Appeals from the Superior Court of the District of Columbia (F-3147-91) (Hon. Joseph M. F. Ryan, Trial Judge) (Hon. Russell F. Canan, Motions Judge)
Before Farrell, Reid and Washington, Associate Judges
The opinion of the court was delivered by: Reid, Associate Judge
The central issue in this appeal is whether the trial court violated appellant Larry J. McClinton's Sixth Amendment constitutional right to counsel by permitting him, more than halfway through his trial, to represent himself, with the assistance of standby counsel, without making a proper inquiry on the record as to whether appellant's waiver of counsel was knowing, intelligent and voluntary. We hold that on the whole record before us, the trial court erred by not conducting an adequate inquiry with regard to Mr. McClinton's waiver of his right to counsel. However, since the trial court's error did not pervade the entire criminal proceeding against him and his standby counsel in effect functioned as his attorney, automatic reversal of his convictions is not required.
Furthermore, under the applicable constitutional harmless error rule, we conclude that the trial court's error was harmless beyond a reasonable doubt. Discerning no other trial court errors, we affirm its judgment.
In July 1990, Anthony Morrisey was murdered in the Southeast quadrant of the District of Columbia. Approximately six months later, Mr. McClinton, and four other persons, were indicted on multiple criminal counts, including conspiracy to possess with intent to distribute cocaine; conspiracy to commit extortion; kidnaping while armed; extortion while armed; first-degree murder while armed (felony murder); carrying a pistol without a license; and possession of a firearm during a crime of violence. *fn1 A jury convicted Mr. McClinton on these seven counts. *fn2
The record before us shows that when the alleged crimes were committed, Mr. McClinton was in his late teens, had an infant daughter, and had not completed high school. *fn3 His juvenile records in the District reflected three prior charges in 1986 and 1988, two of which related to unauthorized use of vehicles in which he was a passenger. The third District juvenile offense pertained to a drug charge; he was placed on probation for one year. He was charged with robbery with a dangerous weapon in Montgomery County, Maryland in 1987, treated as an adult, and sentenced to five years, with all but six months suspended, and placed on probation for five years.
At trial, the government presented evidence revealing that Mr. Morrisey and Mr. Derek Covington were partners in a drug-dealing operation. On July 11, 1990, Mr. Covington and another person purchased cocaine in New York for $3,000, and were scheduled to deliver the substance to Mr. Morrisey upon their return to the District of Columbia. Mr. Morrisey did not appear at the appointed time and place, and failed to respond to a page. Later, a message was received that Mr. Morrisey was being held for a ransom of $20,000 and half a kilogram of cocaine. Mr. Covington contacted Mr. Morrisey's father who called the police.
Working through the police, Mr. Covington arranged for the delivery of the ransom demands by Mr. Morrisey's father. A detective stood in for Mr. Morrisey and attempted to make the delivery. Although two men approached the delivery bag, which was left on a playground, they did not retrieve it. A little later, Mr. Morrisey's body was found. He had been shot four times.
During trial, the government played a videotaped statement given by Mr. McClinton. He recounted how Mr. Douglas, Mr. Hill, and Damo Long had flagged him down while he was driving with his younger cousin. Mr. McClinton agreed to pick up some cocaine and went to Mr. Douglas' house around 11 p.m. on July 11, 1990, where he saw Messers Morrisey, Douglas, Long and Hill. All of the men got into Mr. McClinton's station wagon. Mr. Douglas had a gun, but Mr. McClinton did not suspect that Mr. Morrisey was being held captive. Mr. Douglas and Mr. Long got out of the station wagon a couple of times to make telephone calls. Later, Mr. Douglas, Mr. Long and Mr. Morrisey were dropped at Mr. Long's home, and Mr. McClinton and Mr. Hill were instructed to go to the playground at Evans Junior High School to make a pick-up. Because Mr. McClinton was scared to get the cocaine, he and Mr. Hill recruited two other persons to pick up the cocaine. All four persons went to the junior high school; and the two recruits went to get the package, but retreated when they saw someone running toward them. Mr. McClinton saw helicopters and a flashing light. He left the area and called Mr. Douglas to inform him that police were all around. Approximately five minutes later, Mr. McClinton heard two gunshots, drove away, and stopped when Mr. Douglas flagged him down and jumped into his station wagon. Mr. Douglas told Mr. McClinton and the others that he had killed Mr. Morrisey.
The Sixth Amendment Right To Counsel Issue
Mr. McClinton argues that his Sixth Amendment constitutional right to counsel was violated when the trial court permitted him to represent himself, after the defense had begun its case, without ascertaining whether he made a knowing, voluntary and intelligent waiver of counsel. The government takes the position that Mr. McClinton "knowingly and intelligently chose self-representation," and argues that he was assisted by standby counsel.
A criminal defendant has a fundamental right to the assistance of counsel since "the essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant." Leak v. United States, 757 A.2d 739, 745 (D.C. 2000). Although the notion of self-representation is not stated explicitly in the Sixth Amendment, the Supreme Court of the United States has declared that the Sixth Amendment "grants to the accused personally the right to make his defense." Faretta v. California, 422 U.S. 806, 819 (1975). In Ali v. United States, 581 A.2d 368 (D.C. 1990), we summarized the Supreme Court's cautionary statements, articulated in Faretta, supra, concerning self-representation, as well as the procedure for determining the validity of a defendant's waiver of the right to be represented by counsel:
When an accused manages his own defense, he relinquishes . . . 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. Johnson v. Zerbst, 304 U.S. , 464-465 (1988). . . . 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." Adams v. United States ex rel. McCann, 317 U.S. , 279 (1942). Ali, supra, 581 A.2d at 371-72 (quoting Faretta, supra, 422 U.S. at 835).
We also reiterated in Ali our reliance in Hsu v. United States, 392 A.2d 972 (D.C. 1978), on Supreme Court Justice Black's "'script'" to be followed when a defendant decides to waive his Sixth Amendment right to counsel:
To be [made] valid such waiver [of counsel] must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused's professed waiver of counsel is understandably and wisely made only from a penetrating and comprehensive examination of all the circumstances. . . . Id. at 372 (quoting Hsu, supra, 392 A.2d at 983) (quoting Von Moltke v. Gillies, 332 U.S. 708, 724 (1948) (plurality opinion)).
We first set the factual context for our analysis of Mr. McClinton's Sixth Amendment argument. During his trial in 1992, Mr. McClinton was represented by court appointed counsel. He and his defense counsel disagreed about trial strategy, particularly whether Mr. Levi Hill would be called as a witness, and whether Mr. McClinton would testify. After the government had completed presentation of its case-in-chief, and Mr. McClinton's motion for judgment of acquittal had been denied, defense counsel advised the trial judge that before he made his opening statement, the court might want to inquire of Mr. McClinton whether he intended to take the stand. Defense counsel also indicated that he would not call Mr. Hill as a witness, but would ask the judge to take judicial notice of the fact that Mr. Hill was an alleged co-conspirator who was tried and acquitted of all charges. Furthermore, defense counsel suggested that because of the conflict between client and counsel, the court might want to make a limited Monroe-Farrell *fn4 inquiry to determine Mr. McClinton's difficulties with his counsel.
The trial judge excused the jury and proceeded with the Monroe-Farrell inquiry, initially telling Mr. McClinton: "[C]counsel has said that you have voiced some dissatisfaction about his representation of you. I would like to know specifically what your problem is." Mr. McClinton responded: "We don't get along." When the trial judge asked for more specificity, Mr. McClinton explained: "He has been telling me to do things that I don't want to do . . . . Telling me to work with the government . . . . We don't get along.
We fuss, we fuss a lot. He fuss (sic) with me and my family." The trial judge did not "find [Mr. McClinton's statements to be] specific enough," and thus took no action, allowing defense counsel's representation to continue. The judge then explained what would happen if Mr. McClinton decided not to take the stand, and alternatively, if he testified. At the end of the explanation, ...