upon his earlier experience with the first *611guilty plea, he had reason to believe that any such expressions would jeopardize the court’s willingness to accept the plea bargain.

If there had been no prior violations of Hudson’s rights, the colloquy at the time when the second guilty plea was accepted might well have been sufficient to show the plea’s voluntariness. Nevertheless, that portion of the record cannot be considered in isolation. Viewing the case as a whole, it is apparent that the guilty plea was the fruit of conceded violations of Hudson’s constitutional rights. I cannot accept the notion that the defendant’s mere “Yes, sir” responses to the trial judge’s routine questions, under the circumstances here, broke that causal connection.

I am authorized to state that Judges Cole and Davidson concur with the views expressed herein.

. I have doubts that the defendant’s conduct was sufficiently obstreperous and disruptive that it warranted his removal according to the standard set forth in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Moreover, even if it did, I cannot conceive that a pro se defendant can be removed from the court while the proceedings are continued without at least requiring, as the court here did not do, that an attorney take over the defense and represent the defendant. Although one case of which I am aware permitted the trial to proceed without counsel after the defendant had *609been removed, Parker v. State, 556 P.2d 1298 (Okla.Cr.App. 1976), normally the appointment of standby counsel is required. See, e.g., Badger v. Cardwell, 587 F.2d 968 (9th Cir. 1978); State v. Delvecchio, 110 Ariz. 396, 519 P.2d 1137 (1974); People v. Pearson, 52 Ill.2d 260, 287 N.E.2d 715 (1972); Commonwealth v. Africa, 466 Pa. 603, 353 A.2d 855 (1976) (dicta). See also Faretta v. California, 422 U.S. 806, 834 n. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).