State of Maryland v. Shawn L. Brown, No. 65, September Term, 1995
CRIMINAL LAW--TRIAL--A defendant's right to discharge counsel, to
permit either substitution of counsel or self-representation, is
curtailed once meaningful trial proceedings have commenced in order
to prevent undue interference with the administration of justice.
CRIMINAL LAW--TRIAL--Maryland Rule 4-215, which governs a
defendant's waiver of the right to counsel, does not apply after
trial begins. Although the trial judge need not apply Rule 4-215,
the judge must ensure that any waiver of the right to counsel is
"knowing and intelligent," Johnson v. Zerbst, 304 U.S. 458, 464-65,
58 S. Ct. 1019, 82 L. Ed 1461 (1938), and that the defendant's
decision is "made with eyes open." Faretta v. California, 422 U.S.
806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
CRIMINAL LAW--TRIAL--In evaluating requests to dismiss counsel
after trial has commenced, the trial court should consider: (1)
the merit of the reason for discharge; (2) the quality of counsel's
representation prior to the request; (3) the disruptive effect, if
any, that discharge would have on the proceedings; (4) the timing
of the request; (5) the complexity and stage of the proceedings;
and (6) any prior requests by the defendant to discharge counsel.
Under the circumstances of this case, the court did not conduct an
adequate inquiry to elicit the reason for the proposed dismissal.
IN THE COURT OF APPEALS OF MARYLAND
September Term, 1995
STATE OF MARYLAND
SHAWN L. BROWN
Opinion by Raker, J.
May 17, 1996
In this case, we are asked to determine whether Maryland Rule
4-215, which outlines the procedures a trial court must follow when
a defendant elects to discharge counsel, applies to decisions to
dismiss counsel made after the trial has begun.
We shall hold that
the Rule does not apply after trial proceedings have commenced.
On October 26, 1993, two undercover police officers purchased
$20 worth of crack cocaine from a person they later identified as
Respondent, Shawn L. Brown.
The transaction was videotaped.
November 12, 1993, the officers purchased another $20 worth of
crack cocaine from Brown.
Following the second sale, Brown was
He was indicted in the Circuit Court for Wicomico County
on two counts of distribution of a controlled dangerous substance
in violation of Maryland Code (1957, 1992 Repl. Vol., 1995 Cum.
Supp.) Article 27, § 286, and two counts of possession of a
controlled dangerous substance in violation of Maryland Code (1957,
1992 Repl. Vol., 1995 Supp.) Article 27, § 287.
Brown waived his right to a jury and was tried before the
court on April 13, 1994.
At the beginning of the proceedings,
Respondent's counsel requested a continuance, and advised the court
that because he had only been engaged four days before trial, he
had insufficient time to prepare.
The State objected to the
continuance, arguing that only a few days earlier, Respondent's
-2The judge denied the continuance.1
The State called its first witness, but before questioning
began, Respondent interrupted to request a jury trial.
denied the request because Respondent had previously waived his
right to jury trial.
The State then proceeded to examine the
Before the State completed the direct examination of the first
witness, Respondent's counsel indicated that his client wished to
The judge inquired about the reason for the
dismissal, and Respondent's counsel suggested that the decision was
based on his client's father's advice.
Respondent did not comment,
but his father interjected that counsel was unfamiliar with the
The judge did not permit Respondent to discharge his
See infra Section V.
The State presented evidence including testimony from the two
transaction, and the crack cocaine.
The defense argued mistaken
identity, pointing to the fact that the person in the police
videotape was clean-shaven, while Respondent had a full beard.
Respondent testified that he had grown the beard before the first
Respondent was convicted on all four counts.
Respondent's father attempted to interrupt after the
continuance was denied, but was not permitted to comment.
-3Respondent was sentenced to two consecutive terms of ten-year
incarceration for the drug distribution charges.
convictions were merged for purposes of sentencing.
Respondent noted a timely appeal to the Court of Special
The intermediate appellate court reversed the judgment of
the trial court, holding that the trial judge failed to apply the
Respondent should be allowed to discharge his counsel.
State, 103 Md. App. 740, 654 A.2d 944 (1995).
We granted the
State's petition for certiorari to answer two questions:
Did the Court of Special Appeals err in holding:
(1) that Maryland Rule 4-215 is applicable
once trial has commenced; and
(2) that the trial court did not properly
comply with subsection (e) of the Rule in this
The State contends that Rule 4-215 does not apply once trial
The State argues that Rule 4-215(e) applies only to
beginning of the trial.
Respondent did not indicate a desire to
discharge his counsel until the State had commenced its case-inchief.
Therefore, the State argues that Rule 4-215(e) did not
Alternatively, the State argues that even if Rule 4-215(e)
-4requirements of the Rule.
decisions to discharge counsel, regardless of when they are made.
Therefore, Respondent argues, the trial court was required to
requirements of Rule 4-215(e) did not apply, the trial court abused
its discretion by failing to identify and consider the reason
Respondent wished to discharge his counsel before deciding not to
allow the dismissal.
In this case, we must consider the interplay between two
constitutional rights and the procedural rule that is designed to
implement those rights.
Maryland Rule 4-215 is designed to protect
both the right to assistance of counsel and the right to pro se
defense provided by the Sixth Amendment.2
Leonard v. State, 302
The Sixth Amendment states that:
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed, which district shall have been
previously ascertained by law, and to be
informed of the nature and cause of the
witnesses against him; to have compulsory
process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his
-5Md. 111, 121-22, 486 A.2d 163, 168 (1985).
As we shall explain
infra, once meaningful trial proceedings have begun, the right to
substitute counsel and the right to defend pro se are curtailed to
prevent undue interference with the administration of justice.
Fowlkes v. State, 311 Md. 586, 605-06, 536 A.2d 1149, 1159 (1988).
Thus, once trial begins, exercise of these rights is subject to the
trial court's discretion.
Rule 4-215 is designed to ensure that
defendants of the Sixth Amendment right to counsel.
The Rule is
not intended to deprive the courts of discretion regarding motions
to discharge counsel after trial has commenced.
conclude that the Rule is inapposite once trial is underway.
A. Constitutional Implications of Defendant's
Dismissal of Counsel
A defendant's request to dismiss appointed counsel implicates
two rights that are fundamental to our system of criminal justice:
the defendant's right to counsel, and the defendant's right to
See Moten v. State, 339 Md. 407, 663 A.2d 593
(1995); Parren v. State, 309 Md. 260, 523 A.2d 597 (1987); Snead v.
U.S. CONST., amend. VI.
-6State, 286 Md. 122, 406 A.2d 98 (1979).
See also McKaskle v.
Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984);
Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d
562 (1975); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L.
Ed. 2d 799 (1963). When a defendant indicates a desire to dismiss
counsel, the defendant must request permission to obtain substitute
counsel or to proceed pro se.
The trial court's subsequent
procedures depend on whether the defendant requests substitute
counsel or self-representation.
See People v. Sims, 28 Cal. Rptr.
2d 645, 647 (Ct. App. 1994) ("[I]t is the relief requested (selfrepresentation)
(dissatisfaction with counsel) which governs the trial court's
responsibilities when considering such motions.").
If the defendant requests dismissal of counsel in order to
obtain substitute counsel, the court must afford the defendant an
opportunity to explain the reasons for the proposed dismissal.
United States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986), cert.
denied, 479 U.S. 846 (1986); United States v. Welty, 674 F.2d 185,
190 (3d Cir. 1982).
While an indigent defendant is entitled to
appointed counsel, the defendant is not entitled to choose a
See Fowlkes, 311 Md. at 605-06, 536 A.2d at
1159; cf. Grandison v. State, 341 Md. 31, 57-58, 670 A.2d 398, 41011 (1995).
Instead, the defendant is entitled to the effective
assistance of counsel, and may only
obtain substitute counsel for
See Fowlkes, 311 Md. at 605-06, 536 A.2d at 1159.
See also United States v. Gallop, 838 F.2d 105, 108 (4th Cir.
1988), cert. denied, 487 U.S. 1211 (1988); Allen, 789 F.2d at 92.
If the defendant requests dismissal of counsel in order to
proceed pro se, and if the proposal to discharge counsel is timely
and unequivocal, the court must ordinarily grant the request.
Faretta, 422 U.S. at 833-34.
By choosing self-representation, the
defendant forgoes the right to counsel.
Therefore, the court must
conduct a waiver inquiry to ensure that any decision to waive the
right to counsel is "made with eyes open."
Id. at 835 (quoting
Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 87 L. Ed.
268, 63 S. Ct. 236 (1943).
The Sixth Amendment requires that the
defendant's waiver of the right to counsel must be "knowing and
Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S. Ct.
1019, 82 L. Ed 1461 (1938).
See also 1 AMERICAN BAR ASS'N, ABA
CRIMINAL JUSTICE 6-38 to 6-41 (2d ed. 1986) (Special
Functions of the Trial Judge Standard 6-3.6, Defendant's Election
to Represent Himself or Herself at Trial).
Although courts have
recognized several exceptions to the Faretta rule, see, e.g., Sims,
28 Cal. Rptr. 2d at 658 n.4, these exceptions have been narrowly
The decision regarding whether the defendant has presented
"good cause" for substitution is left to the court's discretion;
"good cause" for dismissal must be measured against an objective
standard. Allen, 789 F.2d at 93; McKee v. Harris, 649 F.2d 927,
932 (2d Cir. 1981), cert. denied, 456 U.S. 917 (1982).
Cf. Leonard, 302 Md. at 127, 486 A.2d at 171.
unequivocal request for self-representation is reversible error.
See Snead, 286 Md. at 130, 406 A.2d at 102.
See also McKaskle, 465
U.S. at 177 n.8; People v. Davis, 49 N.Y.2d 372, 400 N.E.2d 313,
B. Limitation of the Right to Dismiss Counsel After
While we have recognized the importance of the right to
dismiss counsel, we have also concluded that at some point after
trial begins, the right to defend pro se and the right to obtain
substitute counsel must be limited to prevent undue interference
with the administration of justice.
A.2d at 1159.
Fowlkes, 311 Md. at 605, 536
See also United States v. Dunlap, 577 F.2d 867, 868
(4th Cir. 1978), cert. denied, 439 U.S. 858 (1978).
In the absence
of such a limitation, defendants could use "eleventh hour" requests
to discharge counsel as a tactic to delay the proceedings or to
confuse the jury.
See, e.g., State v. Sheppard, 310 S.E.2d 173,
187 (W. Va. 1983); Dunlap, 577 F.2d at 868-69.
order to justify substitution of counsel after trial
begins, the defendant must demonstrate good cause.
Harris, 649 F.2d 927, 931 (2d Cir. 1981), cert. denied, 456 U.S.
-9917 (1982) (good cause may include a "conflict of interest, a
complete breakdown of communication or an irreconcilable conflict
which leads to an apparently unjust verdict.").
311 Md. at 605-06, 536 A.2d at 1159.
See also Fowlkes,
The decision whether to
permit mid-trial substitution of counsel is left to the trial
See Commonwealth v. Chavis, 415 Mass. 703, 616
N.E.2d 423, 428 (1993); Commonwealth v. Miskel, 364 Mass. 783, 308
N.E.2d 547, 552 (1974).
As the Massachusetts Supreme Judicial
Court has stated:
It is now well established by decisions of
this court and of the [f]ederal courts that a
defendant's freedom to change his counsel is
restricted on the commencement of trial.
"Once the trial had begun, the effectiveness
of any right of the defendant to force a
change of counsel was diminished. . . .
Thereafter any prejudice to his interests was
to be balanced with the foreseeable effect
upon the trial already in progress. Upon this
issue the decision must be largely within the
discretion of the trial judge[.]"
Miskel, 308 N.E.2d at 552 (citations omitted) (quoting Lamoreux v.
Commonwealth, 353 Mass. 556, 233 N.E.2d 741, 744 (1978)).
United States v. Michelson, 559 F.2d 567, 572 (9th Cir. 1977);
United States v. Price, 474 F.2d 1223, 1227 (9th Cir. 1973); United
States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965),
cert. denied, 384 U.S. 1007 (1966); State v. LaBare, 637 A.2d 854,
855 (Me. 1994); State v. Robinson, 227 Conn. 711, 631 A.2d 288, 297
(1993); State v. Ronne, 458 N.W.2d 294, 299-300 (N.D. 1990); Garris
-10v. United States, 465 A.2d 817, 820 (D.C. 1983), cert. denied, 465
U.S. 1012 (1984); Swinehart v. State, 268 Ind. 640, 376 N.E.2d 487,
490 (1978); State v. Heaps, 87 Or. App. 489, 742 P.2d 1188, 1189
(1987). If the court concludes that the defendant's request to
dismiss counsel was "not made in good faith but [was] a transparent
ploy for delay," the court may exercise its discretion to deny the
Morris v. Slappy, 461 U.S. 1, 13, 103 S. Ct. 1610, 75 L.
Ed. 2d 610 (1983).
Furthermore, tactical disagreements short of a
generally do not warrant mid-trial substitution of counsel.
Miskel, 308 N.E.2d at 552; see also Morris, 461 U.S. at 139
(rejecting the view that the defendant is entitled to a "meaningful
The limitation on the right to obtain substitute counsel
after trial begins applies to both indigent defendants and
defendants with private counsel. As the United States Court of
Appeals for the Fourth Circuit concluded in Sampley v. Attorney
General of North Carolina, 786 F.2d 610, 612 (4th Cir. 1986), cert.
denied, 478 U.S. 1008 (1988), that:
The sixth amendment, while not providing an
absolute right, guarantees a defendant a fair
opportunity to secure counsel of his own
choice to represent him at trial on criminal
Among the ways this opportunity,
hence the right, can be denied, is by a
court's refusal to continue a scheduled trial
when the defendant appears on the scheduled
date without counsel, or is forced to trial
with unprepared counsel or with counsel not of
his choice. But the right, as indicated, is
guaranteed is only a "fair" one.
-11Frequently, denial of a defendant's request for substitute
counsel leads to a request to defend pro se.5
See, e.g., Snead,
286 Md. at 126, 406 A.2d at 100; see also Taylor v. State, 557
So.2d 138, 140 (Fla Dist. Ct. App. 1990).
Although the request to
unequivocally before trial, the right to proceed pro se is limited
after trial has begun.
See, e.g., Bassette v. Thompson, 915 F.2d
932, 941 (4th Cir. 1990), cert. denied, 499 U.S. 982 (1991); United
States v. Lawrence, 605 F.2d 1321, 1324 (4th Cir. 1979), cert.
denied, 444 U.S. 1084 (1980); Sapienza v. Vincent, 534 F.2d 1007,
1010 (2d Cir. 1976); People v. Windham, 137 Cal. Rptr. 8, 560 P.2d
1187, 1190-91 (1977).
Id. at 612-13 (emphasis added). See also United States v. Allen,
789 F.2d 90 (1st Cir. 1986), cert. denied, 479 U.S. 846 (1986);
Commonwealth v. Miskel, 364 Mass. 783, 308 N.E.2d 547 (1974).
Often, a defendant may move for substitute counsel or, in
the alternative, pro se defense if the court elects not to provide
substitute counsel. See, e.g., United States v. Flewitt, 874 F.2d
669 (9th Cir. 1989); United States v. Price, 474 F.2d 1223 (9th
Cir. 1973); Works v. State, 266 Ind. 250, 362 N.E.2d 144 (1977).
Contrary to the view of some courts, we do not believe the fact
that a defendant asserts the right to self-representation as a
result of a failed request for substitute counsel renders the
request to proceed pro se "equivocal." See Snead, 286 Md. at 130,
406 A.2d at 102. Also compare Flewitt, 874 F.2d at 673 (majority
op.) with id. at 678-79 (Brunetti, J., dissenting).
People v. Hill, 148 Cal. App. 3d 744, 196 Cal. Rptr. 382, 394 (Ct.
App. 1983) ("Where a court thoroughly inquires, on the record, into
a defendant's specific allegations of attorney misconduct or
inadequacy and, exercising discretion, denies substitution, a
defendant's subsequent Faretta waiver, though partially induced by
that denial, will not be defective.").
-12For example, as the Fourth Circuit stated in Bassette v.
Thompson, 915 F.2d 932 (4th Cir. 1990), cert. denied, 499 U.S. 982
Although under . . . the Sixth Amendment to
the United States Constitution a defendant has
a right of self-representation . . . this
right is not absolute, and after a defendant
has proceeded to trial with an attorney, the
right to proceed pro se rests within the sound
discretion of the trial court.
Appellant argues that under Faretta v.
California, 422 U.S. 806, 45 L. Ed. 2d 562, 95
S. Ct. 2525 (1975), a defendant has a Sixth
however, this right is not absolute and may be
waived or limited if not raised before trial.
Faretta does not deal with the situation of a
defendant attempting to proceed pro se after
trial has begun.
Id. at 941 (citations omitted).
Thus, if a defendant does not
timely assert the right to proceed pro se, the decision to grant
the request is also left to the sound discretion of the trial
Although the trial court may consider similar factors in
determining whether to grant a defendant's mid-trial motion to
proceed pro se or a motion to obtain substitute counsel, the
standards may not be identical. See, e.g., United States v. Price,
474 F.2d 1223, 1226-27 (9th Cir. 1973); Blankenship v. State, 673
S.W.2d 578 (Tex. Crim. App. 1984).
Some courts have suggested that the standard for evaluating
requests to defend pro se should be more permissive than the
Blankenship, 673 S.W.2d at 585. For example, in Blankenship, the
Texas Court of Criminal Appeals stated that:
While this court has held that the accused may
-13Although we have not previously addressed this issue, the
Court of Special Appeals has reached a similar conclusion in
See Ross v. State, 53 Md. App. 397, 453 A.2d
not wait until the day of trial to demand
different counsel or to request that counsel
be dismissed so that he may retain other
counsel where this results in a delay of the
proceedings, . . . such is not the situation
in the case at bar.
demanded the appointment of different counsel
nor did he ask that his attorney be dismissed
so that he could retain other counsel.
merely asserted his constitutional right to
represent himself at trial.
Id. (citation omitted). In this case, because the trial court did
not determine whether the defendant sought substitute counsel or
pro se defense, we need not reach the issue of whether the
We considered a related but distinct issue in Leonard v.
State, 302 Md. 111, 486 A.2d 163 (1985). In Leonard, on the day of
trial prior to jury selection, the defendant requested substitute
counsel, and the trial court denied the request. Id. at 114, 486
A.2d at 164. After voir dire of the prospective jurors had been
completed but before the parties presented opening statements, the
defendant requested permission to defend pro se. Id. at 115-16,
486 A.2d at 165-66. The trial court granted the request. Id., 486
A.2d at 165-66. On appeal following his conviction, Leonard argued
that the trial court should have conducted a waiver inquiry
pursuant to Maryland Rule 723 (a precursor of Rule 4-215) when he
asserted his Faretta right.
We concluded that the trial court
should have conducted a waiver inquiry pursuant to Rule 723, and
that the failure to do so constituted reversible error. Id. at
129, 486 A.2d at 172.
Leonard is distinguishable from the instant case, however,
because the trial court found that the defendant in Leonard had
timely asserted his right to defend pro se. Leonard asserted his
Faretta right before opening statements, while in this case, Brown
-14828 (1983); Johnson v. State, 44 Md. App. 515, 411 A.2d 118 (1980).
For example, in Ross v. State, 53 Md. App. 397, 453 A.2d 828
(1983), the defendant was represented by counsel throughout the
trial, but indicated a desire to deliver the closing argument
himself after all the evidence was presented.
Id. at 398, 453 A.2d
The trial court denied the request, and the Court of
Special Appeals affirmed the decision.
The intermediate appellate
court distinguished other cases where the "request by the accused
to represent himself came prior to the beginning of the trial" and
concluded that there was "no abuse of the trial judge's judicial
discretion in his denial of the appellant's request to give his
closing argument to the jury pro se." 53 Md. App. at 401, 453 A.2d
In Johnson v. State, 44 Md. App. 515, 411 A.2d 118 (1980), at
the conclusion of the State's evidence, defense counsel indicated
that the defendant wished to discharge him.
Id. at 521, 411 A.2d
The court denied the request, and the Court of Special
Although the intermediate appellate court found
that the defendant did not "clearly and unequivocally" indicate a
did not attempt to discharge counsel until after the State began to
present evidence. As stated in Section III.A, supra, if the right
to defend pro se is asserted in a timely and unequivocal fashion,
the request ordinarily should be granted absent exceptional
See Fowlkes, 311 Md. at 589, 536 A.2d at 1151.
When the Faretta right is timely asserted, Rule 4-215 applies;
however, as we shall explain infra, in the present case, the right
was not timely asserted. See infra Section V.
-15desire to represent himself, the court also stated that:
Faretta v. California, supra, held that
there is a constitutional right to selfrepresentation. Snead v. State, 286 Md. 122
(1979), held that when a defendant expresses a
desire to represent himself before the trial
begins, the trial judge must conduct an
inquiry to determine that (a) his request is
made "clearly and unequivocally" and (b) he is
"knowingly and intelligently" foregoing his
right to counsel.
Faretta and Snead, therefore, do not
affect the established rule that replacement
of counsel during the course of a trial is a
matter of discretion left to the trial court,
United States v. DiTommaso, 405 F.2d 385, 393
(C.A. 4th Cir. 1968), cert. denied, 394 U.S.
934 (1969), and absent a showing of cause,
such a request is properly denied. State v.
Renshaw, 276 Md. 259, 270 (1975); Wright v.
State, 32 Md. App. 60, 62 (1976), cert.
denied, 278 Md. 740 (1976).
In this case, there was no showing of
prejudice and the motion was properly denied.
Id. at 524, 411 A.2d at 123.
We agree with the conclusion reached by the Court of Special
Appeals in Ross and in Johnson, that the decision to permit
discharge of counsel after trial has begun is within the sound
discretion of the trial court.
The majority of other appellate courts that have considered
the issue have also concluded that after trial has commenced, the
decision whether to permit a defendant to discharge counsel rests
-16within the sound discretion of the trial court. See, e.g., United
States v. Michelson, 559 F.2d 567, 572 (9th Cir. 1977); Sapienza,
534 F.2d at 1010;
State v. LaBare, 637 A.2d 854, 855 (Me. 1994);
State v. Robinson, 227 Conn. 711, 631 A.2d 288, 297 (1993); State
v. Ronne, 458 N.W.2d 294, 299-300 (N.D. 1990); Works v. State, 266
Ind. 250, 362 N.E.2d 144, 147 (1977); Commonwealth v. Miskel, 364
Mass. 783, 308 N.E.2d 547, 552 (1974); State v. Heaps, 87 Or. App.
489, 742 P.2d 1188, 1189 (1987).
Thus, the procedural requirements
triggered by a defendant's decision to dismiss counsel differ
depending on when the decision is made.
For example, in Works v. State, 266 Ind. 250, 362 N.E.2d at
147, the Supreme Court of Indiana addressed two related discharge
of counsel issues.
First, on the day before trial, after the
defendant had been represented by counsel for a number of months,
he requested permission to hire substitute counsel.
The appellate court concluded that this
decision was not an abuse of discretion, because although the
defendant had a constitutional right to an attorney of his choice
if he could afford to employ one,
the right can only embrace a reasonable
opportunity to obtain such representation, and
we find no denial of such opportunity. Trial
was imminent; the defendant had had prior
continuances for such purpose, and the trial
date had been determined three months earlier.
Appointed counsel was prepared and ready.
There was no claim of any lack of opportunity
-17. . . The [decision not to]
continuance . . . was within
discretion of the trial court.
Id. at 147.
Accord People v. Langley, 226 Ill. App. 3d 742, 589
N.E.2d 824, 828 (1992) ("Whether defendant's right to select
counsel unreasonably interferes with the administration of the
judicial process depends on the facts and circumstances of each
substitute counsel will not be overturned absent an abuse of
At trial during the State's case-in-chief, the defendant in
The trial court denied the request.
Supreme Court affirmed, stating that:
The right of a defendant in a criminal case to
act as his own lawyer is unqualified if evoked
prior to the start of the trial . . . Once the
trial has begun with the defendant represented
by counsel, however, his right thereafter to
discharge his lawyer and to represent himself
is sharply curtailed. There must be a showing
that the prejudice to the legitimate interests
of the defendant overbalances the potential
disruption of proceedings already in progress,
with considerable weight being given to the
trial judge's assessment of the balance.
Id. (quoting United States v. Catino, 403 F.2d 491 (2d Cir. 1968),
cert. denied, 394 U.S. 1003 (1969)).
Accord McConnell v. Mankato,
456 N.W.2d 278, 279 (Minn. Ct. App. 1990); Commonwealth v. Miller,
6 Mass. App. Ct. 959, 383 N.E.2d 1144, 1146 (1978).
The federal courts that have considered the issue have also
-18left the decision to permit or refuse discharge of counsel after
trial has begun to the sound discretion of the trial courts.
e.g., United States v. Gallop, 838 F.2d 105, 107-08 (4th Cir.
1988), cert. denied, 487 U.S. 1211 (1988); United States v. Dunlap,
577 F.2d 867, 868 (4th Cir. 1978), cert. denied, 439 U.S. 858
In Gallop, the United States Court of Appeals for the
Fourth Circuit stated:
The determination of whether or not the motion
for substitution of counsel should be granted
is within the discretion of the trial court
and the court is entitled to take into account
proceeding on schedule.
In evaluating whether the trial court
counsel, the First and Ninth Circuits have
held that the appellate courts should consider
the following facts:
Timeliness of the
motion; adequacy of the court's inquiry into
the defendant's complaint; and whether the
attorney/client conflict was so great that it
had resulted in total lack of communication
preventing an adequate defense.
838 F.2d at 108 (citations omitted).8
Courts differ on the exact point in time when the right to
Although defense counsel in Gallop indicated that his
relationship with the defendant had "entirely broken down," the
court concluded that the trial judge did not abuse his discretion
in denying the request to substitute counsel, because the court had
conducted an adequate inquiry, and because the record did not
indicate a "total lack of communication." 838 F.2d at 109.
example, that requests to proceed pro se are per se untimely if
asserted after the jury has been selected.
See Denno, 348 F.2d at
Other jurisdictions have established impanelment of the jury
as the "cut-off" point.
See, e.g., Fritz v. Spalding, 682 F.2d
782, 784 (9th Cir. 1982); Price, 474 F.2d at 1227.
have held that requests are untimely if asserted after "meaningful
trial proceedings have commenced."
See United States v. Lawrence,
605 F.2d 1321, 1325 (4th Cir. 1979) (quoting Dunlap, 577 F.2d at
868), cert. denied, 444 U.S. 1084 (1980).
We agree with the view
expressed by the United States Court of Appeals for the Fifth
Circuit in Chapman v. United States, 553 F.2d 886 (5th Cir. 1977),
A defendant must have a last clear chance to
assert his constitutional right.
must be a point beyond which the defendant
forfeits the unqualified right to defend pro
se, that point should not come before
meaningful trial proceedings have commenced.
We have not entered the age of "stop-watch
Id. at 895.
Thus we believe the better approach is to assess
whether "meaningful trial proceedings have commenced," rather than
Lawrence, 605 F.2d at 1325 & n.2.
See also Lyons v. State, 106
Nev. 438, 796 P.2d 210, 214 (1990); People v. Windham, 137 Cal.
Rptr. 8, 560 P.2d 1187, 1191 n.5 (1977), cert. denied, 434 U.S. 848
-20(1977);9 People v. White, 9 Cal. App. 4th 1062, 12 Cal. Rptr. 2d
122, 128 n.8 (Ct. App. 1992); People v. Mogul, 812 P.2d 705, 708
(Colo. Ct. App. 1991) (declining to adopt per se rule that day-oftrial request to defend pro se is timely or untimely).
As stated at the outset, Maryland Rule 4-215 is designed to
protect both the right to counsel and the right to proceed pro se.
See Leonard v. State, 302 Md. 111, 122, 486 A.2d 163, 168 (1985);
see also Parren v. State, 309 Md. 260, 277-78, 523 A.2d 597, 605
(1987). The Rule ensures that decisions to discharge counsel
comport with constitutional requirements.
See Fowlkes, 311 Md. at
As the California Supreme Court noted in Windham, the
timeliness requirement "must not be used as a means of limiting a
defendant's constitutional right of self-representation." 560 P.2d
at 1191 n.5.
The requirement is only designed to prevent the
defendant from "unjustifiably delay[ing] a scheduled trial or . .
. obstruct[ing] the orderly administration of justice." Id. The
Windham court thus provided for some exceptions to the timeliness
rule, stating that:
There may be other situations in which a
request for self-representation in close
proximity to trial can be justified. When the
lateness of the request and even the necessity
of a continuance can be reasonably justified,
the request should be granted.
-21606, 536 A.2d at 1159; Parren, 309 Md. at 280, 523 A.2d at 606-06;
Leonard, 302 Md. at 122, 486 A.2d at 168.
In this case, we are
asked to consider whether the procedural requirements of Rule 4-215
apply only to decisions to dismiss counsel made prior to trial or
at the beginning of trial, or if the Rule also applies after trial
This is an issue of first impression.10
With regard to a defendant's right to discharge counsel, Rule
Although some dicta in our earlier decisions relate to
timing, we have never before addressed the precise issue presented
in this case. For example, in Fowlkes v. State, 311 Md. 586, 536
A.2d 1149 (1988), we said that:
An accused who, at or shortly before trial and
without justification, insists on discharging
his counsel and demands the appointment of new
counsel, may properly be deemed to have waived
his right to counsel if he is sufficiently
informed in accordance with rule 4-215 so that
his discharge of counsel represents knowing,
intelligent, and voluntary action on his part.
Id. at 604, 536 A.2d at 1158 (emphasis added). Although the "at or
shortly before trial" language in Fowlkes might be interpreted to
suggest that Rule 4-215 applies throughout trial, Fowlkes did not
address this issue. Instead, Fowlkes held that under Rule 4-215(e)
"a defendant's unmeritorious refusal to proceed with current
counsel may constitute a waiver of the right to counsel, provided
the defendant acts knowingly and intelligently." Id. at 606, 536
A.2d at 1159. See also Snead v. State, 286 Md. 122, 132-33 & n.7,
406 A.2d 98, 103 & n.7 (1979).
In Williams v. State, 321 Md. 266, 582 A.2d 803 (1990), we
also addressed application of Rule 4-215. We held that where a
defendant indicates a desire to dismiss counsel at the outset of
the trial, the court's failure to inquire about the reason for the
dismissal as required by 4-215(e) constitutes reversible error.
Id. at 274, 582 A.2d at 807.
In this case, unlike Williams,
however, the defendant's request to discharge counsel occurred
after trial commenced.
-224-215(e) provides that:
discharge an attorney whose appearance has
been entered, the court shall permit the
defendant to explain the reasons for the
request. If the court finds that there is a
request, the court shall permit the discharge
of counsel; continue the action if necessary;
and advise the defendant that if new counsel
does not enter an appearance by the next
scheduled trial date, the action will proceed
to trial with the defendant unrepresented by
If the court finds no meritorious
reason for the defendant's request, the court
may not permit the discharge of counsel
without first informing the defendant that the
trial will proceed as scheduled with the
defendant unrepresented by counsel if the
defendant discharges counsel and does not have
If the court permits the
defendant to discharge counsel, it shall
comply with subsections (a)(1)-(4) of this
Rule if the docket or file does not reflect
The Rule creates a three-step process for discharge of counsel.
First, when the defendant indicates a desire to dismiss counsel,
the court must provide an opportunity for the defendant to explain
the reason for dismissal.
Second, the court must evaluate the
reason to determine if it is meritorious.
If the reason is
meritorious, the court must permit dismissal, continue the case if
necessary, and warn the defendant that he or she may be required to
proceed pro se if new counsel is not engaged by the next trial
If the reason for dismissal is not meritorious, however, the
court must engage in a third-level inquiry.
The court may still
permit dismissal of counsel, but only after warning the defendant
-23of the possibility he or she will proceed pro se if substitute
counsel is not secured.
The court may also reject the defendant's
request to dismiss counsel if the reason is not meritorious.
When the court permits a defendant to discharge counsel, other
provisions of Rule 4-215 will also be triggered.
First, the court
must satisfy the procedural requirements of Rule 4-215(a)(1)-(4),
i.e., (1) ensure that the defendant received the charging document
including notice of the right to counsel; (2) inform the defendant
defendant of the nature of the charges and the possible penalties;
and (4) conduct a waiver inquiry as provided by Rule 4-215(b) if
the defendant wishes to proceed pro se.
Under part (b), the court
must determine that any decision to waive the right to counsel is
"knowing and voluntary," in accord with the standard articulated by
the Supreme Court in Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.
Ct. 1019, 82 L.Ed 1461 (1938).
As explained in Section III.B, supra, the right to substitute
counsel and the right to self-representation are, of necessity,
curtailed once trial begins.
After meaningful trial proceedings
have commenced, the decision to permit the defendant to exercise
either right must be committed to the sound discretion of the trial
Once trial begins, therefore, Rule 4-215 no longer governs,
although the court must still adhere to constitutional standards.
Furthermore, the history of Rule 4-215 supports our conclusion
-24that the Rule does not apply after trial begins.
The original rule
regarding waiver of the right to counsel was Rule 719, which stated
If, at any stage of the proceeding, an accused
indicates a desire or inclination to waive
representation, the court shall not permit
such a waiver unless it determines, after
appropriate questioning in open court, that
the accused fully comprehends: (i) the nature
of the charges and any lesser-included
offenses, the range of allowable punishments,
and that counsel may be of assistance to him
in determining whether there may be defenses
to the charges or circumstances in mitigation
thereof; (ii) that the right to counsel
includes the right to the prompt assignment of
an attorney without charge to the accused, if
he is financially unable to obtain private
counsel; (iii) that even if the accused
intends to plead guilty, counsel may be of
substantial value in developing and presenting
material which could affect the sentences; and
(iv) that among the accused' s rights at trial
are the right to call witnesses in his behalf,
the right to confront and cross-examine
witnesses, the right to obtain witnesses by
compulsory process, and the right to require
proof of the charges beyond a reasonable
Rule 719 was amended and renumbered as Rule
723; Rule 723 was subsequently redesignated as Rule 3-305, and
later as Rule 4-215.
Leonard, 302 Md. at 122 n.2, 486 A.2d at 168
The current rule, 4-215, omits the "at any stage of the
The same language was used in Maryland District Rule
726(a), which required a full-scale waiver inquiry whenever "a
defendant appears in court at any stage of a criminal proceeding,
including a preliminary hearing, and is not represented by counsel
. . . ." See Green v. State, 286 Md. 692, 695, 410 A.2d 234, 236
(1980). Rule 4-215(c) is in part derived from Rule 726.
-25proceedings" language from the original rule.
By omitting this
phrase, it is clear to us that the procedural requirements of 4-215
were not intended to apply in every situation where a defendant
The focus of the Rule was progressively narrowed
to concentrate on early-stage decisions to dismiss counsel.
In addition, requiring trial courts to adhere to the Rule
procedural obstacles to an efficient trial.
For example, if Rule
4-215(e) applied throughout the trial, it would require the court
to permit dismissal of counsel if the defendant could demonstrate
This interpretation would increase the risk of
disruption and jury confusion, consequently increasing the risk of
overwhelming weight of authority, which supports allowing trial
courts the discretion to determine whether discharge of counsel
should be permitted during trial.12
For all of the foregoing
By our interpretation of Rule 4-215, however, we do not
suggest that defendant's right to counsel is in any way diminished
after trial begins; unquestionably, a defendant has the right to
effective assistance of counsel throughout trial.
recognize the widely accepted limitation on the defendant's right
to obtain substitute counsel after trial commences. Although a
defendant may allege a reason for dismissal with some merit, such
as a personal conflict with counsel that interferes with
attorney/client communication, this may not warrant substitution of
counsel after trial is underway. See State v. Sheppard, 310 S.E.2d
173, 185-86. Furthermore, such an interpersonal conflict would
rarely amount to constitutionally "ineffective assistance" that
would deprive the defendant of the right to assistance of counsel.
-26reasons, we hold that Rule 4-215 applies up to and including the
beginning of trial, but not after meaningful trial proceedings have
Although we conclude that Rule 4-215(e) does not apply to
decisions to discharge counsel after trial has begun, the trial
court must determine the reason for the requested discharge before
deciding whether dismissal should be allowed.
While the trial
court has broad discretion, once trial has begun, to determine
whether dismissal of counsel is warranted, the court's discretion
is not limitless.
The court must conduct an inquiry to assess
whether the defendant's reason for dismissal of counsel justifies
any resulting disruption.
This inquiry must meet constitutional
See, e.g., Johnson v. Zerbst, 304 U.S. 458, 464-65, 58
S. Ct. 1019, 82 L. Ed 1461 (1938).
We acknowledge that there is little to guide the trial judge
proceedings, we suggest that the trial judge consider the following
factors in deciding whether to permit discharge of counsel during
(1) the merit of the reason for discharge; (2) the quality
Thus, the decision to permit substitution of counsel is properly
left to the trial court's discretion.
proceedings; (4) the timing of the request; (5) the complexity and
stage of the proceedings; and (6) any prior requests by the
defendant to discharge counsel.
See Sapienza v. Vincent, 534 F.2d
1007, 1010 (2d Cir. 1976); People v. Cummings, 18 Cal. Rptr. 2d
796, 850 P.2d 1, 57 (1993), cert. denied,
, 114 S. Ct.
1576 (1994); People v. Windham, 138 Cal. Rptr. 8, 560 P.2d 1187,
1191-92 (1977), cert. denied, 434 U.S. 848 (1977).
longer the defendant waits to request discharge of counsel, the
stronger the rationale must be to warrant counsel's dismissal.
evaluating trial court decisions on motions to dismiss counsel
during trial, we shall apply an abuse of discretion standard.
In this case, Respondent requested permission to dismiss his
counsel after the State had presented evidence in the case-in
Under the circumstances of this case, we conclude that
meaningful trial proceedings had commenced.
Rule 4-215 therefore
did not apply, and the decision to permit dismissal of counsel was
committed to the trial court's discretion.
The record reflects only a superficial inquiry by the trial
judge into the reasons for Respondent's request:
[DEFENSE COUNSEL]: Judge, may I interject for
a moment? I don't mean-[THE COURT]: . . . we have certain procedures
You will have an opportunity to be
I know we do.
It has nothing to do with
What is it?
dismiss me at this point in time.
For what reasons?
I guess on the advice of
You can't represent
him. You don't know nothing about his case,
We are in the middle of the
trial. We will proceed. Go ahead.
Am I --
You are still counsel, yes.
As indicated by this brief colloquy, the trial judge did not
determine whether defendant was attempting to assert his right to
proceed pro se or asking the court to appoint substitute counsel.
Although the court may consider similar factors, regardless of
which form of relief the defendant desired, the court should have
made this basic determination at the outset.
See supra note 6.
Once defense counsel advised the court of Respondent's desire
to discharge him, the court was required to afford Respondent an
opportunity to explain the reasons for his request.
-29between the court and defense counsel demonstrates that the trial
judge did not provide an opportunity for Respondent to explain his
desire to discharge counsel.
Defense counsel's speculation that
Respondent's request was based on the "advice of his father" does
not provide an adequate explanation of Respondent's reasons.
Respondent's reply, not that of his father, that ordinarily would
be relevant to determine whether or not the discharge should be
permitted, because the right to counsel and the right to selfrepresentation are personal rights.
See Faretta, 422 U.S. at 819.
discharged may not be imputed to Respondent.
The trial court was
obligated to inquire further into the substance of Respondent's
dissatisfaction with his counsel.13
Based on the limited record and Respondent's prior motion
for a continuance, we infer that the crux of defendant's father's
complaint was counsel's inadequate preparation.
We can not
determine from the record whether the trial court treated this as
the basis for its decision, rejecting the motion based on counsel's
performance up to that point in the proceedings. As the United
States Court of Appeals for the Third Circuit stated in United
States v. Welty, 674 F.2d 185 (3d Cir. 1982):
It is vital that the . . . court take
responsibility to conduct these inquiries
concerning substitution of counsel and waiver
Perfunctory questioning is not
Id. at 187 (emphasis added).
Furthermore, although the trial court need not state all its
reasons for denying defendant's request to discharge counsel,the
-30The State asserts that the trial court's refusal to permit
dismissal was not an abuse of discretion because Respondent never
personally explained the reasons for his request to discharge
The onus, however, is not on Respondent to interrupt a
explanation, but rather the responsibility is on the trial judge to
ensure that the reason for requesting dismissal of counsel is
See People v. Marsden, 84 Cal. Rptr. 156, 465 P.2d 44,
Although the trial judge need not engage in a full-
scale inquiry pursuant to Rule 4-215, the judge must at least
consider the defendant's reason for requesting dismissal before
rendering a decision.14
We conclude that the trial judge abused his
discretion by failing to consider the defendant's reason for
seeking to dismiss counsel.
JUDGMENT OF THE COURT OF SPECIAL
better practice is for the trial court to provide a sufficient
rationale for its denial of substitution or pro se defense on the
record to facilitate appellate review. See, e.g., Lyons v. State,
106 Nev. 438, 796 P.2d 210, 214-15 (1990); People v. Windham, 137
Cal. Rptr. 8, 560 P.2d 1187, 1192 & n.6 (1977), cert. denied, 434
U.S. 848 (1977).
Although the record does not reflect an unequivocal
assertion of the right to defend pro se, the defendant might have
articulated such a request if the trial judge had properly
proceeded to explore the reasons for dismissing counsel. Because
we conclude the trial court's failure to make this inquiry
constituted an abuse of discretion, however, we need not reach the
issue of whether Brown unequivocally asserted his Faretta right.
-31APPEALS AFFIRMED. CASE REMANDED TO
THE CIRCUIT COURT FOR WICOMICO
COUNTY FOR A NEW TRIAL. COSTS TO BE
PAID BY WICOMICO COUNTY.