Friday, May 1, 2009
Page 1
S.C. Upholds Denial of Mid-Trial Request to Appoint Counsel
By STEVEN M. ELLIS, Staff Writer
Los Angeles Superior Court Judge Mark Mooney did not abuse his discretion in denying a self-represented defendant’s mid-trial attempt to revoke his waiver of counsel, the California Supreme Court ruled yesterday in a 6-1 decision.
Reasoning that the defendant failed to articulate a compelling reason, and that continuance of the joint trial after the jury had been empanelled and the prosecution’s first witness had begun to testify would cause delay and disruption, the justices voted to reverse a contrary ruling by Div. Seven of this district’s Court of Appeal.
The division’s presiding justice, Dennis M. Perluss, wrote in 2008 that inconvenience to the jury, codefendant and codefendant’s counsel was an insufficient basis for denial given the early stage of trial, the reason for seeking appointment of counsel, and defendant Ringo Lawrence’s evident inability to represent himself effectively.
But the Supreme Court, in an opinion by Justice Kathryn Mickle Werdegar examining the totality of the circumstances, rejected both that conclusion, as well as the Court of Appeal’s ruling that the denial deprived Lawrence of his constitutional right to counsel.
Dissent Faults Analysis
Dissenting, Justice Joyce L. Kennard faulted the majority’s analysis of the facts and agreed with the Court of Appeal that automatic reversal of Lawrence’s convictions for selling and possessing cocaine for sale was required without any further showing of prejudice.
Lawrence was arrested after a paid police informant indicated he bought rock cocaine from Lawrence at a Los Angeles house. A subsequent search revealed more cocaine, and police found the $20 bill the informant had used in codefendant Patricia Broomfield’s sock.
Lawrence and Broomfield, as well as another man, John Evans, were charged similarly, and when the case was called before Judge David Wesley on the Sept. 28, 2005 calendar, Lawrence’s attorney, Paul Cohen, sought a continuance, explaining that he needed two weeks because he was selecting a jury in an attempted murder trial.
Cohen advised Wesley that Lawrence wished to represent himself, and Wesley initially told Lawrence—who said he wanted to dismiss Cohen because he “ain’t doing nothing”—to be ready to proceed in two weeks.
However, after Broomfield’s counsel, Joseph Walsh, observed that the continuance would cut into his calendar, Wesley admonished Lawrence on the consequences of the waiver and sent the case out for trial before Mooney.
Evans pled guilty, and during jury selection on Lawrence and Broomfield’s joint trial, Walsh advised the court that Lawrence had been asking him questions and wanted to withdraw his waiver.
‘Cross-Examination’
When questioned, Lawrence told the court “[t]he only reason is cross-examination. People are saying something and I am not for sure able to, you know.”
Mooney admonished Lawrence not to bother Walsh, and jury selection continued when Lawrence said nothing more about revoking his in propria persona status.
On Oct. 3, 2005, after jurors entered the courtroom, Lawrence told the court that he had talked to his wife, who told Lawrence he needed counsel. The defendant asked to revoke his waiver, but Mooney deferred responding until the next break.
Mooney then gave opening jury instructions, and allowed both sides to give opening statements and the prosecution’s first witness to begin testifying before he addressed Lawrence’s request. Reasoning that Lawrence had been warned, and that a continuance would be disruptive, Mooney denied the request, and Lawrence was convicted and sentenced to seven years in prison.
However, Perluss, joined by Justices Fred Woods and Laurie D. Zelon, concluded on appeal that Lawrence’s reason for seeking appointed counsel was legitimate, and held that Mooney abused his discretion and that the denial was prejudicial per se.
Request Not Unequivocal
On appeal to the Supreme Court, Werdegar wrote that Mooney had not abused his discretion with respect to Lawrence’s initial remarks on September 28, because they did not amount to an unequivocal request to revoke his in propria person status.
“Defendant, if he did not want to proceed without counsel, should have made an express request to revoke his waiver and pressed for a final ruling at some point during jury selection,” she said.
Turning to Lawrence’s Oct. 3 request, Werdegar opined that the Court of Appeal was “mistaken in its belief that no significant disruption or untoward delay would have been threatened if defendant’s request had been granted and a continuance or mistrial ordered to permit new counsel to prepare a defense.”
Noting that Lawrence premised the request on what his wife—and not what he—wanted, and that Lawrence had been warned of the consequences, the justice observed that “[b]uyer’s remorse may not be an illegitimate reason for wanting to revoke a…waiver, but neither is it a compelling one.”
Werdegar also explained that Lawrence’s asserted ineffectiveness at self-representation did not demonstrate an abuse of discretion.
“That defendant’s defense would have been more effectively presented (or a better sentence obtained through a negotiated plea) had he been represented is likely,” she commented. “But if that fact were determinative, virtually all self-representing defendants would have the right to revoke their counsel waivers at any time during trial. That is not the law.”
Kennard countered that the majority incorrectly concluded the critical date was Oct. 3, rather than five days earlier, and said there would have been no prejudice had Mooney granted Lawrence’s request on Sept. 28.
The case is People v. Lawrence, S160736.
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