*1 STATE
Christopher S. THORNTON. 99-376-C.A.,
Nos. 98-263-C.A.
Supreme Court of Rhode Island.
June *4 Weisman, Zu-
Aaron Lauren Sandler L. rier, for Plaintiff. Gibran, Rosin, for Paula
Catherine A. Defendant. LEDERBERG, BOURCIER,
Present: On the afternoon of June while FLANDERS, GOLDBERG, JJ. preparing Debra was for leave her em-
ployment at a health center in East Provi- dence, daughter, Amy, her was in the liv- OPINION watching room television and waiting for baby-sitter’s Debra drive her to her BOURCIER, Justice. home. unexpectedly In these consolidated appeals, the defen- walked into the apartment, up came dant, Thornton, Christopher S. first chal- said, Debra got something “I’ve lenges by Superior his convictions you my pocket.” back Debra touched for Mdnapping, felony domestic pocket his back and felt the handle of a assaults, witness, intimidation of a and vio- knife with a blade at long. least ten inches previous lation of a no-contact order. He The defendant pulled telephone then appeals also from the post- denial of his pulled from the wall and Debra into trial motion to reduce the sentences that Adam’s bedroom. When Debra told the were imposed following his convictions. defendant’ way that she was on her work, sharply replied, “You are not and Travel
Facts *5 going to work. You going are to die.” The defendant then directed Debra to tele- years prior For some six to June (Debra) phone employer her him Debra and tell that her Christopher Means and S. (defendant Thornton) car would not start and that she Thornton would not or coming be been in work. The defendant held engaged relationship a from which the knife to her throat while she made the daughter, Amy,1 a was born. De- son, Adam,2 telephone bra had another call. Debra then called for from an earli- Amy, but the defendant her call er told not to relationship years who was seven old. room, defendant, Amy Debra, threatening into the to “take The and the two chil- out, her too” if she came into together dren lived in an the room. apartment on Rockland Street in the town of Narragan- (Di- later, A short time Diane Sullivan sett. ane), Amy’s baby-sitter, telephoned Debra relationship
The between the defendant find why brought Amy out she had not home, and Debra was having described as been a over to her baby-sat where she one, during tumultuous which he had beat- child. Debra told Diane that she was not 3, 1996, work, en her. Shortly Diane, before June De- going to and sensing some- bra broke off the relationship, thing and because was wrong, asked Debra whether the defendant, there, of her fear of the she obtained defendant yes. was and Debra said against a no-contact order him. The no- Because Diane was aware of the no-contact prevented defendant, contact order the defendant order and fear Debra’s of the Debra, contacting permitted but him telephoned she the Narragansett police to daughter, Amy. to visit his might alert them of happening.3 what 1. This testimony planned give is not the child’s real name. that Diane in an upcoming proceeding court "that there would 2. This is not the child’s real name. me,” going be a letter out for and that he was to kill her. After this threat Diane called the telephoned 3. Diane Debra three or four times. police again. This threat formed the basis for spoke On one occasion she with the defen- dant, charge got the defendant’s for witness intimi- who warned Diane “that if he go jail” trouble and he had to because of dation. hours early about twelve had been said hours of June Apparently sensing what Diane, standoff, police Debra the defendant between and into the concluded enraged Debra, Debra in the punched became the defendant would release face, knocking Amy out her front teeth as surrender, they called in the South so minutes, (a watched in horror.4 De Within Kingstown Emergency Services Unit police was bra able observe team) Short- police SWAT for assistance. arriving, were and she screamed out for arrived, ly after team at about the SWAT this, At her help. grabbed the defendant a.m., apartment 4:30 it stormed hair, throat, put his knife her Debra imme- subdued the defendant. kill again threatened to her. arrival diately hospital, a local for exten- taken to police triggered of the then what would sive medical treatment.6 turn out to be con fourteen-hour-long 23, 1996, September Washington On frontation-standoff between the defendant defendant, County grand jury indicted the police, holding with stemming charging him with ten offenses hostage repeatedly threatening Debra 18-19, De- from the June 1996 incident at kill her. The standoff lasted from mid- apartment. charged bra’s He was through afternoon June (count first-degree assault of sexual Debra morning early day.5 hours of the next 1); in a dangerous weapon with a assault time, During repeatedly the defendant (count 2); dwelling felony assault with Debra dragged to the window full view (count 3); dangerous assault with weapon police, where he either would hold (count 4); felony intent to murder Debra her the hair with his knife to her throat bodily injury resulting assault serious arm or with his around her with his knife (count 5); breaking and a dwell- entering to her back. made at Debra least ten (count 6); ing without consent Debra *6 attempts escape unsuccessful from the (count 7); violation of a no-contact order defendant, attempt and after each the de (count 8); intimidating a kidnapping Debra punched During fendant her in the face. (Diane Sullivan) (count 9); and witness standoff, the defendant also stabbed (count 10). Amy The defen- kidnapping times, side, Debra four in twice once 25,1996, arraigned September dant was on back, and once in the arm. pled guilty charges, to all and was standoff, Throughout long the Nar- for referred to the Public Defender’s office ragansett police had extensive interaction Pub- eligibility determination of his for the attempt with the defendant in an to negoti- lic Defender’s services.7 release, ate Debra’s he repeatedly but re- Washing- The trial a Later, before release he began fused to her. County jury place ton took demanding complete amnesty Superior from prose- 2-5, Debra, 1997. On on December December releasing cution return for which Finally, its verdicts on the rejected. jury demands were returned punctured a muscle hopes they 6. One of the stab wounds 4. Debra retrieved her teeth in reimplanted, diaphragm required major could be but because of the du- and near Debra’s kidnapping the teeth deteriorat- ration her surgery properly close the wound. beyond Ultimately, required she salvage. ed bridgework. surgery permanent oral defender public An was 7. assistant arraignment. at his assist defendant Fortunately, police, and the after re- Debra entreaties, persuade peated were able Amy on June 18 at about defendant release p.m. represent himself to Thornton elected to charges
nine that had been submitted se at trial with guilty court-appointed it.8 The found (felony dangerous on count 3 assault with a he concedes that he appeal counsel. On (felony resulting weapon); count 5 assault voluntarily his to counsel right had waived (violation injury); bodily serious count that his violated his argues but waiver order); (kidnapping count 8 of a no-contact because right Amendment to counsel Sixth Debra); wit- (intimidating and count 9 knowingly intelligent- it was not made Sullivan)). (Diane He was found not ness make justice and the trial failed to ly, as- guilty (first-degree on count sexual it in fact so waived. finding that was (assault Debra); sault of count The record us discloses before dangerous weapon dwelling); in a count arraigned September Thornton was (assault Debra); with intent to murder to the Public and he was referred (kidnapping Amy). count 10 eligibili- his Defender’s office to determine were the de- imposed, After sentences He found to ty its services. was timely appealed. fendant eligible, and Public Defender Assistant (1) asserts' appeal, the defendant (Brousseau) as- Richard Brousseau was permitting that the erred in Less than signed Thornton. him without to waive his later, hear- during preliminary a month determining first whether such waiver 18, 1996, Thornton moved ing on October (2) knowing intelligent; that the trial Brousseau, that he did asserting to dismiss justice unduly of self- impaired with Brousseau’s not feel “comfortable” (8) representation; to outline his representation. He failed precluding admission of defense erred regarding Brousseau’s specific concerns allegedly sup- evidence that would have that he be representation requested but defense; capacity his diminished ported assigned public either another assistant (4) per- that the trial erred in private counsel. provided defender or be incidents of mitting past introduction of pretrial hearing justice deferred the misconduct the defendant to dis- proceedings and ordered Thornton of defense prosecutor’s cross-examination Brousseau specific cuss his concerns with Stewart). (Dr. expert Dr. Ronald Stewart *7 could determine whether his concerns to Also before us is the defendant’s consoli- be remedied. post- appeal dated from the denial his trial motion to reduce his sentences. 25, later, weeks on November Some five will be dealt with their These issues again appeared Thornton before opinion. to this Addi- significance order of justice requested Brousseau’s hearing will be noted as needed. tional facts removal, opinion stating that differences and Brousseau existed between himself
Analysis attorney-client relation- that affected the I complaints, ship. Given of Counsel Waiver to requested permitted to be Brousseau counsel, and the as Thornton’s withdraw rejecting representation three After trial, his withdrawal. hearing permitted attorneys before court-appointed chief, entering dwelling without the consent of a At of the state's case in the close justice granted only defendant’s motion ten indictment owner. Thus nine of the acquittal judgment of on count which jury. for charges were submitted to the breaking charged had the defendant with O’Connell, time, of trial” to remove hearing apparent- at that on “the eve The to justice permitted O’Connell sensing appeared hearing that Thornton to have ly withdraw, of the disci- particularly his because delay initiated course intended to filed trial, complaint had been plinary that not that warned Thornton she would Thornton, be- him which she opinion” his next against allow “differences of counsel, alone, in his court-appointed to created conflict interest standing lieved representation of Thornton.9 justify attorney. removal that continued refused, however, appoint to new She (O’Connell) Attorney William O’Connell Thornton, for and advised Thorn- counsel subsequently appointed represent was to to him retain up that it was ton now Thornton, 2, 1996, and on December he proceed pro se. private counsel or to appearance entered his on Thornton’s be- objected justice’s the hearing Thornton half. much O’Connell’s tenure was not told her: action and longer than Brousseau’s. March already attorney, I’m not an know “[W]e have re- Thornton motioned to O’Connell all, driving of all. I’m first Second moved because had declined to O’Connell blind here because we haven’t discussed then-pending appeal by handle a Thornton if want to any type defense. So we finding, from an earlier probation-violation this, I know proceed with fíne. don’t matter that later was resolved when do, I’m and I don’t even going what agreed an pub- Thornton to have assistant say, I made going know what I’m but lic him represent appeal. defender on that presented to the my argument and also later, however, August Five months in late * * * asking me to come court. You’re prior some three weeks to his sched- here, something represent myself for date, again uled Thornton once moved already know I cannot do. we both attorney, to dismiss O’Connell as his as- * * * surely guarantee you But I can serting now that filed a recently he I know thing, we both know don’t one disciplinary complaint against O’Connell doing represent I’m going what to be claiming that keep O’Connell had failed to argu- I myself. your So would find him informed about his case and your is a grounds ment was devoting enough O’Connell not time the fact that I cannot violation based on hearing justice case. re- again myself.” minded Thornton that he entitled to ap- necessarily but Thornton September counsel of On choice, Superior Court previously peared and that she had cau- before a different as- him whom the case had been tioned that O’Connellwould be his last attorney. her for trial determine whether court-appointed Despite signed or whether he was suspicion that Thornton was at- had retained continued *8 trial, again He pro a se. once tempting delay going proceed to the start of his to previously present- to the by moving objected options Thornton’s suspicion prompted hearing you about Mr. O’Con- justice concerns that have 9. The noted: fact, representation, in relate nell and his “This case is the eve of trial. A trial on February and proceedings of back to the assigned as to certain date has been a date They presum- early year. March are The date certain for trial for over month. you all ably complaints have had which Monday, September 8. is scheduled for Yet, you along waited since that time. have And I do not believe that is coincidence. your eve to file motion of trial until Mr. was Your motion to release O’Connell in this seeking to him as counsel approximately relieve August on two filed The case.” weeks before the date certain for trial. counsel, justice. by hearing standby contending ed to him the earlier that Amalfe- area of explained competent Thornton that he understood he tano was not “this law,” already apparently referring to his had a to counsel but was “uncomfort- upon capacity decided diminished defense. my with life in putting able hands—in justice Thornton’s re- The trial refused standby or a counsel’s [O’Connell’s]hands have in this quest “competent to rather represent hands” and would himself my I area of law that base defense on” having “even if it means a fool for a client.” appointed represent to him. requested Thornton then additional time to make prepare pro his defense and to se 26, 1997, than a week On November less objections validity to the of the indictment trial, Thornton before his second scheduled pursuant Superior to Rule 6 of the finally agreed accept to Amalfetano as his Procedure; Rules of Criminal to file a attorney, only on that Thorn- but condition 16(a); discovery objection to Rule pursuant day given ninety ton be “at least a continu- request transcripts previ- and to certain ance to six months continuance based on testimony ous witness under Rule 26.1. explore, fact have to that he would research, witnesses, speak with talk with justice trial again presented Thorn- come to mind.” The anybody would option ton the appearing pro his either justice denied Thornton’s motion for a standby agreeing se with counsel or to be continuance, explaining to Thornton that represented “making O’Connell after had in fact himself represent he chosen peace” Asserting with O’Connell. pro rejecting three times the ser- se, he being appear pro was “forced” to competent previ- counsel who had vices agreed ap- Thornton nonetheless to the ously been him. appointed pointment standby and the The trial considered Thornton’s ac- date then was continued until December tactic, trial-delay tions to be another (Am- Attorney Anthony Amalfetano up grant request for refused alfetano), a experienced seasoned and De- to a six-month trial continuance. On attorney, appointed criminal defense was 2, 1997, proceeded cember Thornton shortly standby thereafter to serve as standby se with Amalfetano as proceeded counsel. Amalfetano to review counsel. Thornton, the various motions had filed and trial, four-day permission engage During the course of the also moved through De- expert expertise extending medical diminish- from December 6, 1997, investigator ed and an cember the record discloses capacity defenses 28, 1997, overly assist the defense. the trial was solicitous of On October great He took engage Amalfetano’s motion to a medical Thornton’s se status. granted, necessary explain care when detail expert investigator Thornton, enter- points asked Thornton to consid- various law time, and rep- er Amalfetano to tained defense motions out of whether wanted encouraged rely him at him Thornton to gave resent trial and several He possible.10 advice much as pretrial weeks to make a decision. At a counsel’s as 14, 1997, also allowed counsel to assist hearing on November Thornton dire, voir to examine cross- to dismiss Amalfetano now moved *9 Indeed, generally appellate and bent over back- 10. who accommodation scrupulously we are certain record, reviewed the trial wards to enable Mr. Thornton to his many ways, the "[i]n concedes that propria persona.” defense patience a of and trial was model
1025 was witnesses, counsel exhibits, his waiver of introduce to concedes that examine he to never voluntary, claims but because argument and to legal motions make file of the dan- been advised specifically have behalf, by on Thornton’s all as directed himself, his waiver gers representing of Thornton, to with pre- and assist Thornton intelligent waiver knowing and was requested instructions. paring jury of that all his part on his and convictions record to ua that The trial discloses However, a be reversed. therefore must Thornton, cleverly using in addition to his the cir- totality of detailed review reminders to the repeated ingratiating was well that Thornton cumstances reveals status, during trial his se jury about him- representing of dangers aware his adeptly managed than to conduct more pro se himself self and chose pretrial He filed mo- defense. .numerous open.” Faretta v. “eyes with his Califor- tions, opening impassioned delivered an 2525, 2541, nia, 806, 835, 422 95 S.Ct. U.S. closing argument, artfully and statement (1975). 562, 582 45 L.Ed.2d various examined cross-examined witnesses, interposed trial numerous considering Thorn whether objections, evidentiary which for most was validly made ton’s waiver of justice. case, part were the trial employs two-prong sustained this Court successfully first, analysis moved trial for whether He to determine second, acquittal “voluntary”, judgment charge on waiver was in him of against breaking entering, “knowing and whether waiver was 479, Briggs, A.2d persuade telligent.” able to v. 787 later was State Chabot, (R.I.2001) 682 (citing him the State v. acquit charges 486 first-degree curiam)). (R.I.1996) assault, 1377, (per A.2d 1380 dangerous with a sexual assault house, in a weapon dwelling assault with acknowledged It generally murder, kidnapping intent and of his “good for any showing absent cause” daughter. specifically trial court-ap accept refusal “represented noted that had Thornton counsel, such refusal is functional pointed quite effectively at [himself] trial.” ly equivalent voluntary to a waiver of Additionally, we note from the record See, e.g., right to Dunn v. John counsel. was cleverly manage that Thornton able to son, (5th 302, Cir.1998), 162 307 cert. F.3d acuity his post- and handle with unusual denied, 1092, 1507, 143 526 U.S. S.Ct. proceedings. At the time sentenc- (1999); Pat v. L.Ed.2d 659 United States example, eloquent ing, quite he was (8th Cir.1998); terson, 767, 776 F.3d exercising the course of his of allocu- (2d Harris, F.2d McKee v. 930-31 tion, the perceptive argument pre- Cir.1981); Craig, 274 Mont. State hearing at a later his sented on motion (1995). P.2d Accord State equal his to that of reduce sentences was Desroches, A.2d 110 R.I. any experienced attorney. criminal defense different, (1972). case, In this three ap- here de initially capable, court-appointed Thornton contends experienced rejected by peal failing attorneys that the trial erred had been fense being dangers good without reason advise him of the of Thornton —all expressly rejection.11 He concedes for their himself se shown representing proceed pro decision him to do so. Thornton permitting before attorneys had otherwise. Three establishes The dissent contends Thornton court. Assistant Public only attorneys appointed been rejected two the assistance of assigned to Brousseau was case Defender Richard represent him at trial. The record *10 constitutionally voluntary. Accordingly, questions, tional this Court reviews such a voluntarily we believe that he novo, waived his determination de giving deference to to a fourth court-appointed counsel. findings the lower court’s of historical fact. options accepting offered to State, 1257, Simpson v. 769 A.2d 1265-66 him — previously appointed counsel, services of (R.I.2001). specifically Thornton asserts counsel, hiring private proceeding pro here that his waiver must be deemed to se with standby counsel —all met constitu- have been invalid because the trial tional muster. repeated refus- failed to inquiry conduct a Faretta and did al accept competent services of not expressly dangers advise him of the court-appointed defense counsel demon- self-representation pro- before Thornton clearly strates voluntary waiver ceeded explicit se. The “absence of and that he was not in bench warnings colloquy or a on the rec- any way unconstitutionally pro- “forced” to ord” mandates no such May- conclusion. See, e.g., ceed se. United States v. Meachum, (1st 273, nard v. 545 F.2d Padilla, (10th 952, Cir.1987). 819 F.2d Cir.1976).12 This Court recently has held
Having conceded that in a opinion, his waiver of unanimous in which the dis- voluntary, counsel was senting joined, Thornton however himself had that a asserts it was not a knowing colloquy, and Faretta preferable, while is not intelligent waiver. As with other constitu- constitutionally required. 25, represent September Thornton on We read United States v. Harlan much dif- justice permitted After the motion Brousseau ferently than does the dissent. We find noth- withdraw, appoint- William O’Connell was ing in Harlan that calls into doubt earlier its represent ed to Thornton and made his first Maynard holding colloquy that no on rec- 2, appearance on December 1996. Thornton necessary. ord is We note further that in tried to have O’Connell removed in March Harlan, colloquy about which the Circuit again August 1997 and 1997. Thornton said, dialogue "[a] one minute should agreed appointment to the matter,” have taken care of the whole id. at 8, 1997, September on and the trial date was judge being concerned whether the trial after Anthony continued. ap- Amalfetano then was Attorney informed the U.S. that the defen- pointed As noted counsel. proceeding pro dant was se because he was majority opinion, pretrial hearing at a indigent, failing erred in ask 23, 1997, pretrial hearing justice October so, indigent he was and if then whether advis- asked Thornton to consider whether he want- court-appoint- him that he was entitled to ed Amalfetano to him as trial coun- ed colloquy cry counsel. That is a far gave sel at him several weeks to appeal. what is concerned in Thornton’s hearing, make a decision. At a later on No- finally We twenty years note that in the 14, 1997, himself, despite vember Thornton decided, since Harlan was the First Circuit referring that time Attorney Amalfetano as it, never has cited to nor called into doubt “co-counsel,” being his conceded that he had Maynard’s colloquy required” holding. "no rejected the services of Amalfetano because fact, Maynard holding has been ex competent he did not think Amalfetano was pressly See United States v. La- reaffirmed. (diminished capacity "this area of the law” Bare, (1st Cir.1999); 191 F.3d United defenses). Kneeland, (1st States v. 148 F.3d Cir. 1998); Benefield, United States v. 942 F.2d
12. The dissent contends that our reliance
(1st Cir.1991);
Campbell,
United
States
upon
holding Maynard
the First Circuit’s
Cir.1989).
(1st
Meachum,
874 F.2d
845-46
(1st Cir.1976),
See also
1027 case, colloquy explicit an 416- In this In v. A.2d Spencer, State 783 justice and Thornton did (R.I.2001), the trial between 17 held: we However, jus place. not take deter- “Although simplest the method to colloquy conduct such a tice’s failure to of is mine whether a waiver counsel that the defen finding defeat a does not voluntary may or a detailed knowing be knowing was a waiver of counsel dant’s the trial court and the colloquy between other evidence intelligent when and waiver defendant, consti- inquiry such an is not clearly that conclu supports record the * * * fact, In tutionally required. the Goad, See, v. 44 e.g., sion. United States Supreme has indi- Court [United States] (7th Cir.1995); United F.3d 588-89 inquiry pragmat- that ‘must be cated the (11th Fant, 409-10 890 F.2d States stage “particular ic and directed to the Harmon, Cir.1989); N.W.2d State ’ ** * proceedings question.” of the (N.D.1997). analysis of the Our persuaded an examination We are that believe, factors, we confirms six Chabot circumstances, in totality of the of the knowingly that Thornton our conclusion light stage pro- of the particular his to coun intelligently and waived pro- at ceedings the time the waiver is of those up sel. take consideration We deter- posed, approach is the better factors. mine whether a waiver of counsel is voluntary knowing, intelligent,” Background, Experience, Defendant’s and Conduct a assessing validity the of defendant’s pretrial conduct at competence when is waiver not issue, that he recommends, hearings an demonstrates this but does understood At dangers self-representation. the one justices require, not that trial consider the Chabot, hearing pretrial hearing he told the such six A.2d factors discussed at justice: namely: attorney, your Honor. “I am not an “(1) background, experience, the the However, I do know and understand and the conduct of the defendant at the I have a basic fundamental education, his hearing, including age, his this I legal representation in forum. health; (2) physical and mental however, feel, being provid- the extent to which the defendant has time, I me this could see ed to at lawyers before prior contact with myself being myself being can see —I (3) hearing; the defendant’s knowl- the my life in putting uncomfortable proceeding of the nature the edge or a hands —in hands may potentially [ sentence that ] time, okay, counsel’s hands —at (4) question imposed; of whether I myself, then could choose represent appointed counsel has been latter, having if it means fool even she extent to which he or has aided for client.” at hearing; defendant before or hearing, Thornton At later pretrial (5) question of whether the waiver jus- pretrial hearing again related to result of counsel was the mistreatment tice: (6) coercion; question knowledge or skills not have trying to ma- “I do whether the defendant I do not myself because hearing.” nipulate the events of Chabot, good or if the indictment is (quoting understand Briggs, A.2d 1380). bad, I unfamiliar with the Rules and am A.2d Evidence, your Honor. Without the tions. The defendant also reiterated *12 * * * counsel, aid of may put I be on trial “I the court that will never concede n without a proper charge conviction, I requested attorney. that to be own my upon incompetent evidence, or otherwise be, aware, That will like I made the Court Honor, inadmissible. Your I both lack I my will be a fool for own client.” knowledge the skill and to adequately Thornton, note, to we was no newcomer prepare my I defense. need guiding procedures. criminal previ- His extensive hand of counsel every step background ous criminal demonstrated proceedings against me.” he well-acquainted that was with the crimi- Honor, I you, your “What need from justice system nal procedures, and its you assign for to I counsel so will completely importance was aware of become—so I will not become a victim See, being represented by legal counsel. prosecution.” overzealous e.g., United v. Moya-Gomez, States Thornton further to pretrial related (7th Cir.1988); F.2d State v. Wor- hearing justice that representing himself (Minn.1998); thy, 583 N.W.2d 276-77 meant having “not access to people v. Crisafi, State 128 N.J. 608 A.2d him, able to interview not having access to (1992). library,” the law quali and that he was not We note from also the record before us fied himself. Such remarks trial, just that before re- trial certainly reflect a defendant’s awareness peatedly implored Thornton to accept the of the disadvantages self-prepresentation. counsel, assistance of Amalfetano as trial See, Sandles, e.g., United States 23 F.3d intransigent, but Thornton remained ap- (7th Cir.1994); Craig, 906 P.2d parently intending to be able to later capi- Throughout pretrial proceed talize what he envisioned could be ease, ings in this Thornton made abun which, convicted, built-in if trial error dantly clear the fact that recognized could serve to his advantage.13 attorney how an great would be of assis tance to him. For example, he acknowl intelligence and clever street edged that an attorney savvy, would repeated best know references the dan- how to preserve objections appeal; gers for of self-representation, and accomplish how to change justice’s for regarding venue how observations well publicity pursuant excessive to Rule of Thornton arguments, articulated his legal the Superior Court Rules of Criminal Pro tend all to show that per- Thornton was cedure; to, prepare fectly did, and how to mo- competent and file make a know- " * * * Now, 13. The past, advised and giv- warned as in sometime I’ve defendant: you en standby the occasion to allow coun- you lawyer; competent “You not a are told me that. sel who is in criminal defense * * * you you want I to consider whether your cases to over slide and be counsel. Amalfetano, want Mr. now that he's you you Now before come me want over, case as if I slide specialist some unknown in criminal law on * * * expression can giving use I’m a defense I’m even'unaware of. Abso- reasons, you opportunity many relevant, lutely appropriate, no. Not not many just which we’ve talked about. acceptable. not you We’ll see in December you today And that, don’t have decide about se with Mr. Amalfetano do, know, you I but want an answer added.) (Emphasis counsel.” you you as to how feel about this you see 12th when I on the of November. Got it? clearly the nature understood intelligent waiver of his ton against him. He proceedings criminal during his trial. have assistance counsel’s of each the number and nature knew Extent Defendant Which count, that he considered including felonies Contact Had Previous place he did want so serious that with Counsel else’s hands. Thorn- “my life” in someone earlier, Thornton re As noted of his clearly anticipat- also aware ton jected the services of three different attor by his strategy, as evidenced insis- *13 ed neys electing before himself upon having experienced counsel tence time, rejection pro se. Each his was based defenses, diminished an indication capacity part opinion at least in on differences of of the familiarity with the nature of his In the proposed strategy.14 about trial underlying requirement specific-intent disagreements, those Thornton course of him. charges against of levied many the his appears previ have consulted with F.2d at 733. Moya-Gomez, 860 See the of case attorneys ous about nature his the In his statement trial opening in partic potential strategies, and defense his cross-examina- jury and as well alleged capacity. ular his diminished In victim, Means, clearly he Debra tion deed, rejection of Amalfetano was his only knowledge thorough his exhibited not his he predicated entirely on belief that seriousness of the appreciation the experienced needed counsel more dimin him, also charges against but various defenses, certainly ished capacity which that he had con- strategy trial chosen he indicates that must have discussed that day of jury that on the vince trial defense with Amalfetano. It is reasonable not police incident he was his standoff to assume that Thornton’s two former at self, suffering from the influence usual was torneys had also discussed with him the use, over drug and was devastated prior nature charges, of the various indictment short, child, in to visit his inability strategies, trial and trial preparation, State he that had capacity diminished defense Gethers, 369, 408, 197 Conn. 497 A.2d cleverly planned on to absolve himself of (1985), 415 legal repre the benefits of the various any responsibility criminal sentation, including dangers pro and brutal crimes for which he been Jones, ceeding se. 266 State v. indicted. 706, (Minn.1978). N.W.2d 712 These fac satisfied, justice, are as was the trial We finding tors militate favor of that totally was aware that Thornton of counsel knowing waiver was both a undertaking” of self- “magnitude of intelligent Spencer, waiver. See 783 A.2d well, and, dangers as representation at 417. himself trial. representing involved Maynard, 545 F.2d at Knowledge Defendant’s Criminal Proceedings Participation Appointment and Possible Standby
Sentences
Counsel
that Am
additionally
record also discloses
The record before us
The
alfetano,
did pro-
as
contains numerous indications
Thom-
(1985).
“absolute
provides
no
Nor
there
14. The Sixth Amendment
States v.
blindly
of one’s choice.” United
[a
"who
follow defen
to counsel
would
Peister,
658,
(10th Cir.1980),
McQueen Blackburn,
631 F.2d
dant's] instructions.”
denied,
(5th Cir.1985),
101 S.Ct.
de
449 U.S.
755 F.2d
cert.
cert.
(1981).
nied,
L.Ed.2d 113
474 U.S.
106 S.Ct.
L.Ed.2d
vide,
requested, diligent
when
request
assistance to
her
was made for tactical reasons.
See,
Bell,
Thornton throughout
e.g.,
the trial. He assist-
United States v.
901 F.2d
(7th
Cir.1990).
ed Thornton in
conducting
.the
voir
dire, with complicated procedural and evi-
clearly
record here
demonstrates
dentiary motions,
with
direct examina-
that both the pretrial hearing
tion of the defense’s medical expert wit-
Thorn-
each believed that
ness,
strategic
and with
such
decisions
ton was
attempting
delay the start of
whether to
withdraw witness from the
perfect
his trial. A
of this was
example
defense witness list. The fact that stand- Thornton’s last-minute
to be repre-
refusal
by counsel was available at all times dur-
by
sented
Amalfetano based on his belief
to advise Thornton whenever
experienced
Amalfetano
required
assistance and that Thornton
enough
defenses,
capacity
diminished
readily
used
counsel’s services
which
was followed
an about-face
supports
also
the conclusion
Thorn-
*14
Thornton when he
that if he
realized
ac-
ton’s waiver of
knowing
counsel was
and
cepted
representation
Amalfetano’s
on the
intelligent.
Spencer,
See
783
A.2d
417.
trial,
of
eve
might
maneuver
further
delay
three to six months.
Whether Defendant’s Choice Resulted
great
We accord
deference to the trial
from Mistreatment or Coercion
justice’s factual determination that Thorn-
This
analysis
factor
requests
ton’s
for new
counsel
been
whether the waiver of counsel
know
was
strategically
manipulate
motivated to
and
intelligent
and
is
on the facts be
delay
trial,
the start
his
and it is reason-
fore us relevant because Thornton has con
weigh
for us
manipulative
able
to
in-
ceded that his
voluntary
waiver was
heavily against
tent
factor
Thornton.15
not coerced. Other than Thornton’s sub
Sandies,
See, e.g.,
ton that he was
"that
if I had
convinced
today
year,
continued this
it
cunning stratagem
case
for another
16. Such a
is not unheard
See,
Harlan,
any
e.g.,
make
wouldn’t
difference. You’d be back
of.
F.2d at 6.
jury. This
hearing
he chooses
perceptive pretrial
seasoned
right.
If
the Faretta
is the core of
justices,
recognized that he
quickly
who
over
participation
counsel’s
wily
hapless
more the
fox than the
was
effectively allows
objection
pretending
be.
defendant he
substantially inter-
to make or
conclude
our de novo review of
We
tactical deci-
any significant
fere with
ample
is
the record before us
there
sions,
questioning
toor
control the
evidence in that record
establish
witnesses, or
speak
instead
voluntarily,
and intel-
knowingly,
Thornton
importance,
on
matter
right
his Sixth
ligently waived
Amendment
the Faretta
is eroded.”
contrary
to the dissent’s
“Second,
participation
contention,
finding
the rec-
specific
no
on
the defendant’s consent
counsel without
by the trial
to that effect was
ord
destroy the
should not
allowed to
Benefield,
required.
States
United
is
jury’s perception that the defendant
(1st
Cir.1991);
F.2d
United States
* * *
representing
[T]he
himself.
(1st Cir.1989).
Campbell,
F.2d
affirm the
se exists to
appear
appeal
ground
His
denied and
dignity
accused’s individual
autono-
dismissed.
*
* *
my.
perspective,
the jury’s
From
message conveyed by
the defense
II
messenger
may depend as much on the
*15
Right of
Defendant’s
Self-
From the
message
the
itself.
Representation
view,
right
point
own
of
the
defendant’s
allegation
Thornton’s
of
next
error
much
its
to
se can
of
appear
lose
notwithstanding
in this
is
appeal
that
his
lawyers
the
in the
importance
only
if
request
affirmative
for the
assistance
being
that the
courtroom know
trial,
standby
during
standby
counsel
his
McKaskle,
in lieu of Thornton’s so himself if at trial with standby participates counsel Amendment served violate his Sixth approval, partic- the such defendant’s right to counsel as outlined McKaskle subsequent a claim ipation erodes both 168, 104 Wiggins, 465 U.S. S.Ct. his that lacked control over the defendant (1984). L.Ed.2d longer ap- own and that he no defense defending himself. peared jury to the determining
In
whether stand
182-83,
at
79 L.Ed.2d
Id. at
104 S.Ct.
counsel violates
defendant’s Faretta
a
case,
at
Thornton
times
at 136.
rights,
Court must focus on “whether
requested
per-
actually
a
the defendant had fair chance to
the bench
standby
approach
mit
counsel
way.”
case in his own
Id. at
regarding
consult
79 L.Ed.2d
132. When
S.Ct.
the intro-
objections made to
defendant’s
participates in some as
counsel
of state trial exhibits.
duction
objection,
a
of a trial over
pect
two limits on the
imposes
the Faretta
(a) Sidebar Conferences
participation:
extent
counsel’s
challenges
validity
next
“First,
entitled
Thornton
se defendant is
that the trial
by asserting
his convictions
actual control over
case
preserve
justice’s ruling requiring
record,
that he be hand
criminal
which included convictions
cuffed
attending any
past
when
sidebar
crimes of violence.18
bench
Added to
that mix
per
justice’s
conferences
also was the trial
violated his
first
Sixth
hand
observations
disruptive
Amendment
right to counsel as set forth in
conduct and the sarcastic demeanor he
McKaskle.17
displayed during several of the pretrial
We examine first
the predicate facts
hearings on various motions that he or his
leading
justice’s
to the trial
ruling requir-
former
court-appointed
filed.19
ing Thornton to be handcuffed when tak-
Armed with
background
information
ing part in any sidebar bench conferences
and being cognizant of the fact that
voir dire and later at trial.
jury voir
dire
proceedings
and the trial
In doing so we
note
the trial record
would
place
take
Washington
small
fails to indicate whether in fact there had
courtroom,
County
it became the
jus
been any sidebar bench conferences that
duty
tice’s
general
to maintain
order in the
had taken place during the voir dire pro-
courtroom and
minimize any potential
ceedings.
himself,
danger to
the jury, and courtroom
The
justice,
when making what was
personnel
spectators.
This Court has
certainly
discretionary
ruling, was aware
long recognized
duty
justice,
a trial
of not only
severity
of the horrendous
Correra,
State v.
(R.I.
480 A.2d
and vicious
alleged
acts of
giving
violence
1981), and his or her “full discretion” to
rise to the pending charges against Thorn-
implement any measures reasonably nec
ton, but also Thornton’s
past
essary
extensive
safety
jurors.
ensure
of the
17. We
stops
note that McKaskle
short of es-
appoint
liking,
refused to
counsel to his
tablishing
per
se rule when it
states that
defendant informed the trial
that he
such
complains
events as
going
keep
Thornton
of here
handcuffs on
"
only
rights.
throughout
"erode” Faretta
'Erode' is not
trial even
front
* * *
Thus,
synonym
jury.
for ‘violate.’
court
cases be-
warned defendant
*16
fact-specific[J”
come
United
that this
States v. McDer-
was not defendant’s
to
decision
* * *
mott,
1448,
(10th Cir.1995).
pretrial hearing,
64 F.3d
1454
make.
At the next
defendant
that if the
stated
court
to
refused
grant
get
him a continuance and
brief,
him an-
18. As detailed in the state’s
the defen-
attorney,
request
other
every-
will
that
dant’s record
forty-two
included
criminal
understand,
thing that I don’t
I be
handed
charges lodged against him since 1981. His
dictionary,
given]
up
[and
time to look it
charges
record
larceny, uttering
featured
publishing,
possession,
and
shoplift-
cocaine
"Again the court admonished defendant:
ing,
dangerous
posses-
assault with a
weapon,
you something
"I want to tell
about the
sion of a controlled substance with intent to
you
conduct of
I
the trial that want
to think
deliver,
(both
domestic assault
misdemeanor
**
*
about
request a dictionary
You
in
felony),
and
possession
dangerous
and
aof
Courtroom,
.front of me
this
or in
or in front
weapon, among
He
others.
had been violated
and
jury
fourteen men
women in that
times,
gone
numerous
and had
to trial as well
box,
you
getting
and
not
are
it. You are not
pled.
as
going
anything, being
to do
lawyer
a non
or
whatever,
destroy
judicial process
to
the
or
19. We
examples
cite from the state's brief
delay your
going
I’m
to see
trial.
to that.”
the
obstreperous
defendant Thornton’s
2, 1997,
pretrial hearing
At the
on December
unruly pretrial hearing conduct:
trial,
immediately prior to the start of
the
"Prior to trial defendant sometimes ex-
began
hearing
by repeatedly
the
courtroom,
hibited volatile
in the
interrupting
behavior
many
the
so
court
times that the
interrupting
making
the
court
sarcastic
trial
ordered him to "follow the rules
Court,
disrespectful
or
* * *
protocol
otherwise
you
comments.
going
this
are
point,
your
At one
frustrated that the
hear
court
case downstairs in the cell block.”
the
Lerner,
92,
disrupt
court
62,
might
that
or she
112 R.I.
308 A.2d cern
he
State
(1973).
duty
permit
That
“The
of defendant
could
proceedings.
defendant to be restrained with handcuffs
than
sidebars
no broader
attend
shackles, if
required
itself,
circumstances
self-representation
which
and/or
precautions.
Hightower,
such
State
appropriate
may,
trial
within an
judge
(R.I.1995).
A.2d
discretion,
or circum-
exercise of
divest
Albauch, No. 97
McKnight v.
Civ.
scribe.”
case, although
vested
WK,
at *7
2000 WL
discretionary right
to have termi
(S.D.N.Y.
2000).
Aug.2,
self-representa
outright
nated
Thornton’s
his
tion because of
serious and obstruction
case,
justice permitted
In this
trial
appointed
to have
ist misconduct and
attorney
as
own
in all
act
Thornton to
Thornton,
counsel to
he
exception
that
respects, with
one
Faretta,
n.
sciously
fears,
rejected
contends,
that choice afforded him as he
and as the dissent
justice.
the trial
However critical of per
prejudiced
se
have
him. State
him,
the choice afforded
it was a choice Bleau,
(R.I.1994).
215,
A.2d
649
219
In-
fairly imposed
parameters
within
deed,
noted,
previously
as we
have
“one
justice,
the discretion
vested
juror who sees a
in
is
handcuffs
and this Court
lightly
should not
second- as
be
apt
compassion
filled with
as
guess
justice’s
a trial
discretion in that
juror
another
who
feel
might
the defen-
regard.
“It
too
argument
obvious for
guilt
dant’s
has been established.” State
hardly any
that
other matter can better be
348, 358,
112
Palmigiano,
R.I.
309 A.2d
relegated to the discretion of the trial
855,
(1973). Contrary
861
to the defen-
court,
court than that of safeguarding the
contentions,
dant’s
it
was
burden
counsel, jury, and spectators,
assuring
prove
he
prejudiced
that
was
in his ab-
presence
the continued
and attendance of
conferences,
sence from sidebar
and he
at
accused
the trial.” McDonald v.
failed to do so on the record before us. Id.
States,
(8th
128,
United
89 F.2d
136
Cir.
358,
The mere fact that the
contends that
refused
at
would have
not,
observed Thornton in
would
bench
in
handcuffs
conferences
handcuffs because
se, and
acting
Thorn-
Thornton’s
by
jury
handcuffed
the
would about
being seen
before the
repeated
own
references
ton’s
him.21
prejudice
all demonstrate
his
se status
jury
to
Thornton,
at all times
appears,
it
was
from
conferences
that his
sidebar
absence
the
participate
attend and
at
permitted to
he
jury
that
the
to conclude
did not cause
so,
chosen
do
bench conferences
he
to
See, e.g.,
in
of his defense.
not
control
was
in
appearance
and his
handcuffs would
186-87,
McKaskle,
at
at
S.Ct.
465 U.S.
justice
have
trial
permitted
then
the
188-39;
955-56,
United
79 L.Ed.2d at
cautionary
jury
a
instruction to the
give
McDermott,
64 F.3d
1453-
States
jurors
the
their
and to obtain from
assur-
(10th Cir.1995); Mills,
raised
is therefore
and is
bench
sidebar
no error
properly
ruling.
now
before us.
v. Haz-
from
State
resulted
his so
ard,
(R.I.2001).
1111,
785 A.2d
We
(b) Chambers Conferences
note, however, that given the trial testimo-
Means,
ny of
jus-
Debra
first trial We next consider whether the trial
state’s
witness,
Thornton,
permit
and Thornton’s own admission to tice’s refusal to
aas
de-
jurors
in his opening
pro
participate
statement
fendant and
se
conferences,
closing
and later in his
argument
he
six chambers
violated his
committed
process right
indeed
two of the vicious Fourteenth Amendment due
present
felonious
later
every stage
trial,22
assaults
which he
to be
at
of his
convicted,
appears
it
unlikely
jury
right
by
that the
or his
to do so
our
provided
Rule
him any
dangerous
Superior
would have found
43 of the
Rules of
more
Court
Criminal
simply
because
his absence
sidebar Procedure.23
from
We examine his Fourteenth
We
process right
conferences.
also note that
the Amendment due
and his
trial, only
right
present
bench
occurred
to be
enunciated in
conferences
our
four
and that
are
previous
all
noted in the
tran- Rule 43 in the
our
light of
hold-
Mills,
scripts
ings.
as “off the record.” In
which a
prohib-
had been
Souza,
893,
In State v.
425 A.2d
901-02
ited from
participating
sidebar bench
(R.I.),
denied,
cert.
454 U.S.
102 S.Ct.
conferences,
apparently
“the
few instances
(1981),
Amendment himself as (1934). 78 L.Ed. To Mills, pro se counsel. See F.2d at 905. the extent that Rule 43 of the Superior We that the conclude did not Rules Court of Criminal Procedure abuse his discretion in the defen- requiring grants presence broader than Amendment, dant attending any to be handcuffed when it does Fourteenth too agree adversary system We do not with the basic to dissent’s conten- are our of crimi- only justice, they part process tion defendant's Sixth Amend- nal are of the ’due rights guaranteed by ment are relevant law' that in our consideration Fourteenth appeal. Although repre- of this Amendment to defendants criminal clearly impli- California, sent himself as se counsel courts of the States.” Faretta v. considerations, 806, 818, 2525, 2532, cates Sixth Amendment 422 U.S. S.Ct. trial, (1975). still remained defendant in the and as L.Ed.2d such, process his Fourteenth Amendment due provides pertinent part: 23. Rule 43 rights implicated along were also with the rights him 43 of the afforded our Rule present at “The defendant shall be the ar- Superior Rules of Court Criminal Procedure. raignment imposition and at the of sen- Faretta, Supreme clearly noted tence, provided except as otherwise that: rules. shall be these The defendant trial, every stage including "The Sixth Amendment includes com- of the pact rights necessary impaneling to a of the return of the statement * * * * rights full verdict* *.” defense!.] Because these
1037
constitut-
anything
counsel
standby
to
dant’s
guarantees
opposed
substantial as
that
importance
place
took
a matter of
shadowy
rights
pres
or theoretical
or
guilt
innocence
a
or
require
The rule does not
that
affected Thornton’s
ence.
the
against
to
present
ability
a
at
defend
right
has
to be
affected his
‘defendant
him.
against
impaneling
charges
all occurrences after the
made
only
occurrences
the
to those
—but
of the record discloses
Our review
the
or innocence of
guilt
that concern
conferences
that at each of
chambers
to
ability
or affect his
defend
and Thorn
prosecutor
in which the state’s
charges’
in the case.
against
State
nothing
participated,
ton’s
(R.I.
LaChappelle,
hearing any had in way been by thwarted sixth chambers conference oc Thornton’s absence from that chambers curred during trial, the trial. During one conference. jurors of the trial had notified the trial
The fifth chambers conference justice through the courtroom’s sheriff justice’s concerned the trial intention to that he suddenly had realized after listen excuse a prospective juror, who during ing to testimony Stewart, of Dr. voir dire questioning by the trial justice, defense expert, medical that he was some justice informed the trial that he did how acquainted with Dr. Stewart. The not believe that he could impartial be an trial then questioned juror juror in light of the nature of the pending chambers with the state’s prosecutor and charges against the defendant. Certainly, standby present, counsel they also Thornton was not in any way prejudiced were permitted to thoroughly question the by justice’s the trial decision to excuse that juror. All parties present completely were juror unless he wants us to believe now juror satisfied that the could remain im preferred he would have to have an partial. The trial determined that admittedly partial juror, biased and who juror, despite his knowledge limited had concluded guilt tri before Stewart, Dr. remained unbiased im al, to remain prospective juror. as a partial permitted him to remain on the
It also should be
jury.
noted that it was
Thornton immediately was advised
during the jury voir dire conducted per
of what had transpired at the chambers
24. We have not overlooked
prospective
Thornton’s con-
jurors,
allows a
tention that
the trial
erred in not
defendant or counsel for the defendant and
granting
pretrial
motion for an individual
prosecutor
supplement
the state
the voir
prospective
voir dire of
jury panel.
Suf-
dire
inquiry.
examination
further
fice it
nothing
for us to note that there is
case,
In
justice opted
per-
.this
Superior
Rule 24 of the
Court Rules of Crimi-
sonally conduct
opting,
the voir dire. In so
§
nal Procedure nor in G.L.1956 9-10-14 that
specifically
parties
informed the
"that I will
specifically permits
provides
for an individ-
questions
jury
ask
that are called to the
dire, although
ual voir
particular
in a
instance
box,
permit
and I
Lynch,
will
Ms.
Mr. Thorn-
might
which such a voir dire
avoid
ton
to make further
and/or
possible disqualification
prospec-
of an entire
added.) Thus,
inquiry.”
(Emphasis
at no
jury panel,
tive
may
an individual voir dire
time
prevented
par-
was the defendant
See,
permitted by
justice.
e.g.,
State
ticipating
proceedings.
voir dire
Massey,
(1978).
119 R.I.
justice’s juror permitting decision *22 jury.
remain on the Even if Thornton had Ill jus- objected disagreed and with the trial of Evidence Exclusion decision, juror tice’s of exclusion a trial left to the possible bias is sound discretion endeavoring to his diminish- In buttress Hazard, justice. of the trial 785 A.2d at defense, attempted ed Thornton capacity McDowell, (citing State A.2d at trial that he was so influ- to establish (R.I.1996)). 252, 255 and prior enced his use of cocaine on alcohol that he was unable June are no We satisfied there was abuse necessary to specific form the intent justice of discretion on the trial part to him of the crimes specific-intent convict juror in permitting the to remain charged. vainly for which had been He jury panel. We also are satisfied that attempted during his cross-examination of Thornton’s exclusion from the six cham- the state’s witnesses to elicit them bers conferences did interfere with his alleged capacity evidence of his diminished his pro Sixth Amendment to control that his behavior on June defense, demonstrate nor did his “thwart” absence or being “high” was with his consistent adversely affect his ability defend only and returned to coherent that he against charges against various made drugs state the effects and alcohol after him in the indictment. had He called as a de- dissipated. also (c) Restrictions on Movement Capt. Browning fense witness Glenn Narragansett police department, who wit- Nothing suggests in the trial any record trial re- nessed the standoff. The placed form limitation that had been fused, however, lay any to allow witnesses upon ability address speculate type about of mindset that jury opening and closing statements or or could have caused Thornton’s behavior approach question any of the trial his mindset could have when and whether purposes conducting witnesses for direct changed during assaulting the time he was or or cross-examination show them ex- holding hostage. Debra her record, As hibits. a matter of Thornton was not handcuffed the trial while during trial, sought Thornton himself Before presence jury. of the trial police limit number of officers who record, hand, to testify pros- on the would for the permitted other discloses ecution, openly obligingly pared the state requested standby Thornton During repeated counsel’s assistance on occasions. initial witness list. down its case, Thus, extensively there is a total absence the record the state’s Thornton any Sgt. Joseph (Sgt. Little showing evidence that Thornton cross-examined Little), who, along with Denise Ow- impermissibly was somehow restrained Officer (Officer Owens), negotiator ens served as while court- during Dur- claim that the standoff. support room his with Thornton standoff, Sgt. Little ing in the court- the course of movements See, con- engaged approximately forty e.g., room were restricted. Cronan ex Cronan, an through 878-79 versations with Thornton rel. State v. A.2d (R.I.2001). by telephone. Offi- apartment that Thornton window and We conclude scene, Owens, at the cer who later arrived fails to material interference show case, assumed the role of negotiator, lead but did Sgt. she and Little jointly through- acted in excluding not abuse his discretion Offi equal opportu- out the standoff. Both had testimony grounds cer Owens’s on the nity to observe Thornton’s behavior. it would have been cumulative. The trial prosecutor many noted that
Thornton
attempted to call Officer
later
concerning
other witnesses had testified
witness,
Owens as a defense
explaining
behavior,
Thornton’s demeanor and
includ
police negotiator
that as the
dur-
primary
Debra,
standoff,
ing
spent
who
the fourteen-hour
she had “more time to
develop
opinion”
hostage,
Sgt.
[an]
of Thornton’s condi- ordeal as Thornton’s
Lit
*23
tle,
tion than other police witnesses. The
thirty
who arrived at the scene
min
objected
Sgt.
state
based on
Little’s testi-
utes before Officer Owens and
who
mony that he and Officer Owens had been
Thornton,
negotiated
along
later
with
together the entire time and had worked
Owens, throughout
Officer
the standoff.
jointly;
testimony
that Officer Owens’s
Thornton
proof
sug
made no offer of
cumulative;
simply
be
would
and that Offi-
gest
testimony
that Officer Owens’s
would
cer Owens should
permitted
not be
to offer
anything materially
have added
new or
lay opinion
as to Thornton’s state of
capaci
different to assist
his diminished
mind. The trial
agreed, finding the
ty
request
defense nor did he
to voir dire
cumulative,
proposed testimony
and her
jury’s presence.
Officer Owens outside the
inadmissible,
lay opinion
and therefore
a proffer
description
Without
or other
objection..
sustained
state’s
expected
pro
about the
substance of the
Both the United States and Rhode
posed testimony,
justice’s
decision
guarantee
Island Constitutions
a criminal
reject
as a
cannot
Officer Owens
witness
defendant the
to confront and cross-
faulted,
Cote,
State v.
691 A.2d
examine
adverse witnesses and to
(R.I.1997),
541-42
and this
is unable
defense evidence. U.S. Const. Amends.
to conclude
abuse of discretion result
Const,
VI, XIV;
R.I.
art.
sec. 10. How
Hazard,
justice’s ruling.
from the trial
ever, a defendant has “no constitutional
Also,
(citing
Jurczyk,
A.2d
Frias
elicited
that the trial evidence
noteWe
(R.I.1993)).
to discredit
completely served
from Debra
He
testimony of Dr.
opinion
trial record
Stewart.
Thornton misconceives the
violent behav-
by
had testified that Thornton’s
arguing
allegations
prior
of his
bad
and resulted from
testi-
ior was an aberration
acts did not occur until Dr. Stewart’s
alcohol, cocaine,
fact,
lack of
mony.
it
himself
amounts of
large
was Thornton
food,
previ-
of a
and the effects
opened
sleep
to the admission of
who
door
cross-examination,
injury. On
prior
through
bad acts
ous head
evidence
Debra, when,
readily conceded that he
sup-
Dr.
cross-examination of
Stewart
404(b)
question,
hypothetical
facts or
based
of the Rhode Island Rules of
be
26. Rule
provides:
expert
Evidence
"Evidence of other
or before the
perceived
data
crimes, wrongs, or acts is not admissible to
hearing,
evidence.
If of
or facts or data in
prove
person
in order to
the character of
customarily
upon
reasonably
relied
type
person
conformity
acted in
show that
forming
experts
particular field
however,
may,
be admissible
therewith.
It
underlying
upon
subject, the
opinions
motive,
proof
purposes,
for other
such
testi-
admissible without
data shall be
facts or
intent, preparation, plan, knowl-
opportunity,
primary
mony
source.”
accident,
edge, identity,
or
absence of mistake
directs
the court
provides: "Unless
Rule
prove
feared imminent
or to
that defendant
otherwise,
opin-
testifying
in terms
before
bodily
the fear was reason-
harm
ion,
first examined
expert witness shall be
an
able.”
upon which the
concerning
or data
the facts
Rules of
of the Rhode Island
27. Rule 703
opinion is based.”
expert’s opinion may
provides: "An
Evidence
exclusively
relied
on what Thornton had
(Colo.Ct.App.1989) (allowing under Rule
told him in two short interviews to form 705 the prosecutor to use the defendant’s
expert
opinion about the cause of his
prior bad acts to
expert
cross-examine the
violent behavior toward Debra on
day
concerning
opinion),
the basis of his
rev’d
of the incident.
(Colo.
grounds,
on other
1043
jury would have suffi
unlikely that
features of the ex-
important
the more
bad conduct
ciently
upon
prior
A.2d at 289.
relied
testimony. Rogers, 488
pert’s
had a
that Thornton
to conclude
evidence
Notwithstanding
prior
that Thornton’s
crimes with
to commit
propensity
under
properly
bad acts were
admissible
v.
charged. United States
which he was
404(b),
than Rule
Rules 703 and 705 rather
(D.C.Cir.
Bradshaw,
n. 2
F.2d
that
longstanding
reiterate our
rule
we
1991); Rogers,
had been
diminished
manipulate
our Rules of Evi
defendants
alcohol,
use of cocaine and
and other fac
jury through
“testify”
dence and to
to the
tors,
was,
effect,
a concession of his
credible,
another, often more
lips
practical responsibility,
culpa
rather than
thereby
avoid cross-examina
witness
Barrett,
bility.
768 A.2d
See State
Bustamante,
756 A.2d
tion. State v.
(R.I.2001); Correra,
justice’s discretion.” State peatedly upon dining inflicted Debra (R.I.2001) A.2d (quoting State v. standoff, long de- aptly which Crescenzo, 242, 263, 114 R.I. 332 A.2d being scribed as “intolerable.” (1975)). considering note also that in Thorn- We sentence, a trial ton’s his sentences the imposing motion reduce factors, justice may justice in took into consideration Thorn- consider numerous crime; cluding severity of the the de criminal record and his du- ton’s extensive educational, personal, potential fendant’s and em bious rehabilitation that background; a lack of commitment to ployment the defendant’s “demonstrated rehabilitation; ca- potential for societal deter- rehabilitation and the inclination and ap- affirmed. His an honest and dation of a witness are pacity place to take [his] justice’s deny- decision peal from the society.” finally He useful member to reduce sentence is denied im- his motion hope stressed his that the sentences in this case papers and dismissed. The posed committing deter others from would Superior to the Court. are remanded message similar crimes and send a would might to others who be inclined to do so did not Chief Justice WILLIAMS
that domestic violence and abuse would participate. long not be tolerated and would invoke doing
sentences for those convicted of so. FLANDERS, Justice, dissenting. We discern also no error or abuse of respectfully I dissent from the Court’s part justice discretion on the of the trial opinion. Superior I that the believe board, concluding parole rather violated this se defendant’s Sixth court, than quality should assess the rights specific ways. Amendment three Thornton’s claimed rehabilitation. See First, precedent both state and federal Mollicone, 138; A.2d State required Superior Court to conduct Flores, (R.I.1994) 637 A.2d (per type of a Faretta31 with inquiry least some curiam). indigent this defendant after it allowed his Finally, regard to Thornton’s mo withdraw, an- attorney appointed first sentence, tion to reduce we see that him, attorney other and told hearing alleged thereon he stressed his him it would not entertain a similar motion remorse for his good prison actions and his attorney to remove his second if he could justice conduct. The trial de apparently get along lawyer. with that This er- tears, tected no salt in Thornton’s nor do ror —which resulted in the defendant’s we, and as to being Thornton’s claim of representing against capital himself at trial prisoner, model simply we remind him that felony harm- charges- be rendered —cannot entirely a fact is to a “[s]uch irrelevant by seizing upon unrepresented less reexamination of impo the reasons for the using defendant’s later admissions and sition of place” sentence the first be that, notwithstanding them conclude expect nothing good cause “we less than failing court’s error in to undertake a Far- behavior as a minimum from inmates of inquiry, etta he must deemed to have our correctional Up institutions.” State v. knowingly intelligently waived his ham, (R.I.1982). 439 A.2d Second, the trial right to counsel. constitutionally violated the defendant’s nothing
We observe
in the record before
juror
voir
protected
participate
support
us to
Thornton’s contentions
dire, including
during which the
sidebars
the trial
abused
discretion in
dire,
juror voir
court conducted individual
denying Thornton’s Rule 35 motion to re-
being
him
by effectively precluding
duce his sentences.
this voir dire occurred.
when
Conclusion
Third,
violated the defen-
stated,
rights
For the reasons
Thorn-
dant’s
Amendment
when he
above
Sixth
participating
are
him from
in various
appeals
ton’s
denied and dismissed. barred
*28
that oc-
His
for
substantive chambers conferences
judgments
conviction
two counts
assault,
my judg-
felony
throughout
of a
curred
the trial.
domestic
violation
ment,
order,
significant
kidnapping,
no-contact
and intimi-
errors constituted
these
2525,
(1975).
California,
31. Faretta v.
422 U.S.
95 S.Ct.
I I you am also to tell that am not going Right Denial of the to Counsel going again.” a similar motion entertain replied: attorney The “the next defendant trial, repeatedly Before defendant ex- I basically that I am receive is stuck pressed Superior displea- to the Court his really don’t with—I don’t know—I under- first Af- appointed sure with his counsel.32 reconciliation, attempts you saying.” ter stand are (Emphasis several what majority Although the not since I [him] states that defendant been able to see that time specific regard- spoke releasing "failed to outline his up concerns that about him time appointed representa- first [his counsel's] say forty-eight ago. until would and I hours tion,” hearing justice defendant did advise the Okay? able Also I am never been to contact on October 1996 as follows: try you us to it out. [him] since told work just getting properly "I don't feel I am me, keep To me [he] has failed abreast represented on certain issues of contacts developments of this case and has not him, try speak when I called made aware of that me defenses interest, I lack of when for certain asked [c]ourt. would be offered before the Anoth- requested things through the Courts problem ongoing er is that there is an dif- that I have to have him as to motions asked opinion between me ference of and [him]. okay? put Things in for me. I asked Also— attorney/client It affected the relation- has granted that has not been him for as far as ship that and the amount of trust I have for me, okay? representing previ- And also the [him].” contacts, he aware I ous tried to remove Finally, majority that at states this sub- see, I him before but tried see if I could— 25, 1996, sequent hearing on November just work that out and I come to the conclu- hearing justice ap- that “sens[ed] [defendant] my not it is not'—it is best interest sion peared a course to have initiated intended to type magnitude under this that I am delay hearing justice, his trial.” The howev- going get prop- I am under —I don't feel er, finding, nor made no such statement erly represented.” opinion. did she held this she intimate that though, majority And even as con- though majority may And even "sense” clever, cludes, may defendant have been engaged delaying that tactics guileful person ap- who dismissed his first appointed when he dismissed his first attor- pointed counsel for no other than to reason ney, support I can find no record trial, hearing justice delay his made no proposition hearing justice that the shared finding possessed that defendant an such such attorney. this view she excused this when intent, nor did she rule that com- defendant's speculation majority its about furthers appointed attorney, though plaints about his hearing justice’s "sense" when it states vague, meritless. The were motion suspicion “[djespite continued [of her hearing, at the first "I need told defendant (emphasis delaying add- tactics]” defendant's problem specifically your You are what is. ed) appointed second she excused defendant’s all,” being specific and asked him sure, Sep- attorney. hearing at the To be on with his address whatever concerns he had tember some nine months after she attorney. hearing At appointed later first appointed attorney, excused defendant’s first appointed the removal of defendant’s first hearing justice at- stated November defen- held on tempt appointed lawyer second to remove his explained specifically his reasons for dant "on the triál” was not a "coincidence.” Thus, eve of wishing attorney. to remove suspicion” attributing But a "continued to the stated: hearing relating back to defendant’s time "I would like at this to ask the * * * appointed attorney motion his first my attorney my to dismiss Public to dismiss following enjoys support record. I have no for the reasons. Defender *29 added.) ready Monday go to forward to to be on explaining Without order, case, you represent can significance with the or of her which defen- (Emphasis at trial.” add- yourself dant to mean that “the next understood ed.) basically receive is 1 am attorney [I] that with,” justice stuck the motion continued that he was The defendant then stated court appoint matter until the could himself, and incapable handling the case for replacement counsel defendant. It is following exchange occurred: at this that point applicable United States gowill forward to you “COURT: And Supreme required precedent trial next week. hearing justice engage to a Fcvretta “DEFENDANT: How? inquiry with the defendant.33 you you can do whatever “COURT: And eventually court Although appointed yourself. want to do to assist him, attorney represent a second defen- trial between “DEFENDANT: On now problems dant experienced also with this then? what I’m sup- I don’t know attorney second that similar were to those do, posed to Honor.” Your reported having
he his first appoint- with professed Notwithstanding defendant’s Ultimately, ed a lawyer. defendant filed n events, turn of bewilderment at this disciplinary complaint against the second attorney court allowed defendant’s second appointed attorney, thereby creating to withdraw from the case and ordered conflict prevented of interest that at- this represent- proceed defendant to to trial torney continuing as his A counsel. (that is, attorney ing himself as his own few days before defendant’s tri- scheduled se). justice, was not The trial who al, removing hearing pretrial these same who handled second attorney, the motion stated matters, appoint point refused at that as follows: defendant, stating “[y]our new counsel for you “I previously allowed to release se, these, [y]ou appear pro choices are as [your lawyer] attorney as first connec- The court you you indicated would do. you tion with case. And if this recall you, backup will consider counsel when I did and made the court you your [your make with second peace appointment I [your lawyer], second lawyer].”34 proceeded The court then you your told that would last couH repre- trial with the defendant ordered * * * So, appointed lawyer. effect, I se, himself albeit with sent have your options. lowered The trial is appointed by the court.35 established as a date certain for [next] Monday go rights will forward as Because the enumerated scheduled. your lawyer
You
fundamental to the
privately
can hire
own
Sixth Amendment are
directly
along
attorneys
majority
respond
33. The
does not
with the two
motion
assertion,
long exposition
but includes
appointed
had
him.
of defendant’s later statements after the court
upon
imposed pro
se status
him because
35.Although
majority
that defen-
asserts
along
get
he
was unable to
his second
services
dant refused his
counsel’s
appointed lawyer.
intending
"apparently
to be able
trial counsel
capitalize
to later
on what he envisioned
record, however,
It
from the
is clear
which,
be a
error
if con-
could
built in trial
rep-
defendant did not indicate that would
trial,
victed,
request
advantage,”
nor did he ever
resent himself
could
to his
serve
so; rather,
essentially
do
the court
forced
finding.
justice made no such
get
inability
of his
him to do so because
*30
” Faretta, 422
eyes open.’
U.S.
justice, they made with
system of criminal
adversarial
2541,
835,
that is
at
appointed
and after he refused to
ruled,
persuaded that an
are
“[w]e
accept
ap-
the services of
counsel
totality
of the circum
examination of
court,
pointed by the
he must be deemed
stances,
particular stage
light
voluntarily
to have
waived his
is
at the time the waiver
proceedings
approach
counsel.
is so
court
the better
to deter
pro-
proposed,
This
because the
is know
mine whether waiver
counsel
vided defendant with two different court-
Id. at 417.
voluntary
intelligent.”
ing,
attorneys,
him that this
appointed
told
sec-
attorney
ond
would
one the
be the last
majority argue that an
The state and the
him,
offered,
appoint
court would
totality
of the circum-
examination of
refused,
though
defendant
to have
case,
in Spencer,
in this
as
satisfies
stances
represent
him at trial. The Faret-
prong
second
of the Faretta waiver
however,
analysis,
ta
not end with an
does
sure, the record shows
analysis. To be
inquiry into the voluntariness of the defen-
that,
made his “choice”
after defendant
dant’s conduct that resulted
his or her
law-
court-appointed
“last
disqualify his
(the
status;
rather,
the trial court still
appreciate
yer,” may
have come
pitfalls
defendant know-
way)
must determine whether
at least some of
hard
himself
Significant-
at trial.
intelligently
waived his
ingly
representing
however,
this evidence arose
disqualify ly,
steps
counsel before he took
after
‘magnitude
totally aware of the
majority
rejection
Thornton was
37. The
refers to defendant’s
fact,
and,
appointed attorneys.
undertaking’
self-representation
of three court
only appointed
attorneys
well,
court
two
dangers
representing
involved in
represent
The defendant
defendant.
trial,”
locate where in the
I cannot
refused
himself
appointment
standby counsel as his
of his
transcript
so stated
though
majority
And even
trial counsel.
findings.
such
made
was satisfied "that
asserts that the
Here, however,
court
options” by
pitfalls-of-self-
“lowered
no such
[defendant’s]
representation colloquy occurred between
telling
appoint
him it would not
another
motion, justice.
and the
And
him if
attorney
he was unable
though Spencer
applicabil-
even
limited the
get along
appointed
with his second
ity
potential
of Chabot to defendants with
attorney.
Importantly, the Court’s conclu
mental problems, and concluded that “a
in Spencer
upon
colloquy
sion
relied
colloquy
detailed
between the
court
between the trial
and the defendant
*32
* * *
and the defendant
is not constitu-
granted
the court
the defendant’s
before
tionally required,” Spencer, 783 A.2d at
request
It
proceed pro se.
did not
added),
(emphasis
416
it is still evident
address a situation like this one in which
that
type
inquiry
some
of
communica-
requires
pro
the court
the defendant tion between the court and defendant is
pro
inability
get
ceed
se because of his
required to ascertain whether defendant is
along
accept
ap
with or
the services of
dangers
disadvantages
of
and
aware
“the
pointed
Spencer,
counsel. And in
unlike
self-representation,”
of
before defendant
case,
this
that
Court was “satisfied
leading
pro
representa-
sets a course
se
justice engaged
pragmatic inqui
in a
Faretta,
835,
tion.
422
at
U.S.
95 S.Ct. at
ry
satisfy
sufficient to
himself that defen
2541,
at
45 L.Ed.2d
581-82. Furthermore
dant’s waiver of counsel was made Svith
inquiry
this
or communication “must suffi-
eyes open.’” Spencer,
should like a plete inquiry lack of a Faretta conclu- “is sponge up wipe away to soak requires sive and automatic reversal of in failing court’s errors ascertain conviction”). defendant’s It is at this criti- record appreciated whether defendant stage proceeding cal —before significant downside representing risks of defendant has opted discharge his “last” himself at trial. appointed attorney inquiry a Faretta —that
Here, protect would best pretrial motion should defendant’s Sixth short, have conducted a af Faretta-type inquiry rights. Amendment the court attorney ter she released first needs to warn a defendant about the disad- case, from the him warned that the vantages se status or she before court not appoint attorney would another may impact takes action that have an him get if he along could upon his or her constitutional attorney. point with his second At that counsel.
the motion
should have informed
case,
In this
the court never warned
inadvisability
proceed
defendant of the
potential
defendant of the
adverse conse-
se,
ing pro
pitfalls
and of the other
quences to him of having
try
his own
might accompany such a decision on his
case
steps
disqual-
before he took
Padilla,
part.
819 F.2d at
(suggesting
ify
appointed attorney. Any
his “last”
in-
that a trial
must conduct a Faretta
*34
quiry or communication with defendant
inquiry before defendant has fired or re
that
point
occurred after this
would have
counsel);
appointed
fused
Ar
People v.
been too little and too late to warn him
(Colo.1989) (en
87,
guello, 772 P.2d
97
pitfalls
self-representation
about the
be-
banc) (holding
reviewing
“before a
court
cause, having begun the trial as his own
implied
can find a valid
waiver based on
attorney
conduct,
refusing
appoint
with the court
ample, unequivocal
there must be
(save
attorney
another
for him
for
evidence
the record that the defendant
counsel),
longer
defendant was no
in a
properly
was advised
advance of the
actions”).
consequences
position
warnings.
of his
to act on such
In
See also
Mohawk,
1480, event,
v.
United States
20 F.3d
no such communication occurred.
“*
*
See, e.g.,
open.’
determining
waiver of counsel.
United States v.
In
whether there
838,
(1st Cir.1989)
Campbell,
competent
right
874 F.2d
845
is
waiver of the
to coun-
sel,
(stating
judge,
investigate
long
that the First Circuit "has not inter-
'must
as
preted
thoroughly
these decisions to mean that the dis-
as the
circumstances of
* * *
particular warning
trict court must issue a
or
case before him
We are
demand.’
'[cjourts
specific findings
guided by
principle
malee
before it allows
must
of fact
se,”)
proceed pro
(quoting
indulge
every
presumption
the defendant to
reasonable
"
(1st
Hafen,
against
right
v.
726 F.2d
United States
25
waiver of the
to counsel.’
Cir.1984)).
added.)
Indeed,
added.)
(Emphasis
(Emphasis
Id. at *11.
recently
opinion
pro-
First Circuit
issued
which
Given the First
recent
an
Circuit's most
issue,
undeniably
majority's
contradicts the
claim
nouncement on the
I do not believe that
requires
inquiry
majority’s no-colloquy-required position
no
First Circuit
Although
support
whatsoever
the trial court.
United
can
a waiver of counsel.
it
Woodard,
(1st Cir.2002)
requires
States v.
1053
found that such
Therefore,
believe,
situation- have
comply
appli
precise
I
with
this
antics,
frustrating to
Supreme
prece
dilatory
Court
while
cable United States
dent,
type
a trial court must conduct some
dispensing
are no excuse for
judge,
inquiry
of a Faretta
connection
As the
inquiry.
with a Faretta
Iowa Su-
—in
evaluating
totality
“the
of the circum
observed,
sympa-
we
preme
“[w]hile
stances”—to assure itself that the defen
exasperation
thize with the frustration and
potential negative
dant
is aware of the
court,
of the district
‘even well-founded
aspects
representing
himself or herself
delay
suspicions
manipu-
of intentional
allowing
forcing
for
provide
lative tactics can
no substitute
before
Mohawk,
proceed pro se. See
20 F.3d at
inquiries necessary
protect
a defen-
”
(quoting
Aponte,
United States v.
591
rights.’
dant’s constitutional
State v.
(9th
Cir.1978),
F.2d
man
“[t]he
(Iowa 2000)
Martin,
N.W.2d
ner in which a defendant
his de
conducts
Fulcomer,
821 F.2d
(quoting McMahon
fense cannot establish his state of mind at
(3d Cir.1987)).
See also State
opted
self-representation”).
the time he
(Fla.1993) (hold-
Young, 626
So.2d
relatively knowledgeable
Even
defendants
although judges may presume
given
should be
some kind of a Faretta-
may
that abuses of the
type inquiry
involuntarily
before the court
se,
request
proceed pro
constitute a
thrusts
se status upon them. See Mo
must
with a
presumption
be confirmed
(reversal
hawk,
even defendant had edu cation, experience justice with criminal II system, job” handling and did “reasonable Refusing Defen- Allow the Pro Se case). his own Participate in Juror Voir dant suggested It also has been that defen- Dire Sidebar Conferences deftly ability dant used his to dismiss his repre- requiring defendant attorneys delaying Besides court-appointed as making at trial without sure tactic. But courts have addressed sent himself that he was dangers self-repre- they impar- aware that cannot serve as fair and sentation, prohibited jurors.” respect the trial tial latter also With ordered, defendant in participating pretrial group, they the trial “will during sidebar conferences which the court be allowed to come to side bar with Ms. jurors: Lynch prosecutor] conducted voir dire of individual standby [the coun- added.) Thus, (Emphasis appears sel.” it questions “I jury will ask that are that, concedes, to me as the state box, permit called to the and I will Ms. justice flatly at- barred defendant from Thornton,
Lynch prosecutor], Mr. [the tending the purpose jury sidebars for counsel, standby to make further and/or him voir dire but allowed to attend other inquiry. Those who wish to see the only if sidebars he wore handcuffs. This [cjourt at side bar because disclo- conclusion, submit, I is bolstered sures, or they they because feel justice’s further statement to defen- cannot impartial ju- serve as fair why about dant his exclusion from the rors, mil be allowed to come to bar side prejudice voir-dire sidebars would not Lynch standby with Ms. counsel.” him: added.) (Emphasis why, you “And that’s rather than have
Both acknowledge defendant and state cuffs And because Mr. Amalfeta- [sic ]. effectively excluded counsel, your standby perfect- no is he’s defendant from participating these voir- ly willing as he’s Thus, state, dire sidebars.41 the' its already you assisted in the rest of these Court, brief to this states that: memoranda, motions and to indicate pretrial “At hearing on December * * * there, going protect your what’s 2, 1997, court then [t]he advised interests, reporting you. back to Of although defendant as course, Thornton, just un- you’ll Mr. so well as would able to during the sidebar voir derstand jurors question during voir dire as a process, during dire selection group, individual voir dire at you it to if process, what is the Court only standby side bar counsel and the out excuses someone of our collective prosecutor permitted partic- would be person decision if that cannot be fair and added.) ipate.” (Emphasis impartial you? you being How are exclusion, In acknowledging this both sides prejudiced anyway?” justice’s above-quoted refer to the trial *36 event, ruling justice if distinguishing procedure the for even the trial had jurors absolutely questioning potential “that are not excluded defendant from sidebars, [jurors] called to the box” from voir-dire defendant would have “[t]hose who wish to the at with the [c]ourt see side bar faced Hobson’s choice been disclosures, all,42 handcuffs, they attending because of or because feel them in or not at Thus, argued respectfully disagree sugges- 41. The record shows that defendant with the I forcibly by participation in tion that this issue fail- for individual waived sidebars, ing point preserved to it at well in the record. raise trial. argued appeal. He also has this issue to us on Moreover, objection standby Notably, to defendant's defendant filed motion in limine learning participating seeking prevent jury in voir-dire sidebars was to incarceration, primarily based which the trial on his concern over how Therefore, encounters, jury might perceive granted. requiring these but defendant to jury par- approach rather on his Sixth Amendment sidebar conferences to conduct ticipate proceedings. only personally in voir dire after armed' courtroom officials such counsel, willing as following exchange perfectly he’s as revealed in already you the court: assisted most occurred between defendant and as he’s memoranda, to indi- these motions and Also, too, I spoke “DEFENDANT: there, protect going cate what’s on counsel, counsel, advisory in re- interests, reporting back your bars, you I gard having side you. aware, made him and I’ll make the aware, that I [sic]
Courts since am Thornton, just course Mr. so “Of counsel, stage my lead not at own during you’ll understand side bar will, free but I would like participate jury process, the voir dire anything any any conversation you if the process, selection what is it to — that is addressed in this Court for these excuses someone out of our collec- alleged charges, anything and also that’s person if that cannot fair tive decision said at side bar. impartial you? you How are Well, you participat- “COURT: will be any way? being prejudiced Mr. [standby because Amalfetano I “DEFENDANT: don’t know. You providing you will be with what counsel] know, all, again, once I’m a blind first goes on at side bar. walking. going man I don’t know what’s “DEFENDANT: He made me aware know, know, just you on. But I want to you prefer to have me in handcuffs. you anything you know that let confer bar, That if I was to I stand at side your opinions on or make on or whatev- would have to inbe handcuffs. er, bar, whatever, that, side I believe individual, “COURT: That’s correct. I prefer an would be there everything. saying to hear Not Okay, “DEFENDANT: impres- so the me, sion, standby counsel will not advise but again, jury, once upon would a just paHicipate I want to to the place jury? side bar take front of a fullest my being individual accused. exactly “COURT: That’s what side bars do, and permitted say that’s what is under “And that’s all I would on have that, why, your your our rules. And that’s rather than Honor. to be going It’s you discretion, decision, your just you have cuffs And I want [sic]. because added.) Mr. your standby (Emphasis Amalfetano is to be aware.” placed bending him in handcuffs would have re- that the trial over back- and, jury vealed requests his incarcerated status to the wards to accommodate defendant’s matter, practical nugatory as a supported by rendered is not the record. On the con- ruling court's on forcing the motion in limine. It also trary, by defendant to wear handcuffs should be noted that did not to be confer- if he wished sidebar jurors ences, "offer” to inform the of defendant’s by banning completely him from cham- incarceration; rather, he stated that he involving would. from sidebars bers conferences and them, regardless dire, so inform informing of defendant’s ob- juror insisting voir [s|o jection, stating [Objection] "[f]ine. not- of defendant’s incarceration until so, going question any- ed. But I’m to ask the prosecution doing dissuaded him from *37 way.” prosecutor ”[j]udge, The later stated I justice making possi- it trial as difficult as concern, just I effectively have one and want to address to serve as his ble for defendant jury in. attorney. [c]ourt it with before the comes own I’m concerned with the also address- [c]ourt presence partic- ing Standby counsel’s the issue of incarceration if Mr. Thornton 43. urg- objects Only prosecution’s ipation at at the voir-dire sidebars did not occur to it.” request standby ing justice ultimately for did the trial relent and result of defendant’s concedes, the agree prohibit mentioning to do so. As the state to defendant’s in- counsel partici- majority’s suggestion justice prohibited from carceration. But the trial defendant case, defpndant justice argued standby
In
violat-
my judgment, the
rights by
ability
pres-
ed defendant’s Sixth Amendment
interfered
counsel
with his
effectively excluding
participat-
him from
ent his case and thus violated his Sixth
ing
during
in sidebars
which the court
right
analyzing
Amendment
to counsel. In
jurors.
conducted voir dire of potential
standby
for
counsel
appropriate
roles
The trial
did not ameliorate this
defendants,
pro
se
the Court enumer-
by permitting
standby
error
defendant’s
specific rights
ated
that attach to a defen-
counsel to attend these
Unfortu-
sidebars.
pro
se. The
right
proceed
dant’s
however,
nately,
stenographer
did
right
Court stated
defendant’s
to self-
“[a]
proceedings during
not transcribe the
encompasses certain
representation plainly
jurors, including
potential
voir dire of the
heard.
specific rights
have his voice
during
bench conferences
which the court
must
allowed to
pro
The
defendant
questioned
jurors. But here
individual
organization and content of his
control the
again, the state concedes
its brief that
defense,
motions,
argue
own
to make
such sidebars occurred:
substance
“[t]he
dire,
law,
in voir
points
participate
conferences, including those
of most bench
witnesses,
question
and to address the
dire,
during
jury
individual
voir
was not
points
at
appropriate
court
(Emphasis
laid out on the record.”
add-
the trial.” Id. at
104 S.Ct.
ed.)
If no such bench conferences involv-
added.)
(Emphases
L.Ed.2d
jurors
the voir dire of
individual
occurred,
sug-
then the state would have
the clear statement of the United
Given
gested as much
its brief and contended
question, I
Supreme
States
Court on this
on
issue
arguments
by excluding
believe the trial
erred
so,
But it
not
point.
were a moot
did
do
during
defendant from sidebars
which the
stating only that
of most
“[t]he substance
ju-
court conducted individual voir dire of
* *
*
conferences
was not laid out
bench
rors,
thereby
violated defendant’s
Thus, I
the record.”
infer from the
.on
Sixth Amendment
to counsel. The
response
arguments
state’s
to defendant’s
us,
binding
is
teaching McKaskle
on this issue that such bench conferences
that case accords to
se defendants
that,
jus-
indeed occurred and
as the trial
dire of
participate
the voir
voir
de-
began,
tice ruled before the
dire
jurors
requiring
least
them
potential
—at
attending
them.
fendant was barred
disagree-
it occurs. A
to be
when
ruling
of this
ment with the substance
key
Supreme
The
United States
now,
been,
proper
it
nor has
ever
dealing
proper
role of stand-
case
with
justification
ignoring
its mandate —one
counsel vis-á-vis
se defendants is
course,
we, of
are bound to follow.
Wiggins,
104 which
McKaskle
U.S.
(1984).
jury may
Although
perception
burden of demonstrating flowing prejudice from Substantive Chambers from his exclusion from the voir-dire side- Conferences Thus, See note supra. major- bars. the Bleau, ity’s reliance on State v. 649 A.2d Finally, justice the trial excluded defen- (R.I.1994) is in- misplaced. Bleau dant all chambers conferences. The jurors accidentally spotting volved a hand- only acknowledged state has that the hallway cuffed defendant justice defendant, so excluded but courthouse, here, not, but as a deliberate also it has to a referred sixth chambers display of forced a handcuffed defendant (the five) only conference defense cited pursuant justice’s ruling to a trial that he justice from which the trial excluded de- present must himself in this fashion in fendant. These conferences included occa- open Although sight- court. an accidental (1) sions when the attendees and the court ing of a handcuffed the defendant hall- appointment expert discussed the of an ways of the might courtroom not constitute (a psychiatrist) witness re- defendant error, a per se reversible a court-ordered (2) quested; expert’s discussed defense requirement that a present defendant be request money to conduct medical in handcuffs at sidebar conferences tests, setting a deadline for the com- front is a of a horse different (3) pletion testing; standby notified situation, color. the latter the court prosecutor counsel and the of the court’s itself forcing is show the intention deny defendant’s se mo- jury that he is in if custody he wishes to tion for transcripts proceedings other a valid right by exercise constitutional par- him; (4) against juror excused a because ticipating in jurors, the voir dire of where- juror impar- did not think could be Bleau simply situation involved an (5) tial;46 informed counsel and sighting accidental of a handcuffed defen- prosecutor the court intended dant, subject which was the usual harm- testify; allow expert defendant’s witness to analysis. less-error (6) juror belatedly interviewed who
Here, expert defendant’s exclusion from the realized that an he knew witness voir-dire sidebars alone sufficient Although standby to re- who had testified. quire By effectively reversal. barring de- counsel and the were prosecutor from attending justice fendant all during sidebars which with these cham- conferences, the court conducted voir dire of individual court flat-out bers barred jurors, the trial attending violated defendant’s defendant from them.47 telling exchange gone This occurred "COURT: think we’ve No. I far chambers conference between the court and enough, juror] You axe excused.” [to questioning juror: after that, appeal 47. The state asserts because Knowing "MR. AMALFATANO: that if I client, the trial defendant after brought told the fact my this to he would have an conferences, objection about the results these gentleman absolute to this to con- him, mean, rulings naturally go I most of the favored tinue sit. I would him, rights. out and discuss it with but— did not defendant’s But violate out, us, not at all address and does correctly points some before
As the state
Moreover,
argument.
conferences involved
actual
of these chambers
Others, how-
housekeeping matters.
Amend-
majority’s
mere
if the
Fourteenth
even
ever,
case,
critical issues to defendant’s
involved
to this
it
analysis
point
were on
ment
*41
case,
juror
These
including potential
bias.
pro-
role
the
misconstrues defendant’s
conferences,
dealing
including those
latter
defendant
not
ceedings below. The
was
bias,
juror
certainly
potential
with
were
rep-
a criminal defendant who was
simply
which the
importance” upon
“matters of
Rather,
act-
counsel.
he was
resented
right
the
to have his
pro se defendant had
the
attorney, with all
ing pro se as his own
before the
ruled on
voice heard
court
responsibilities
rights, privileges
juror
not be
whether the
should or should
majority appar-
The
come with that role.
Wig-
v.
generally McKaskle
excused. See
fact,
significance
no
ently discerns
gins, 465
104 S.Ct.
U.S.
standby
coun-
and treats defendant
(1984).
right
had the
L.Ed.2d 122
He also
attorney
not defendant’s
sel—who was
—as
juror’s respons-
the
to hear and to observe
entities, essentially view-
interchangeable
es,
intelligently argue
so that
could
(cid:127)
represent
standby counsel as able
ing
justice
how he should deal
about
extent as
interests to the same
defendant’s
trial
juror. The
particular
with this
appoint-
if he were defendant’s retained
standby
at one of
prevented
even
completely
But such a view is
ed counsel.
consulting with his
hearings
these
from
unfounded,
contradicted
explicitly
and is
decided
“client” before the
Supreme
controlling United States
juror’s alleged
prevented
bias
whether
Far-
precedent. See McKaskle
jury.
juror
remaining
from
on the
See
entitled,
etta, supra. The defendant was
16, supra.
note
below,
his
present
to be
as
as discussed
majority
The
has reframed
chambers confer-
attorney
these
own
violated his
assertion that the
Fourteenth
to vindicate his
ences—not
by ex-
right to counsel
Sixth Amendment
just hear-
right to a fair and
Amendment
as
cluding him from chambers conferences
Amendment
to exercise
Sixth
—but
ar-
due-process
a Fourteenth Amendment
reason,
For this
right
to counsel.
argument
But
in his
gument.
nowhere
Souza,
rebanee on the State
majority’s
confer-
concerning
disputed
chambers
(R.I.1981)
and State
The state that of law and “matters of acknowledges pro points impor- the se other justice defendant’s exclusion this case from tance” to the trial before the court addition, discretion, majority suggests, justice’s pro litigant. 48. the as does the trial the se state, defendant, the that the outcome of these confer- attorney, The as his has the own way guide analysis. ences in some our must right participate person at constitutional majority argues many of the The issues justice the these conferences trial before matters, housekeeping were matters that the reaches decision on matters discussed wholly subject were to the discretion of the The outcome the conference. of that true, may justice. Although be the against the decision—for or defendant —is ir- argument Standby misses the mark. counsel relevant to the of his Sixth Amend- exercise pro interchangea- and se are not defendant right ment to be heard as his own counsel. ble, replace, standby cannot at counsel Moreover, in a more active manner when ipate
decided the
at least
issue.49
(one
potentially
coun
one occasion
biased-
is not
because
conferences),
juror
sug-
jury’s
harm
participation will not
sel’s
allow
gested
pro
the trial
should
perception that
se defendant
,
the pro
him to confer with
se defendant
More
managing the
of his own case.
whether to
over,
before the trial
ruled on
pro
appear
se exists
“[t]he
juror. But the
allegedly
exclude an
biased
dignity
autonomy
affirm
suggestion
ignored this
presentation
allow
accused and to
juror anyway,
all without re-
excused
may,
occasionally,
at least
what
se
ceiving any input
from the
defen-
possible
best
defense.” McKas
accused’s
Thus,
justice had
dant.
made his
kle,
176-77,
decision dismissed exclusion of defen L.Ed.2d even heard from defendant. confer dant from substantive chambers undercuts, “dignity the defendant’s ences contemplates partic-
McKaskle active autonomy” McKaskle seeks case, ipation by the excluding defendant protect. By has so that he or she address *43 conferences, I chambers these substantive freely, the court before the court rules on believe, the court violated defendant’s in important motions and issues the case. rights. I Accordingly, Amendment Sixth standby presence jury, the of the Outside vacate the defendant’s conviction would may active approach counsel take more remand the case for a new trial. her participation, his or unsolicited certainly appropriate. Contrary that is Conclusion majority’s
the McKaskle opinion, does may that the trial court substitute suggest argued Although the defendant vocifer- will the se standby pro counsel at it, ously against must deemed trial defendant whenever conferences se voluntarily proceed pro chosen to have jury’s pres- proceedings occur outside the the firing of his and removal of because supports in the Nothing ence. McKaskle ap- attorneys Superior that the two pro wholesale exclusion se defendants him and his declina- pointed represent (or from chambers conferences substantive of the court’s offer to have tion participation proceedings other him represent over” and “slide trial). during the importance substantive the during though the But even trial. Indeed, just is true. opposite the must be deemed to have volun- defendant counsel, contemplates tarily waived his control- indisputably McKaskle governing Amendment law ling se Sixth participation pro active of the required to counsel proceedings that occur fundamental substantive Faretta-type conduct presence jury. of the It also motion outside counsel, however, the defendant know- into whether partie- inquiry allows put disadvan- absence him a points out the cham- state after (and re- tage the trial to hear and bers conferences after because he unable decision on whatever issues arguments positions had made his spond to various conferences), during these were raised by participants the conference. taken Moreover, to address the justice allowed defendant one defendant refers to at least my judgment, this the courtroom. In court in no ever in- conference that one chambers protect the defendant's was insufficient to place, out- took much less its him formed because, then, rights by the results McKaskle come. accompli and conference were a fait ingly and intelligently Moreover, teachings understood the dan- of McKaskle. it gers of representing himself before dis- possible justice’s is also that the trial ex- qualifying appointed attorney. his second juror- clusion of the defendant from the The trial justice’s later offer to have stand- voir-dire jury’s per- sidebars tainted the by counsel “slide over” and ception and led them to believe that stand- defendant at trial did not cure this consti- defendant, and not the se deficiency. tutional Because no such in- was in charge Again, his defense. occurred, quiry I conclude that the Superi- appropriate remedy for significant these or Court violated the defendant’s Sixth constitutional violations would be for this rights. addition, Amendment Court to vacate the defendant’s conviction justice’s effective exclusion of the defen- and remand the case for a new trial. For dant from participating in during sidebars reasons, join these I do not in the Court’s which the court conducted voir dire of resolution of the other issues raised this jurors individual and from substantive appeal, including parts those described in chambers conferences the trial also III through opinion, V of the Court’s be- violated the defendant’s Sixth Amendment I cause would not reach questions. these rights as enumerated the United States Supreme Court in McKaskle. For these
reasons, prevented defendant, at important stages of the (the
proceedings juror-uoir-dire sidebars conferences), substantive chambers
from having heard, his voice contrary to