Opinion
No. W2008-00759-CCA-R3-CD.
November 12, 2008 Session.
Filed March 2, 2009.
Appeal from the Criminal Court for Shelby County; No. 02-02082; James C. Beasley, Jr., Judge.
Judgment of the Criminal Court Affirmed.
Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Tommy Holmes.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General; William L. Gibbons, District Attorney General; and Amy Weirich, Assistant District Attorney General, for the appellee, State of Tennessee.
Alan E. Glenn, J., delivered the opinion of the court, in which John Everett Williams, J., joined. D. Kelly Thomas, Jr., J., filed a dissenting opinion.
OPINION
The defendant, Tommy Holmes, was convicted by a Shelby County jury of aggravated rape, a Class A felony, and sentenced by the trial court as a violent offender to twenty-four years in the Department of Correction. He raised a number of issues in his original direct appeal, including whether the trial court erred in finding that he had forfeited his right to trial counsel. We found no merit in the other claims, but remanded to the trial court with instructions to hold an evidentiary hearing with respect to the forfeiture of counsel issue. See State v. Tommy L. Holmes, No. W2006-00236-CCA-R3-CD, 2007 WL 1651876 (Tenn.Crim.App. June 7, 2007), perm. to appeal denied (Tenn. Sept. 17, 2007). After holding that hearing, the trial court entered an order finding that the defendant had forfeited the right to counsel by physically assaulting his trial counsel. The defendant now appeals from that order, arguing that his behavior was not sufficiently egregious to warrant the denial of his Sixth Amendment right to counsel. Following our review, we affirm the trial court's order finding that the defendant waived his right to counsel. Having previously found no merit to the defendant's other issues raised on direct appeal, we also affirm his judgment of conviction.
FACTS
Our first direct appeal opinion provides a synopsis of the circumstances that led to the defendant's being required to represent himself at trial:
Approximately one week before the defendant originally was scheduled to be tried, on March 27, 2003, at an impromptu hearing at which the defendant was present, appointed counsel requested the trial court's permission to withdraw from the case, saying that the defendant had been verbally and physically abusive:
On two occasions, Your Honor, including this morning — the reason I had [the defendant] brought up was so I could visit with him up here. He has threatened physical violence in the past at our last meeting. Today he put his hands on me and I had to leave. He punched me in the face with his finger, knocked my glasses off. And I don't believe that I can represent [the defendant]; so I'm asking the Court to relieve me.
The trial court permitted the withdrawal, explaining that it accredited appointed counsel's allegations, that there would not be a hearing on the matter, and that the court would not appoint another lawyer to represent the defendant[.]
Id. at *3. During a May 15, 2003, hearing, the defendant asserted that appointed counsel's allegations were false and requested that the trial court appoint another lawyer. Id. at *4. The trial court refused, reiterating that it accredited the statements of appointed counsel. The defendant responded that there were other individuals present at the time the alleged incident took place, but the trial court nonetheless ruled "that there would not be a hearing and that the case would `proceed as is.'" Id.
When the case came up on appeal, we noted that a trial court may properly require an indigent defendant to proceed pro se upon a finding that he has forfeited his constitutional right to assistance of counsel by being physically abusive to his trial counsel. Id. at *5. We further noted, however, that we "must have an adequate record on which to evaluate such a finding." Id. We, therefore, remanded the case to the trial court to hold an evidentiary hearing on the issue:
In this matter, the trial court did not conduct a hearing, at which the defendant would have been allowed both to testify and present witnesses on his behalf, before concluding that he had waived his right to counsel. Rather, it is apparent from the record that the trial court accredited appointed counsel's account of what transpired at their meeting the morning of the withdrawal, but in light of the defendant's assertions that there were witnesses to the altercation, we must remand for consideration of this issue. We note that the State has the burden of establishing that the defendant forfeited his right to counsel.
Id. at *6.
At the March 17, 2008, hearing on remand, appointed counsel testified that he worked for the public defender's office and was assigned to represent the defendant. He stated that, as he was leaving his next to last meeting with him, the defendant said in a threatening manner, "I know how to get rid of you." The physical encounter between the men occurred when counsel next met with the defendant approximately two weeks before the trial was scheduled to begin. Counsel described the incident:
We were . . . talking back in the tank and [the defendant] asked me well do you believe I'm innocent. And I said it really doesn't matter what I believe. He jumped up, stood over me and said you're going to do what I tell you to do, pushed his finger at me and knocked my glasses, not all the way off but askew.
Counsel testified that he and the defendant were alone in the interview room, with the door shut, when the incident occurred. He did not know whether anyone was in the hallway at the time. The defendant did not apologize for his actions. Counsel said he reacted by gathering his books, leaving the room, and immediately reporting the incident to the trial judge. He stated that he was frightened by the defendant's actions and had never had anything like that happen with a client either before or since.
On cross-examination, counsel acknowledged that the defendant did not take a swing at him. As he recalled, the defendant uttered an expletive as counsel left but did not try to follow him from the room. He acknowledged that the defendant made contact with his eyeglasses rather than his face but said that the defendant's knocking his glasses askew hurt him and caused the glasses to break at the temple. He further acknowledged that his glasses did not fall to the floor. He said, however, that he believed they were knocked off his ear.
In response to questioning by the trial court, appointed counsel explained that the recent murder of attorney Robert Friedman and the incidents that occurred during the Tony Carruthers trial made him take seriously the defendant's threat that he knew how to get rid of him. He said he could not recollect any problems or disagreements with the defendant prior to the incidents at issue in the case.
Shelby County Sheriff's Deputy James Lafferty, testifying on the defendant's behalf, said that he was the bailiff in Division 5 and opened the door to allow counsel to enter the holding tank to meet with the defendant. He said that he opened the door to the room again when he heard the sound of loud voices and a chair sliding across the floor. When he did so, counsel, who appeared red-faced and flustered, pushed out past him "fixing his glasses [and] saying let me out of here." Officer Lafferty testified that there was no one else in the room with the defendant and counsel and no one besides himself in the hallway at the time. He believed that counsel told him that the defendant had slapped him and knocked his glasses off. Counsel, however, declined to press charges, saying that the defendant "was in too much deep water as it is" and that he "just want[ed] off the case." The defendant made no attempts to follow counsel and, as Officer Lafferty recalled, was sitting in a chair when Officer Lafferty entered the room.
The defendant did not testify.
At the conclusion of the hearing, the trial court found that the State had met its burden of demonstrating that the defendant had forfeited his Sixth Amendment right to counsel by physically striking his appointed counsel. The trial court issued oral findings of fact at the conclusion of the hearing, which it later reduced to a written order entered on March 19, 2008. Thereafter, the defendant filed a timely appeal to this court.
ANALYSIS
The defendant contends that the incident as described by appointed counsel at the remand hearing does not constitute the type of physical assault that warrants a finding that he forfeited his constitutional right to counsel. He asserts that counsel's description of the incident at the remand hearing, with the defendant striking his eyeglasses with his finger and knocking them askew rather than off his face, is "quite different" from the accounts he provided to Officer Lafferty and to the trial judge immediately after the incident occurred. The defendant argues that "[h]ad there been an assault on [appointed counsel,] Officer Lafferty would have reported it and su[b]mitted charges against the inmate," and suggests that counsel's reluctance to press charges stemmed from his awareness that the incident was not serious enough to constitute an assault. The State argues that the trial court did not abuse its discretion in finding that the defendant forfeited his right to counsel by his unprovoked physical assault of appointed counsel. We agree with the State.
An indigent criminal defendant's right to the assistance of appointed counsel at trial is guaranteed by the Constitutions of both the United States and the State of Tennessee. See U.S. Const. amend. VI; Tenn. Const. art. I, § 9. A criminal defendant can, however, forfeit that right by engaging in extremely serious misconduct. See State v. Carruthers, 35 S.W.3d 516, 548 (Tenn. 2000) (citing United States v. Goldberg, 67 F.3d 1092, 1102 (3d Cir. 1995); City of Tacoma v. Bishop, 920 P.2d 214, 218 (Wash.Ct.App. 1996)). A defendant who has engaged in such extremely serious misconduct may forfeit his right to counsel "even though [he] was not warned of the potential consequences of his or her actions or the risks associated with self-representation."Id. In such circumstances, "forfeiture results regardless of the defendant's intent to relinquish the right and irrespective of the defendant's knowledge of the right." Id.
As an initial matter, we disagree with the defendant's contention that counsel's account at the remand hearing was "quite different" from the one he provided to the trial judge immediately after the incident occurred. Counsel told the trial judge that the defendant had threatened physical violence against him at a previous meeting and had just then punched him in the face with his finger, knocking his glasses off. Notably, he did not use the word "slap" or say that his glasses had been knocked all the way to the floor. He testified in a similar vein at the remand hearing, stating that the defendant at the earlier meeting threatened that he knew how to get rid of him, which he interpreted as a physical threat, and at their last meeting pushed his finger in his face, knocking his glasses askew on his face.
Officer Lafferty believed that counsel told him that the defendant had slapped him. It is clear from his testimony, however, that he was not absolutely certain that those were the exact words that counsel used. Furthermore, even if counsel, in the stress of the moment, referred to the defendant's action as a "slap" to Officer Lafferty, he refrained from using such language when he appeared before the trial judge, instead describing the assault as a finger punch to the face.
As we observed when this case first came before us on appeal, a defendant's unprovoked physical battery of his attorney qualifies as the type of extremely serious misconduct that can result in the forfeiture of his right to the assistance of counsel. See United States v. Leggett, 162 F.3d 237, 250 (3d Cir. 1998). The defendant inLeggett engaged in an unprovoked physical attack on his attorney in the courtroom, punching him in the head and then straddling his body and choking, scratching, and spitting on him. Id. at 240. In upholding the district court's finding that the defendant had forfeited his right to counsel by such actions, the Third Circuit Court of Appeals noted that the Eleventh Circuit Court of Appeals upheld a finding of forfeiture based on a defendant's mere verbal abuse of his attorney:
To forfeit the right to legal representation, a defendant must engage in "extremely serious misconduct." [Goldberg, 67 F.3d] at 1102. For example, in [United States v.] McLeod, [ 53 F.3d 322 (11th Cir. 1995)], a defendant's attorney testified that the defendant was "verbally abusive"; had "threatened to harm [the attorney]"; had threatened to sue the attorney; and had tried to persuade the attorney to engage in unethical conduct. 53 F.3d at 325. The district court concluded that the defendant's behavior was so egregious as to constitute a forfeiture of the right to counsel-and the court of appeals for the Eleventh Circuit agreed by affirming that decision. Id. at 326.
Leggett's conduct was even more extreme than that of the defendant in McLeod. Whereas the McLeod defendant's abuse of his attorney was verbal in nature, Leggett's abuse was an unprovoked physical battery. We do not hesitate to conclude that such an attack qualifies as the sort of "extremely serious misconduct" that amounts to the forfeiture of the right to counsel. Goldberg, 67 F.3d at 1102.
Id. at 250.
Other courts have, similarly, found a forfeiture of counsel based merely on a defendant's verbal threats and harassment of his counsel.See, e.g., Bultron v. State, 897 A.2d 758, 766 (Del. 2006) (upholding finding of forfeiture based on defendant's "continuing profanity and insulting conduct" directed at appointed counsel); Carruthers, 35 S.W.2d at 548-50 (finding forfeiture of counsel based on defendant's pattern of verbal abuse and threats against series of appointed counsel, their families, and employees); Commonwealth v. Thomas, 879 A.2d 246, 258 (Pa.Super.Ct. 2005) (concluding that defendant "forfeited his right to counsel through his pattern of serious misconduct, abuse, threats, and utter failure to collaborate in his own defense."); People v. Sloane, 262 A.D.2d 431, 432 (N.Y.App.Div. 1999) (holding that defendant forfeited his right to counsel by engaging in a pattern of threatening and abusive behavior toward successive attorneys).
Here, the defendant not only verbally threatened his attorney but also physically attacked him by pushing his finger into his face. His words that he knew how to get rid of counsel were spoken in a threatening manner and uttered when a prominent Memphis attorney had recently been shot to death by his client, see State v. Harold D. Noel, No. W2005-00160-CCA-R3-CD, 2006 WL 2729487, at *1 (Tenn.Crim.App. Sept. 25, 2006), and after the notorious Tony Carruthers trial, in which the defendant had engaged in a pattern of intimidation and verbal threats against a series of attorneys, their family and employees, and the trial judge presiding over his case. See Carruthers, 35 S.W.3d at 536-42. The defendant's unprovoked physical attack against counsel broke counsel's eyeglasses, knocked the glasses off counsel's ear, and caused counsel to experience physical pain.
We recognize that the defendant's assault against appointed counsel does not rise to the level of Leggett's assault against his trial counsel. We further recognize that the forfeiture here occurred prior to the guilt, rather than the sentencing, phase of the trial. See Leggett, 162 F.3d at 251 n. 14 ("We note that the forfeiture of counsel at sentencing does not deal as serious a blow to a defendant as would the forfeiture of counsel at the trial itself. . . . We express no opinion as to whether Leggett's misconduct would have been sufficient to justify the forfeiture of counsel during the trial."). In our view, however, the defendant's physical assault against counsel, combined with his earlier verbal threat, qualifies as the sort of extremely serious misconduct sufficient to warrant the trial court's finding that the defendant forfeited his right to the assistance of counsel.
CONCLUSION
Based on our review, we conclude that the trial court did not err by finding that the State met its burden of showing that the defendant forfeited his right to the assistance of counsel. Because we found no merit in the other issues the defendant raised in his previous direct appeal, we affirm the conviction for aggravated rape.
I respectfully dissent from the result reached by the majority affirming the trial court's determination that the defendant's conduct in this case warranted the forfeiture of counsel. I acknowledge that the majority opinion correctly recites the applicable case law concerning defendant misconduct and forfeiture of counsel. However, I disagree with the majority opinion's application of the law to the facts presented in this case. Therefore, I conclude that the trial court abused its discretion in its determination that the defendant forfeited his Sixth Amendment right to counsel at trial.
Interestingly, remand counsel noted that while the defendant was forced to proceed pro se throughout trial, the trial court afforded him appointed counsel for the motion for new trial and appellate stages of his case.
The facts of this case are easily distinguishable from those cases cited by the majority. Defense counsel testified at the initial hearing on March 27, 2003 in which he sought to withdraw as counsel that the defendant "ha[d] threatened physical violence in the past at our last meeting. Today he put his hands on me and I had to leave. He punched me in the face with his finger, knocked my glasses off." The trial court granted defense counsel's motion to withdraw and further ruled sua sponte that the defendant would not be appointed additional counsel. On May 15, 2003, the defendant sought a hearing to refute the allegations of counsel in an effort to obtain appointed counsel. The trial court denied the defendant's request for a hearing and ruled that the defendant would proceed without counsel. Two years and five months later, the defendant went to trial with only the assistance of "elbow counsel." The defendant was convicted of aggravated rape and sentenced to twenty-four years in the custody of the Department of Correction.
On direct appeal, this court found error with the trial court's refusal to conduct an evidentiary hearing on the forfeiture of counsel issue and remanded the case for an evidentiary hearing. State v. Tommy L. Holmes, No. W2006-00236-CCA-R3-CD, 2007 WL 1651876 (Tenn.Crim.App. June 7, 2007), perm. app. denied (Tenn. Sept. 17, 2007). On remand, defense counsel testified that on one occasion, the defendant told him, "I know how to get rid of you." Defense counsel interpreted this as a threat of violence, although it is notable that he did not report this statement to the court contemporaneous to its occurrence or take any precautions that would indicate he, in fact, felt threatened, such as having the defendant handcuffed during meetings. Some time later at their next meeting and within two weeks of the scheduled trial date, the physical encounter occurred that precipitated the trial court's grant of defense counsel's motion to withdraw and the accompanying refusal to appoint new counsel. We note that defense counsel's testimony at the remand hearing differed significantly from the events as testified to at the initial hearing. At the remand hearing, defense counsel stated that the defendant "stood over me and said you're going to do what I tell you to do, pushed his finger at me and knocked my glasses, not all the way off but askew." Defense counsel also recalled that the incident occurred amid the backdrop of events involving the murder of a Memphis defense attorney and the Tony Carruthers trial, a defendant who went to trial without counsel in the wake of continued and persistent threats against a series of defense counsel. Nevertheless, on cross-examination, defense counsel acknowledged that, despite the fact that he took the defendant's first statement to have been made in a threatening manner, he did not report it to the trial court nor did he ask that the defendant be shackled at the subsequent meeting where the physical contact occurred. Indeed when questioned by the trial court at the remand hearing, defense counsel testified that there had never been any problems between himself and the defendant and that he was surprised when the confrontation occurred.
Counsel noted at the remand hearing that defense counsel was one of the attorneys involved in the Carruthers case who was relieved from representation after Carruthers's repeated threats.
Significantly, the State argued at the remand hearing that "the bottom line is, there was physical contact between his client and [defense counsel] and there's nothing in the law that requires [defense counsel] to continue representing this defendant." Of course a lawyer should not be subjected to abusive or offensive physical contact from a client. However, the controlling issue presented in this case is, as stated by counsel at the remand hearing, "whether or not [the defendant] forfeited the Sixth Amendment right to counsel."
A trial court's decision regarding the appointment or relief of counsel will not be disturbed on appeal absent a showing of an abuse of discretion. State v. Rubio, 746 S.W.2d 732 (Tenn.Crim.App. 1987). For this court to conclude that an abuse of discretion occurred, there must be no substantial evidence to support the conclusion of the trial court.Id. The trial court correctly noted that a criminal defendant may forfeit the right to the assistance of counsel by engaging in extremely serious misconduct. State v. Carruthers, 35 S.W.3d 516, 548 (Tenn. 2000) (citing United States v. Goldberg, 67 F.3d 1092, 1102 (3d Cir. 1995); City of Tacoma v. Bishop, 920 P.2d 214, 218 (Wash.Ct.App. 1996)). I also note, as did the trial court and the majority, that the events surrounding this case occurred against the backdrop of the Carruthers case, in which defense counsel was involved, and the murder of a prominent criminal defense attorney. However, with due deference to those circumstances that the trial court found particularly relevant, I do not believe that the defendant's conduct rose to the level of extremely serious misconduct to warrant forfeiture of his right to counsel. The trial court specifically found that the defendant in this case "poked his finger in [defense counsel's] face and hit his glasses and knocked his glasses off" and later that the defendant "punched [defense counsel] in the face with his finger and made contact with his glasses on his face."
The cases relied upon by the trial court and the majority describe misconduct that is, in my opinion, of far greater seriousness than that found to have been committed by the defendant in this case.See, e.g., United States v. Leggett, 162 F.3d 237, 250 (3d Cir. 1998) (unprovoked physical attack in the courtroom wherein the defendant punched his attorney in the head while straddling his body, choking, scratching and spitting on him); Bultron v. State, 897 A.2d 758, 766 (Del. 2006) ( "continuing profanity and insulting conduct" toward counsel warranted forfeiture) (emphasis added); People v. Slone, 262 A.D.2d 431, 432 (N.Y.App.Div. 1999) (pattern of threatening and abusive behavior directed at successive attorneys) (emphasis added).
In Carruthers, a case involving continued threats of violence to a succession of attorneys — including threats directed at family members and staff indicating that they were being watched — our supreme court warned that forfeiture is an extreme sanction. Carruthers, 35 S.W.3d at 548. As such, it "is appropriate only where a defendant egregiously manipulates the constitutional right to counsel so as to delay, disrupt, or prevent the orderly administration of justice." Id. (emphasis added). Based upon these principles, I cannot conclude that the "extreme sanction" of forfeiture was warranted in this case. Therefore, I conclude that the trial court abused its discretion and that the defendant's right to counsel was violated as a result.
For these reasons, I respectfully dissent from the majority opinion in this case and would vacate the judgment of the trial court and remand for a new trial.