Hargett v. State

slip.op. (2020) | Cited 0 times | Court of Special Appeals of Maryland | November 19, 2020

Kim Hargett v. State of Maryland No. 1809, Sept. Term 2019 Opinion by Shaw Geter, J.

Criminal Law > Pretrial Procedures > Request to Discharge Counsel Meaningful trial proceedings had not commenced on the day of trial when the trial judge summoned the venire panel to the courtroom, but they had not arrived or entered the courtroom to begin jury selection when the defendant made a request to discharge counsel, making the procedural requirements of Md. Rule 4-215 mandatory. Criminal Law > Pretrial Procedures > Request to Discharge Counsel

the following factors: (1) the merit of the reason for discharge; (2) the quality of ior to the request; (3) the disruptive effect, if any, that discharge would have on the proceedings; (4) the timing of the request; (5) the complexity and stage of the proceedings; and (6) any prior requests by the defendant to discharge counsel. Criminal Law > Pretrial Procedures > Request to Discharge Counsel Trial judge strictly complied with the mandatory requirements of Md. Rule 4-215 when he gave the defendant an opportunity to explain his reasons for wanting to discharge his attorney, implicitly found that the reasons lacked merit, and instructed the defendant that if he discharged his attorney, he would have to represent himself at trial beginning that day. Circuit Court for Baltimore City Case No. 509015028




No. 1809

September Term, 2019 ______________________________________



STATE OF MARYLAND ______________________________________

Shaw Geter, Reed, Salmon, James P. (Senior Judge, Specially Assigned),

JJ. ______________________________________

Opinion by Shaw Geter, J. ______________________________________

Filed: November 19, 2020 In 2009, Kim Hargett, appellant, was convicted by a jury sitting in the Circuit Court

for Baltimore City of robbery, attempting to obstruct justice, and suborning perjury. 1 The

circuit court imposed a sentence of 25 years without the possibility of parole for robbery

and concurrent sentences of five and ten years, respectively, for attempting to obstruct

Kim Lee Hargett v. State, No. 1479, Sept. Term 2009 (filed Dec. 20, 2010), cert. denied,

Hargett I

-conviction relief,

permitting him to file a belated second direct appeal to raise a claim that had been omitted

from his first direct appeal due to ineffective assistance of counsel. In this appeal, appellant

asks one question, which we have rephrased as:

to discharge counsel on the first day of trial, prior to the commencement of jury selection?

For the following reasons, we answer that question in the negative and shall affirm the

judgment of the circuit court.


The underlying facts pertaining to the charges against appellant are largely

irrelevant to the sole issue on appeal and we opinion in the first direct appeal. Briefly, the charges against appellant arose from the

robbery of an 84-year old man, Dr. Wilbur E. Favor, in East Baltimore. Hargett I at 1.

1 Appellant was acquitted of one count of robbery with a deadly weapon. Appellant accosted Dr. Favor as he got out of his car and stole his wallet. Id. at 1 2. The

police arrested appellant the next day near Security Square Mall after he attempted to use

Id. at 2 4. Appellant gave a statement to the

transferring between busses. Id. at 4 5. After Dr. Favor had identified appellant as his

assailant from a photographic array and at a pre-trial hearing, he received a phone call from

Id. s friend, Violet Williams, later testified at trial that she had

summonses and to lie about where appellant told her he found the credit cards, which was

different from what he told the police. Id. at 7.

Appellant, who was represented by an attorney from the Office of the Public

Defender, appeared for a pretrial motion hearing on June 2, 2009. At the end of the hearing,

the trial judge stated that jury selection would begin the next afternoon, at 2 p.m. Appellant

him that he had a lawyer and to speak to his lawyer, not to the court. The proceedings then

adjourned for the night. The next afternoon, at 2:19 p.m., the parties appeared for trial. 2 Before the case was

ct a response.

The State called the case and counsel introduced themselves. The court asked

waive my

going on for 14 months and I have reason.

[APPELLANT]: Excuse me. And I have reasons.

THE COURT: Mr. Hargett. All right. Let me make sure you

After appellant had been sworn, the court inquired as to his age, his education level,

his mental health, and whether he was under the influence of drugs or alcohol. The court

then advised appellant about the charges against him and the maximum penalties that could

be imposed on some of the charges. The court further advised appellant about the

assistance an attorney could provide at trial, including determining whether to elect a bench

2 The portion of the transcript that preceded the start of voir dire was not included

request to discharge his counsel was not apparent from the record and his attorney did not raise the propriety of the denial of that request in Hargett I. This was the basis upon which post-conviction relief was granted, resulting in the instant appeal. trial or a trial by jury; assisting with the selection of a jury; objecting to inadmissible

evidence at trial; advising appellant as to whether to testify in his case; and deciding

whether and whom to call as witnesses in his defense.

think Shakespeare is right when he says, anybody who represents themselves has a fool for


[APPELLANT]: Your Honor, my pleasure is to try to seek another counsel, cause as I just said

through that door, my job is to tr

for you to seek other counsel. And I can tell you, after being a judge 24 years, the Office of the Public Defender is not going to appoint any other counsel for you. red to walk through that [door] before that jury gets here, your choices are to let [defense counsel] represent you or represent yourself.

best to seek another counsel?

(Emphasis added.) Appellant then explained that four months earlier, in February 2009, defense

him personally about

to complain. The supervisor wrote back to appellant and a

defense counsel had not spoken The court added that if Dr. Favor was represented by counsel, defense counsel was not

speak to him directly with 3

Appellant explained that it was his understanding that defense counsel could speak

sel was something totally different from dealing with

for an attorney to ask permission to speak to the client of another attorney. The court added

that defense counsel was obligated to investigate on behalf of appellant.

3 not communicate about the subject of the representation with a person who the attorney knows is represented in the matter by another attorney unless the attorney has the consent -304.2. ined:

They got some tapes over at Towson, and on the tapes I was mentioning that if [Dr. Favor] had passed away he said if [Dr. Favor] passed away, the case would be over with. And I think he heard it as well as the State heard that. y against me ever[] since.

The colloquy that followed reflects that the trial judge may have misunderstood

appellant to be saying that defense counsel made the remark about Dr. Favor dying:

THE COURT: If [Dr. Favor] passed well, that would be a fact.

[APPELLANT]: Yeah, it would be a fact.

act. Without a witness

[DEFENSE COUNSEL]: Your Honor, may I ask a question?


[DEFENSE COUNSEL]: Who said that if [Dr. Favor] passed away the case would be over?

[APPELLANT]: (Inaudible)

[DEFENSE COUNSEL]: Who said that?

THE COURT: All I need to know, Mr. Hargett, the jury is out there. If I let [defense counsel] out, you go it alone. But the jury is there. I just need to know what you want to do, sir?

(Emphasis added.) After confirming that the preceding discussion h

After a brief unrelated discussion at the bench, counsel returned to their trial tables

After the court conducted voir dire of the venire panel, a jury could not be selected

from the remaining prospective jurors and the panel was dismissed. 4 Hargett I at 5. The

next day, the trial court conducted voir dire of a new venire panel, a jury was selected, and

trial commenced.

We will include additional facts in our discussion of the issues.



Rule 4-215(e) provides:

Discharge of Counsel -- Waiver. If a defendant requests permission to discharge an attorney whose appearance has been entered, the court shall permit the defendant to explain the reasons for the request. If the court finds

permit the discharge of counsel; continue the action if necessary; and advise

4 At that juncture, appellant addressed the court, stating that defense counsel was not communicating with him or answering his questions. In Hargett I, appellant argued that this exchange amounted to a request to discharge his counsel and that the trial court erred by its handling of the request. Hargett I complaint that defense counsel was not communicating with him was not a request to discharge counsel. Hargett I at 10 13. As mentioned, the earlier request to discharge counsel that is the subject of the instant appeal was not raised in Hargett I because it was not included in the transcript of the June 3, 2009 trial proceedings. the defendant that if new counsel does not enter an appearance by the next scheduled trial date, the action will proceed to trial with the defendant unrepresented by counsel. If the court finds no meritorious reason for the el without first informing the defendant that the trial will proceed as scheduled with the defendant unrepresented by counsel if the defendant discharges counsel and does not have new counsel. If the court permits the defendant to discharge counsel, it shall comply with subsections (a)(1)-(4) of this Rule if the docket or file does not reflect prior compliance.

If a request to discharge counsel is timely, the trial court must strictly comply with

the mandates of Rule 4-215(e) in responding to it. Pinkney v. State, 427 Md. 77, 87 (2012).

-215 constitutes reversible

Id. State v. Brown, trial proceedings have commenced, the decision to permit the defendant to [substitute

Id. at 426.

In the instant c request to discharge his counsel was timely, triggering application of Rule 4-215(e). 5


have commenced in relation to jury selection. We discuss each in turn.

In State v. Hardy, 415 Md. 612, 617 (2010), the defendant requested to discharge

his counsel on the first day of trial, after the venire panel was sworn, and the trial judge

had made introductory remarks to the prospective jurors and had asked them several

5 There is no dispute that appellant clearly communicated that he sought to discharge his attorney. had commenced before the request to discharge counsel was made and, thus, that strict

compliance with the procedures outlined in Rule 4-215(e) was not required. Id. at 622. It

further held that the trial court had not abused its discretion by denying the request to

discharge counsel. Id. In so holding, the Court emphasized that Maryland appellate


-by- Id. at 624

not begun before voir dire commences (at pre- appearance in court on the morning of his or her trial) and that they have begun after voir

dire concludes (after the State presents evidence and duri Id. at 626


The Court reasoned that voir Id. at 627. It had

defendant to discharge or substitute his legal counsel would pose a risk either of disruption

Id. at 625. Under the plain meaning, voir dire

Id. at 627. Turning to the functional definition, the Court opined:

In situations where Rule 4-215(e) applies, it permits essentially a criminal defendant to discharge defense counsel almost at will. When the process of jury selection begins, however, the soon-to-be members of the jury share the courtroom with the defendant and defense counsel. From this point on, allowing the defendant to change at will his or her representation, as Rule 4- 215(e) permits, would risk confusing the prospective jurors, one of the concerns against which Brown warns. For example, jurors simply may become confused by seeing the defendant appear with an attorney one may affect the questions and challenges posed during voir dire, jurors may

defendant embarks on abrupt and apparent change to that strategy. In addition, allowing such a change to defense counsel after the entire venire panel is summoned to the courtroom poses a considerable risk of disruption to the trial proceedings in that courtroom, to the court .

Id. at 627 (emphasis added). Given the potential for disruption and confusion, the Court

held that Rule 4-215(e) did not apply to a request to discharge counsel made after the start

of voir dire. Id. at 628. The circuit court also had not abused its broad discretion by

Id. at 630 31.

Two years later, in Marshall v. State, 428 Md. 363, 364 65 (2012), the Court of

defendant made his motion to discharge counsel after the venire panel had been summoned

to the courtroom, but before any questions had been asked of them. The defendant had

appeared for trial that morning and, after preliminary matters were addressed, the jury panel

arrived in the courtroom. Id. at 364. After the trial judge welcomed them, but before the

roll call, the defendant interjected and made a request to discharge counsel. Id. at 365. The

court deferred ruling until after the courtroom clerk took the roll and the jury was dismissed

from the courtroom. Id. It then heard and granted the de to represent himself at trial. Id. He was convicted and noted an appeal arguing, in part, that the trial court failed to strictly comply with Rule 4-215(e). Id. at 365.

The appeal reached the Court of Appeals, which affirmed. The Court was guided

Hardy Id. argument that because no questions had been asked of the venire panel, Hardy did not

control the disposition. Id. at 375. Rather, the Court reasoned that because the jury panel

already had entered the courtroom, had observed the defendant at the trial table with his

counsel at one moment and observed him without trial counsel thereafter, the same concern

for jury confusion was implicated. Id. at 376. Further, the Court emphasized that it was

proceedings, as the venire panel had to be dismissed from the courtroom immediately after


constitutional right to self-r

preliminary matters, including several matters in which the defendant addressed the court.

Id. at 376 77. Th Id. at 378.


We return to the case at bar. Appellant contends that his request to discharge

Hardy. In his view, voir

dire commences is timely. (Quoting Hardy, 415 Md. at 626.)

Marshall and Hardy discharge counsel] was not governed by Rule 4-

after the prospective jurors had already been summone It

acknowledges that the holdings in those cases turned, in part, upon the physical presence

of the venire panel in the courtroom. The State emphasizes however, that the Court also

which would be triggered by the

panel, direct them to the courtroom, and, in this case, escort them from the Mitchell

Courthouse to the Elijah E. Cummings Courthouse (formerly known as Courthouse East),

located across the street. Finally, the State contends that as in Marshall, appellant was not

lengthy pre-trial motions hearing the day before.

We agree with appellant that his request to discharge counsel made on the morning

of trial and before the venire panel entered the courtroom was timely and, thus, was

governed by Rule 4-215(e). As Hardy and Marshall make clear, the determination of

timeliness is to be made on a case-by-case basis. In those cases, the jury panel had been

summoned to the courtroom, had entered the courtroom, had been addressed by the trial

court, and, in Hardy, had been asked several voir dire questions. In the instant case, in contrast, the jury panel had been called but had not arrived or entered the courtroom when

appellant made his request to discharge counsel. Jury confusion was not at issue because

the venire panel was not present in the courtroom until after the court had resolved

extent as in Hardy or Marshall. There, the court was obligated to dismiss the jury panel

shortly after they entered the courtroom. Further, the State asks us to take judicial notice

of the fact that the prospective jurors had to walk across the street to get to the courtroom,

which we do. We also recognize, however, that the jury panel that ultimately entered the

courtroom shortly after appellant elected not to discharge his counsel later was dismissed

and jury selection was started anew the following day. Thus, any disruption occasioned by

-minute request was in fact inconsequential in this case.

The State further emphasizes that appellant could have made his request to

discharge counsel during the pretrial hearing on June 2, 2009. That his request would have

been timely if he had made it the day before is clear. Nevertheless, for the reasons already

discussed, we conclude that it also was timely when made on his trial date before the jury

panel entered the courtroom to commence voir dire.


We now turn to whether the trial court complied with Rule 4-215(e) in response to

-step process. Brown,

342 Md. at 425. Pinkney, 427 Md. at 87 88 (citations omitted).

First, if a criminal defendant makes a request to discharge Brown, 342

Id. If the request is found to have merit, the court shall: 1) permit the defendant to discharge

he or she may be required to self-represent if new counsel is not hired by the next scheduled

trial date. Id. defendant of the possibility he or she will proceed pro se if substitute counsel is not


counsel if it lacks merit. Id.

1. Opportunity to Explain Reasons

reasons for wishing to discharge his counsel because it told him incorrectly that it would

be a violation of the attorney-client privilege for him to do so. We conclude that the trial

court gave appellant an adequate opportunity to explain the reasons he believed defense

Thereafter, appellant was allowed to explain that defense counsel had a conversation with if Dr. Favor died the case would go away. The trial court did not prevent appellant from

fully explaining his reasons. This satisfied the first step of the three-step process.

2. Evaluation of Merits

meritorious, the

State v. Taylor, 431 Md. 615, 631 (2013) (quoting

Pinkney, 427 Md. at 93 94, in turn quoting Moore v. State, 331 Md. 179, 186 (1993)). If

inquire further. Webb v. State

however, and further

inquiry is necessary to assess the merit of that reason, then the court must inquire. Moore,

331 Md. at 186.

Whether Rule 4-215(e) is implicated or not, the determination of merit is committed

to the sound discretion of the trial court. See Taylor -

Cousins v. State, 231 Md. App.

417, 438 (2017). In exercising its discretion, the court is guided by six factors:

representation prior to the request; (3) the disruptive effect, if any, that discharge would have on the proceedings; (4) the timing of the request; (5) the complexity and stage of the proceedings; and (6) any prior requests by the defendant to discharge counsel. Brown court and defendant ab

Hardy, 415 Md. at 629. A court removed from any center mark imagined by the reviewing court and beyond the fringe of

what that cour King v. State, 407 Md. 682, 697 (2009)

(quoting North v. North, 102 Md. App. 1, 14 (1994)).

In the case at bar, appellant proffered two reasons for seeking to discharge his

recording discussing the outcome of the case if Dr. Favor died before trial. The trial court

implicitly found that neither reason was meritorious. We perceive no error. The appellant

did not identify any confidential information communicated to Dr. Favo

of breakdown in communication that might justify discharging counsel on the eve of trial.

See Cousins -client conflicts justify the grant of a

substitution motion only when counsel and defendant are so at odds as to prevent

ted). This is especially so here, given

that defense counsel explicitly denied that he was biased or prejudiced against appellant

and was willing and able to continue representing him at the trial.

nst him. Though we have held

that it was timely and triggered the procedures outlined in Rule 4-215(e), it was made at the last possible moment before voir dire commenced. Appellant stated that the issues had

been going on for 14 months. The conversation appellant found objectionable occurred

several months earlier. Appellant offered no explanation as to why he waited until the

morning of trial to raise these concerns with the trial court.

tage, a continuance would

have been necessary and the disruption would have been significant, both for the court and

is trial counsel lacked merit was not an abuse

of its broad discretion.

his case would not be postponed and that, if he chose to discharge his counsel, he would

have to represent himself. The court complied with Rule 4-215(e) by so advising appellant.

For all these reasons, we affirm.


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