Jamar C. Tillman, Appellant,
United States, Appellee.
Argued April 23, 2013
Appeal from the Superior Court of the District of Columbia
(CF2-16221-11) (Hon. Anthony Epstein, Trial Judge)
Kyle A. McGonigal for appellant.
Gilead Light, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, John P. Mannarino, Michael Spence, and Lauren C. Bates, Assistant United States Attorneys, were on the brief, for appellee.
Before Blackburne-Rigsby and Easterly, Associate Judges, and Farrell, Senior Judge.
Farrell, Senior Judge
"There can be no blinking the fact that the right of an accused to conduct his own defense seems to cut against the grain of [the Supreme] Court's decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel." Faretta v. California, 422 U.S. 806, 832 (1975). Recently, the Supreme Court again recognized the "tension in these two principles, " Marshall v. Rodgers, 133 S.Ct. 1446, 1449, 185 L.Ed.2d 540, 544 (2013), one strong enough that in an early post-Faretta decision more than once cited by this court, United States ex rel. Konigsberg v. Vincent, 526 F.2d 131 (2d Cir. 1975), the court observed "that a cause where a defendant is vehemently asserting his right of self-representation is not truly a case of waiver of a constitutional right; it is a decision to assert one constitutional right instead of another." Id. at 133-34.
Nevertheless, while mindful that "[a] criminal trial is not an obstacle course for the judge, " id. at 134, this court in a series of post-Faretta decisions beginning with Hsu v. United States, 392 A.2d 972 (D.C. 1978), has carefully enforced the procedure – "known in this jurisdiction as the „Hsu-inquiry, '" Bell v. United States, 950 A.2d 56, 69 (D.C. 2008) – "for determining the validity of a defendant's waiver of the right to be represented by counsel." McClinton v. United States, 817 A.2d 844, 849 (D.C. 2003). If the procedure is not followed, we "cannot uphold the finding of a valid waiver unless the inquiry of record is buttressed by a compelling case of circumstantial evidence that the pro se defendant knew what he or she was doing." Hsu, 392 A.2d at 983; see Bell, 950 A.2d at 69; McClinton, 817 A.2d at 857; Ali v. United States, 581 A.2d 368, 372 (D.C. 1990).
The required Hsu-inquiry was not held in this case, because, as will appear, the trial judge found it sufficient that one had been performed in an unrelated case involving different charges several months earlier, after which appellant had been allowed to proceed pro se. That inquiry was not an adequate proxy for the one that, under our decisions, had to be conducted in this case. And, because the circumstances do not show compellingly that appellant nonetheless chose to represent himself informed of matters essential to a knowing and intelligent waiver – chiefly the elements of the charged crime (and possible defenses) and his potential sentencing exposure – we must reverse his conviction.
A jury found appellant (hereafter Tillman) guilty of escape from a halfway house. D.C. Code § 22-2601 (a)(1) (2001); Hines v. United States, 890 A.2d 686, 688-89 (D.C. 2006) (noting that a halfway house is a "penal institution" within the meaning of § 22-2601). He had been placed there pursuant to a work release order in the case of United States v. Jamar Tillman, No. CF2-23502-10 (D.C. Super. Ct. Dec 5, 2011), but he then left the institution and without signing out or permission.
The escape charge was uncomplicated; as the judge instructed the jury, the government had to prove only that Tillman had been confined to the halfway house by court order and that he knowingly or deliberately left the house or failed to return to it without permission or authorization. Still, the prosecution had to prove the charge beyond a reasonable doubt, and, as things turned out, it was aided in doing so by an admission Tillman made in court – during a pretrial colloquy with the judge after he had begun acting pro se – that no one had given him "permission [to leave] or nothing. I left because I wanted to leave. . . . Simple as that."
In the unrelated Tillman case referenced above, a jury had originally hung on the combined charges of receiving stolen property (RSP) and unauthorized use of a motor vehicle (UUV). Represented by counsel at that trial, Tillman then asked to act pro se in future proceedings in the case, and the trial court (Judge Pan) engaged him in a full Hsu-inquiry before finding that he had waived his right to counsel. Tillman then pled guilty under a plea agreement in the case. Meanwhile, he had been indicted for escape and appeared before the court (Judge Epstein) for arraignment in September 2011 with appointed counsel, who told the court that "Mr. Tillman plans to represent himself in this case, " though counsel would be there to assist him. When Tillman agreed that "I'm just about to represent myself, " the judge explained that he had a constitutional right to do so, but advised him not to ("it's . . . almost always a big mistake to do so") because he had experienced counsel with him, who at the same time understood that "you're the one who has to make all the critical decisions in this case." When Tillman persisted in his request, the judge said "[y]ou can discuss it with [counsel]" and asked Tillman if he understood the limited purpose of arraignment. Tillman's perplexed response prompted the judge to remark that "you don't know . . . what's happening here. You don't know what you need to do to protect your rights." Rather than set a trial date, the judge scheduled a status hearing at which to decide the waiver issue, warning Tillman that "if you represent yourself, I'm going to treat you just like I would treat a lawyer."
The next month, Tillman's counsel opened the status hearing by reminding the judge that "this is a matter in which Mr. Tillman is representing himself" The judge corrected him by saying that Tillman had "indicated he wanted to represent himself, but I will talk about it when [he] comes out [of the ...