Appeal from the Superior Court of the District of Columbia. (FEL4635-04) (Hon. Harold L. Cushenberry, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID and GLICKMAN, Associate Judges, and TERRY, Senior Judge.
A jury found appellant, Eric R. Hill, guilty of two counts of assault with a dangerous weapon (knife and pistol),*fn1 carrying a dangerous weapon (knife),*fn2 possession of a firearm (pistol) during a crime of violence,*fn3 and threatening to injure a person (Marlin T. Hill).*fn4 Appellant argues that (1) the trial court violated his Sixth Amendment right to represent himself by appointing unwanted standby or advisory counsel to assist him; (2) his due process rights were violated when the trial court refused to allow him to proceed with his defense on the second day of trial; and (3) the trial court violated his Sixth Amendment right to a speedy trial. Discerning no error, we affirm the judgment of the trial court.
The government presented evidence showing that on June 24, 2004, Marlin Hill drove his UPS truck into the driveway of the Museum Square Apartments, located in the 400 block of K Street, in the Northwest quadrant of the District of Columbia. He exited his vehicle to deliver packages, and when he returned to his truck, two ambulances had blocked his path. Eric Hill approached the UPS truck and repeatedly insisted that Marlin Hill could get by the ambulances. After Eric Hill kept repeating the same thing, Marlin Hill declared that he was "under enough stress . . ." and requested that Eric Hill leave him alone. Undeterred, Eric Hill approached the passenger side of the UPS truck, carrying a knife with a T-shaped handle. Marlin Hill became frightened, grabbed a hand cart and told Eric Hill that he would hit him with the cart if he ventured into the truck. Eric Hill walked behind the truck and went into the Museum Square apartment building, where he lived.
About two minutes later, while Marlin Hill was waiting for the ambulances to move, he noticed Eric Hill about a car length away from the UPS truck, and heard him curse and state: "Yeah, you said you were going to kill me . . . . You are a big shot now." He then pulled up his shirt, and Marlin Hill saw Eric Hill's hand on a pistol. When Marlin Hill asked him what he was talking about, Eric Hill cursed and replied: "You know, I will kill you. I will kill you."
Bruce Spivey, the maintenance supervisor at the Museum Square Apartments, testified that he knew Eric Hill as a resident of the apartment building. He saw an "agitated conversation" or "some type of argument" between Marlin and Eric Hill while the UPS truck was blocked in the driveway by the emergency vehicles. Eventually, after one of the emergency vehicles had moved a little, he saw Marlin Hill trying to make his way out of the driveway. Eric Hill, who had his back to Mr. Spivey, was running alongside the truck and making "agitated gestures," with his elbows extended. After Eric Hill had re-entered the apartment building, Marlin Hill returned to the building, looking "upset, afraid, frightened," and he told Mr. Spivey, "The guy pulled a gun on me." When Mr. Spivey identified the man as Eric Hill, a resident of the building, Marlin Hill declared, "Well, I need to call the police."*fn5
Mr. Hill contends that he "specifically and vociferously protested the presence of appointed counsel." Nevertheless, he complains, "[t]he trial court denied [him] the right to sit alone in front of the jury and conduct the trial pro se without the jury seeing assigned counsel reviewing evidence and appearing to be part of a 'trial team.'" He insists that he should have been "permitted to control his own defense and requiring him to accept advisory counsel with the jury's knowledge is unconstitutional." He emphasizes that the jury must know that he is representing himself. He also complains that "he was denied his due process constitutional rights to defend himself," that is, "the right to offer the testimony of witnesses and present a defense," because the trial court incorrectly declared that he had rested his defense on May 10, and would not allow him to continue his presentation on May 11. The government asserts that standby or advisory counsel "did nothing to interfere with or inhibit appellant's assertion of his right to proceed pro se in this case." Furthermore, the government contends, the "modest involvement [of] standby counsel -- being introduced to the jury panel, sitting at defense table, and examining those documents handed to him and appellant by the prosecutor -- did not remotely violate appellant's right of self-representation."
The Factual Context of the Right to Self-Representation and the Due Process Issues
On September 9, 2004, Mr. Hill informed the trial judge that he had expressed his desire to represent himself when he appeared before a magistrate judge. During the trial court's inquiry concerning his ability to represent himself, Mr. Hill revealed that he is a high school graduate, studies law at home on his own, and had represented himself once before with a good result. He insisted that he was able to represent himself and did not want a public defender. At the trial court's request, on September 13, 2004, Dr. Mary Elizabeth Kenel, a clinical psychologist employed by the Forensic Services Administration of the District's Department of Mental Health, conducted a competency evaluation. She reported that Mr. Hill was diagnosed, on October 22, 1997, with "Schizophrenia, Paranoid, Chronic with Acute Exacerbation," and on February 5, 2002, with "Psychotic Disorder Not Otherwise Specified." He suffers from depression and Grand Mal seizures. However, Dr. Kenel concluded that he was able to function properly, and that "mental health factors do not substantially impair his capacity to have a factual and rational understanding of the proceedings against him and to properly assist counsel with the preparation of his defense." Dr. Kenel was aware of Mr. Hill's "determination to represent himself in court," and found "nothing to indicate [he] would be unable to conduct himself appropriately in the courtroom, and he identified proper courtroom behavior."
On October 8, 2004, Mr. Hill again appeared before the trial court and asserted that he wanted to represent himself. The trial court determined that Mr. Hill was competent but explained the problems with self-representation, and why Mr. Hill needed a lawyer to advise him. Mr. Hill told the trial judge that he wanted to bring a restraining order against his newly appointed attorney. As he put it, "I don't want him near me." On October 21, 2004, Mr. Hill's assigned counsel filed a motion to withdraw as counsel, which the trial court granted. The judge explained to Mr. Hill the difficulties of self-representation and the "intricacies of criminal law." He informed Mr. Hill that he would not be treated differently, that he would have to "file appropriate motions," and "serve [them] appropriately." The court concluded that Mr. Hill could represent himself, and scheduled a substantive status hearing for January 19, 2005. The judge appointed another counsel to advise Mr. Hill.
At the trial court's request, on January 26, 2005, Dr. Kenel conducted a competency screening examination of Mr. Hill. Dr. Kenel reported that Mr. Hill "has a basic knowledge of the judicial process and the roles of various court officials." She noted that he was "representing himself at this point," and he was "aware of the need to behave appropriately in the courtroom and expressed his willingness to comply." Finally, she again expressed the opinion that: "Mr. Hill is competent because mental health factors do not substantially impair his capacity to ...