State v. Bean

Annotate this Case
State v. Bean (96-642); 171 Vt. 290; 762 A.2d 1259 

[Filed 20-Oct-2000]

  NOTICE:  This opinion is subject to motions for reargument under V.R.A.P.
  40 as well as formal  revision before publication in the Vermont Reports. 
  Readers are requested to notify the Reporter of  Decisions, Vermont Supreme
  Court, 109 State Street, Montpelier, Vermont 05609-0801 of any  errors in
  order that corrections may be made before this opinion goes to press.


                                 No. 96-642


State of Vermont	                         Supreme Court

                                                 On Appeal from
     v.	                                         District Court of Vermont,
                                                 Unit No. 1, Rutland Circuit

Ronald Matthew Bean	                         March Term, 1999



Francis B. McCaffrey, J.

Peter R. Neary, Rutland County Deputy State's Attorney, Rutland, for 
  Plaintiff-Appellee.

Charles S. Martin of Martin & Associates, Barre, for Defendant-Appellant.


PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ., and Jenkins, Supr. J., 
          Specially Assigned


       DOOLEY, J.   Defendant, Ronald Bean, appeals from a conviction for
  kidnapping and  violation of an abuse prevention order, arising out of an
  incident on February 18, 1993 in which he  restrained, Judith Bean, his
  mother, in her home and threatened to kill her.  He argues that the trial 
  court erred in failing to find him incompetent to stand trial and to allow
  him to represent himself.   We agree that in order to prevent assertion of
  an insanity defense defendant should have been able to  represent himself.
  We reverse and remand.

       To evaluate defendant's claims on appeal, we begin with a history of
  the lengthy proceedings  below. On February 18, 1993, Rutland City Police
  arrested defendant for violation of an abuse  prevention order protecting
  his mother.  At the initial appearance on February 22, 1993, the State 

 

  charged defendant with violation of the prevention order and kidnapping. 
  Defendant indicated to the  court that he wished to proceed pro se until he
  could consult with an out-of-state attorney, and then  attempted to enter a
  guilty plea to both charges.  The court refused to accept the pleas and
  assigned  defendant a public defender until his competency to waive his
  right to counsel could be evaluated.

       In the months after the initial appearance, defendant continued to
  insist that he be allowed to  represent himself.  He underwent several
  psychiatric evaluations.  In a competency hearing in  September 1993, the
  court found defendant competent to stand trial.  The examining psychiatrist 
  testified that defendant is "gamey" and has a "manipulative flair," making
  statements that he is Jesus  Christ or God, for example, for shock value,
  and tries to manipulate the system in what he perceives  to be his own
  interests.  The psychiatrist also testified that defendant's failure to
  cooperate with  defense counsel was due to his own calculated choice, and
  not the result of delusional thoughts or  emotional disturbance.  He
  explained that defendant did not want to use an insanity defense because 
  he did not want to be in a mental hospital.  He called this a calculated
  choice "not based on any  problem in his thinking, delusional thoughts or a
  mood such as a depression."

       In the course of the hearing, the psychiatrist requested that he be
  given access to defendant's  past treatment files.  Defendant interjected:

    I object to him receiving such information . . . .  I don't want
    to be  found insane.  I don't want this man having that
    information that  could possibly have me found insane.  Your
    honor, I broke my neck  to get out of a mental institution.  I am
    not going to go through the  chance of having that happen again. 
    I'd rather be in jail, even it is for  the rest of my life.

  At the conclusion of the hearing the court ruled orally that defendant was
  competent.  At that time  defendant indicated that he wished to be
  represented by the court-appointed public defender after 

 

  all, and the court granted that request.

       In July 1994, the assigned public defender moved to withdraw as
  counsel citing  "irreconcilable differences" between counsel and defendant. 
  The motion was granted, and new  counsel was assigned.  The court also
  granted defendant's motion to suppress statements he made at  the initial
  appearance, a motion filed by the original defense counsel.  An
  interlocutory appeal of that  ruling to this Court resulted in an
  affirmance of the suppression order, see State v. Bean, 163 Vt. 457,  658 A.2d 940 (1995), and a delay of almost a year in the trial court.  During
  the period that the case  was on review in the Supreme Court, new counsel
  attempted to withdraw at defendant's request, but  the motion was denied.

       In May 1995, counsel for defendant requested another competency
  hearing, against the  wishes of his client.  The court-appointed
  psychiatrist once again found defendant competent to stand  trial and
  further testified the defendant was sane at the time of the offense.  A
  psychologist testifying  for the defendant claimed defendant was not
  competent to stand trial.  The court found defendant to  be competent.  In
  its written opinion, the court relied on the opinion of the court-appointed 
  psychiatrist that defendant overlays psychiatric symptomatology at will,
  without being in fact  mentally ill.  The court found that defendant uses
  psychiatric symptoms to obtain his own goals.

       On November 20, 1995, defense counsel filed a notice pursuant to
  V.R.Cr.P. 12.1(a) that  defendant may raise the defense of diminished
  capacity, the first formal notice of the use of a mental  impairment
  defense.  At a status conference before trial, defense counsel again raised
  the issue of  defendant's competency.  On the day before defendant's trial,
  the court ordered another competency  evaluation.  At that time,
  defendant's counsel told the court that defendant refused to assist him in 
  preparation of the defense and had not talked to counsel about the offense
  in any manner.  Further, 

 

  counsel stated:

    I have concern about his competency at the time, or right now.  He 
    has also instructed me not to use an insanity defense which is in
    fact  the defense in this case . . . .  And he has expressed that
    if we were  going to use an insanity defense, that he would want
    to proceed pro  se, and that he would not need a lawyer.

  He then formally gave notice "that this is an insanity defense case."

       The hearing on defendant's competency was held the next day.  The
  doctor appointed by the  court testified that the defendant did not want to
  pursue the insanity defense and was displeased with  his defense counsel,
  but that he felt he would be able to cooperate with defense counsel to the
  extent  "required by the court."  The court found, based on the doctor's
  conclusion, that defendant was  competent to stand trial.  In its written
  opinion, the court again found that although defendant was at  times
  delusional, he was also intentionally obstructionist and uncooperative, and
  that the effects of  his delusions did not rise to the level of impairing
  his capacity to understand the proceedings against  him or assist in his
  own defense.

       The trial proceeded, and during the second day, while defense counsel
  was cross-examining a  witness, defendant tried to interrupt this
  questioning when it became obvious defense counsel was  still pursuing the
  insanity defense.  The court would not allow this interruption.  The
  following day,  after the state rested, defendant made a motion to proceed
  pro se claiming that his lawyer had not  represented his interests.  When
  the court denied that motion, defendant asked to be excused from  the
  courtroom and did not return during the duration of the trial. 
  Arrangements were made to place  defendant in a room outside the courtroom
  with a closed circuit television to observe the  proceedings.  Apparently,
  he did not watch the television set.

       Defendant first argues that the record shows that he was incompetent
  to stand trial as a matter 

 

  of law, and the trial court erred in not concluding so.  We agree that a
  defendant incompetent to stand  trial may not be tried.  See 13 V.S.A. §
  4817(a); Godinez v. Moran, 509 U.S. 389, 396-98 (1993).  In  order to be
  found competent to stand trial, a defendant must have "sufficient present
  ability to consult  with his lawyer with a reasonable degree of rational
  understanding" and "rational as well as factual  understanding of the
  proceedings against him."  Dusky v. United States, 362 U.S. 402, 402
  (1960).   Our statutes provide extensive procedures governing the
  determination of competency to stand trial.   Defendant does not contest
  the procedural regularity of the competency determinations in this case.  
  Instead, he argues that despite the mental health evaluations that found
  him competent, his conduct  was so bizarre that it showed him to be
  incompetent. 

       His argument is based largely on State v. Pollard, 163 Vt. 199,
  205-06, 657 A.2d 185, 189-90  (1995), in which we found a determination
  that defendant was competent to be erroneous even  though it was supported
  by the opinion of the examining physician that defendant had a factual 
  understanding of the charges and of the trial functions of the court and
  its officers.   We held that  defendant's garbled manner of speech, his
  refusal to take his lawyers' advice, and his bizarre behavior  precluded a
  finding that he had sufficient ability to consult with his lawyer with a
  reasonable degree  of rational understanding. Id. at 206, 657 A.2d  at 190.  

       In evaluating defendant's argument, we stress that it is the trial
  court's responsibility, in the  first instance, to evaluate the evidence
  and to determine whether defendant's competency meets the  constitutional
  standard.  See 13 V.S.A. § 4817(b).  If the court's findings are supported
  by credible  evidence and not clearly erroneous, they must be upheld.  See
  State v. Thompson, 162 Vt. 532, 535,  650 A.2d 139, 141 (1994).  In
  reaching its conclusion, the court may consider its observations of the 
  demeanor of the defendant.  See id.  

 

       In this case, there was evidence to support the court's finding that,
  despite defendant's bizarre  behavior, he was competent to stand trial. 
  Defendant was evaluated several times by various  physicians.  Unlike the
  evidence in Pollard, the physicians testified that defendant had a
  rational,  rather than merely a factual, understanding of the proceedings
  against him.  More important, the  mental health evidence suggested how to
  reconcile defendant's apparent bizarre behavior with a  conclusion
  defendant was competent.  The psychiatrist who performed evaluations on
  defendant in  March 1993, March 1995 and July 1995 found that defendant
  "preferred to drift into irrelevant,  personal or intrusive issues at
  times."  The doctor also found that defendant was "not delusional  although
  he wished to appear that way," and that he "appeared interested in
  entertaining himself  through the interview."  He testified that defendant
  used psychiatric symptomatology to manipulate  the system.

       A psychologist who testified for the defense found that defendant
  understood the roles of the  participants in the legal process; however,
  the psychologist had concern over defendant's ability to  cooperate with
  counsel.  Other evaluators found that defendant was able to cooperate with
  counsel,  but might choose not to when he felt it was in his own interest.  

       In the 1995 competency determination, the court relied on the opinion
  of the psychiatrist  appointed to conduct the competency evaluation.  The
  court found that defendant used "flamboyant  symptoms" to obtain his own
  goals and such symptoms were not the result of mental disease or  defect. 
  It concluded that defendant's failure to cooperate with counsel was the
  result of a volitional  choice.  The 1996 competency determination is
  similar although based on the opinion of a different  psychiatrist.


       After a careful review of the record, we conclude that this case is
  much more like State v.

 

  Thompson and State v. Davis, 165 Vt. 240, 248, 683 A.2d 1, 6 (1996), two
  cases in which we upheld  a trial court's finding of competency, than like
  Pollard.  We conclude that the trial court's  determinations of competency
  are supported by its findings in each case, and its findings are  supported
  by the evidence.  There is no error in the competency determinations.

       Defendant's second claim of error is that the court should have
  granted his motion to dismiss  his counsel and to proceed representing
  himself.  The motion at issue came after the close of the  State's case and
  before defense counsel presented his witnesses in support of the insanity
  defense.   Defendant claims that the motion was made to prevent counsel
  from putting on an insanity defense.   Although defendant did not
  explicitly state this reason for his motion, the record overall supports 
  defendant's claim that counsel's pursuit of the insanity defense, and his
  refusal to present other  defense theories defendant supported, was the
  reason defendant asserted "I'm not being represented"  and sought to
  proceed pro se. (FN1)

 

       A criminal defendant has a constitutional right of
  self-representation.  See Faretta v.  California, 422 U.S. 806, 819 (1975);
  State v. Ahearn, 137 Vt. 253, 260, 403 A.2d 696, 701 (1979).   The right,
  however, must be invoked in a timely fashion.  See, e.g., United States v.
  Noah, 130 F.3d 490, 497 (1st Cir. 1997).  Although the United States
  Supreme Court has not spoken on the question,  most courts have held that
  the right to self-representation must be invoked before trial to be 
  considered timely per se.  See Lyons v. State, 796 P.2d 210, 214 (Nev.
  1990); State v. Fritz, 585 P.2d 173, 178 (Wash. Ct. App. 1978).  If
  invoked thereafter, the trial court has discretion on whether to  allow
  self-representation.  See State v. Fuller, 523 S.E.2d 168, 170 (S.C. 1999). 
  We have signaled  that we will follow this approach by holding that once a
  defendant appears pro se, the trial court has  discretion to decide whether
  to honor a request for appointment of counsel if it occurs during trial.  
  See State v. Wool, 162 Vt. 342, 351, 648 A.2d 655, 661 (1994).

 

       In the leading case of People v. Windham, 560 P.2d 1187 (Cal. 1977),
  the California  Supreme Court outlined a non-exclusive list of factors for
  trial courts to consider in deciding whether  to allow a motion to dismiss
  counsel and proceed pro se made during trial.  The court stated:

    When such a midtrial request for self-representation is presented
    the  trial court shall inquire sua sponte into the specific
    factors underlying  the request thereby ensuring a meaningful
    record in the event that  appellate review is later required. 
    Among other factors to be  considered by the court in assessing
    such requests made after the  commencement of the trial are the
    quality of counsel's representation  of the defendant, the
    defendant's prior proclivity to substitute counsel,  the reasons
    for the request, the length and stage of the proceedings,  and the
    disruption or delay which might reasonably be expected to  follow
    the granting of such a motion.  Having established a record  based
    on such relevant considerations, the court should then exercise 
    its discretion and rule on the defendant's request.

  Id. at 1191-92; see also State v. Brown, 676 A.2d 513, 525 (Md. 1996)
  (similar list of factors).   Although we stress that the relevant factors
  may vary from case to case, we adopt the approach of the  California court
  for use by the trial courts in the first instance and this Court on appeal.

       In this case the interchange between defendant and the court,
  representing the motion and  ruling, was very perfunctory, as follows:

    DEFENDANT:  I need to say something.  I understand it is my right 
    to defend myself as a defendant.  I do have something I need to
    say. 
    COURT:  I am going to deny the request, Mr. Bean.  I'm sorry.
    DEFENDANT: Your honor, I am again denied the ability to defend 
    myself as a United States citizen.  You're denying me my rights 
    according to the Constitution of the United States of America.  I
    was  not able to question the witnesses.  My competency has been
    in  question right from the very beginning.  My lawyer would not
    bring  up questions of competency of the witnesses.  In fact, my
    [original  defense lawyer's] prime concern was the witness's
    competency.  No  question of her competency has been brought up. 
    I don't believe my  attorney is handling my case with reliability
    of counsel.  I'm not being  represented. COURT: Anything you want
    to add?
    DEFENDANT: I've felt that way from the very beginning; I'm not 

 

    being represented.
                        	. . .

    DEFENDANT: Your honor, I'm not being represented.  Then I am 
    going pro se and represent myself. 
    COURT: I'm going to deny that motion, too.

  Consistent with the approach in Windham, we would normally be concerned
  whether the brief  interchange made a sufficient record to show that the
  court used its discretion and evaluated the  relevant factors.  Here, an
  examination of the entire record shows that defendant's dissatisfaction 
  with counsel was so dominated by his objection to the use of the insanity
  defense that this single  factor overwhelms all others. (FN2)  Thus, we
  must first address whether defense counsel had the  right to try the case
  exclusively on an insanity defense theory over defendant's objection.  The
  answer  to this issue will, in turn, determine our evaluation of how the
  court responded to defendant's motion  to represent himself.

       Our precedents have not directly answered whether the decision to
  pursue an insanity defense  ultimately rests with defendant or defendant's
  counsel.  In broad terms, the issue is whether the  decision to raise an
  insanity defense is one involving the objectives of representation, left to
  the  client, or the means of representation, properly exercised by the
  lawyer.  See Vermont Rules of Prof.  Conduct 1.2(a).  We must also consider
  this issue in light of defendant's right of self-representation.

       Although we have not addressed the issue directly, two decisions
  foreshadow our decision.   The first is State v. Davignon, 152 Vt. 209, 565 A.2d 1301 (1989), a case in which defense counsel  first gave notice of the
  use of an insanity defense, and then withdrew it in favor of a defense of 

 

  diminished capacity.  Defendant argued on appeal that in order that there
  be an effective waiver of an  insanity defense, the record must show that
  the decision was made voluntarily and intelligently by  the defendant. 
  Although we did not ground our decision on whether the defendant should
  control the  decision to rely on an insanity defense, our discussion of the
  issue assumed this to be true.  As one  reason for the decision, for
  example, we held that in the absence of record evidence of disagreement 
  between the lawyer and client, defendant's remedy, if any, lay in bringing
  a post-conviction relief  proceeding alleging ineffective assistance of
  counsel.  We noted:

    Here, defendant had experienced trial counsel, and there is
    nothing to  suggest that counsel was acting against the wishes of
    his client.  It  may be that further facts would establish that
    trial counsel's  representation was inadequate because of a
    failure to raise and pursue  an insanity defense.

  Id. at 221-22, 565 A.2d  at 1308.  

       The second is In re Trombly, 160 Vt. 215, 627 A.2d 855 (1993), in
  which after he was  convicted of attempted murder, petitioner sought
  post-conviction relief because his counsel insisted,  at his request, that
  the court not charge the lesser-included offense of manslaughter.  Relying
  upon  the American Bar Association Standards for Criminal Justice, and
  their commentary, we held that  "trial tactics . . . that directly relate
  to the crime upon which the jury may rest its verdict generally are  within
  the defendant's decisional control."  Id. at 218, 627 A.2d  at 857.  We held
  that the defendant  had the right to control whether an instruction on a
  lesser-included offense should be pursued, and  that defense counsel was
  not ineffective for following his client's direction.  See id. at 219-20,
  627 A.2d  at 857.

       Although the ABA Standards do not address the issue before us
  explicitly, their rationale  supports control of the decision to raise an
  insanity defense by defendant, rather than defense 

 

  counsel.  The Standards specify that the decision of "what pleas to enter"
  must be made by the  "accused after full consultation with counsel."  1
  American Bar Ass'n Standards for Criminal Justice  § 4-5.2(a)(i) (2d ed.
  1980).  Unlike many states, we do not require that a criminal defendant
  enter a  special plea of not guilty by reason of insanity. See State v.
  Lapham, 135 Vt. 393, 397, 377 A.2d 249, 251 (1977).  This is a matter of
  form over substance because our criminal procedure has most of  the
  features of a formal plea.

       Insanity is an affirmative defense.  13 V.S.A. § 4801(b).  A defendant
  raising an insanity  defense must give notice thereof on the date of the
  status conference, or ten days prior to trial,  whichever is sooner. 
  V.R.Cr.P. 12.1(a).  The defendant must provide with the notice the names
  and  addresses of the witnesses the defendant will call in support of the
  insanity defense.  See id. 12.1(b).   If the jury acquits because it found
  defendant insane at the time of the offense, it must state this  ground in
  its verdict.  See 13 V.S.A. § 4819.  A person acquitted by the jury based
  on a finding of  insanity automatically faces a mental health commitment
  hearing.  See id. § 4820(4).

       Under this procedure, notice of use of an insanity defense is
  essentially a plea of not guilty by  reason of insanity.  As the ABA
  Standards reflect, such a plea should be made by defendant, or by 
  defendant's counsel only with defendant's consent.

       There are additional reasons why we should allot the power to decide
  whether to defend on  insanity to defendant, rather than defendant's
  counsel.  Under the above procedures, an acquittal on  insanity will often
  lead to mental health commitment and institutionalization.  Defendant in
  this case  was aware of that consequence and, based on his personal
  experience, stated he would rather be in  prison than in a secure mental
  institution.  This is a choice that only defendant can make.

       We are also not unmindful of the stigma that an adjudication of mental
  illness entails.  See 

 

  In re M.D., 163 Vt. 130, 134, 655 A.2d 723, 725 (1994) (negative social
  consequences); State v.  Condrick, 144 Vt. 362, 364, 477 A.2d 632, 633
  (1984) (legal disabilities as well as social  stigmatization).  A criminal
  defendant may conclude that the stigma from a criminal conviction has  less
  long-term effect than the stigma of an involuntary commitment.

       Finally, we note that an insanity defense may be so inconsistent with
  a defense on the merits  of defendant's conduct as to make the latter
  impossible.  See generally A. Singer, The Imposition of  the Insanity
  Defense on an Unwilling Defendant, 41 Ohio St. L.J. 637, 637-39 (1980);
  Note, The  Right and Responsibility of a Court to Impose the Insanity
  Defense Over the Defendant's Objection,  65 Minn. L. Rev. 927, 944-46
  (1981).  In this case, initial defense counsel began preparing a defense 
  that appeared to be based on the unreliability of the testimony of the
  victim.  Trial defense counsel  wholly abandoned that defense, relying
  exclusively on the insanity defense.

       With only a few exceptions, the vast majority of courts which have
  considered the question  have held that the decision whether to raise an
  insanity defense lies with the defendant, as opposed to  the defendant's
  lawyer.  See United States v. Marble, 940 F.2d 1543, 1546-47 (D.C. Cir.
  1991);  Foster v. Strickland, 707 F.2d 1339, 1343 & n.3 (11th Cir. 1983);
  People v. Frierson, 705 P.2d 396,  401-05 (Cal. 1985); Jacobs v.
  Commonwealth, 870 S.W.2d 412, 418 (Ky. 1994); Treece v. State,  547 A.2d 1054, 1062 (Md. 1988); Commonwealth v. Simpson, 689 N.E.2d 824, 831 (Mass.
  App. Ct.  1998), rev'd on other grounds, 704 N.E.2d 1131 (Mass. 1999);
  People v. Morton, 570 N.Y.S.2d 846,  849 (App. Div. 1991); State v. Tenace,
  700 N.E.2d 899, 908 (Ohio Ct. App. 1997); State v. Felton,  329 N.W.2d 161,
  174 (Wis. 1983).  These decisions generally rely on one or more of the 
  considerations we have outlined above.  We join these courts and hold that
  the decision whether to  assert an insanity defense lies with defendant,
  and not defense counsel.  Under this rule, it was 

 

  improper for defense counsel to assert an insanity defense over defendant's
  objection in this case.

       In announcing this holding, we also emphasize what we are not
  deciding.  We are not  deciding whether the trial court may direct the
  presentation of an insanity defense over defendant's  objection.  On this
  question, the courts from other jurisdictions are more evenly divided. 
  Compare  United States v. Wright, 627 F.2d 1300 (D.C. Cir. 1980) with
  Frendak v. United States, 408 A.2d 364 (D.C. Ct. App. 1979); cf. In re
  Trombly, 160 Vt. at 219, 627 A.2d  at 857 (even though defendant  controls
  the decision whether to request a lesser-included-offense instruction,
  court may override  defendant's refusal of such an instruction if it "is so
  ill-advised that it undermines a fair trial"); see  generally D. Cohn,
  Offensive Use of the Insanity Defense: Imposing the Insanity Defense Over
  the  Defendant's Objection, 15 Hastings Const. L.Q. 295 (1988).  In any
  event, none of the judges who  presided in this case considered the merits
  of whether an insanity defense should have been  presented, although they
  honored defense counsel's choice in the face of defendant's objection.  We 
  do not believe this case raises the scope of the court's power.

       Further, we are not deciding whether a higher standard of competency
  must be met before a  defendant, found competent to stand trial, can
  knowingly and intelligently waive an insanity defense.  See, e.g., Frendak,
  408 A.2d  at 378 (court must determine that "defendant is capable of
  intelligently  refusing to make the defense"); Jacobs, 870 S.W.2d  at 418
  (even if a defendant is found competent to  stand trial, "he may not be
  capable of making an intelligent decision about his defense"); cf. State v. 
  Ahearn, 137 Vt. at 261, 403 A.2d  at 702 (in view of defendant's  experience
  and skill, Court does not  reach whether the standard of mental competency
  to waive counsel is the same as that to stand trial).  Defendant
  consistently presented a rational reason for rejecting an insanity defense. 
  Again, the trial  court did not explore this question.  At one point early
  in the 

 

  proceeding, when defendant was seeking to represent himself, the court took
  testimony on whether  defendant was competent to conduct his defense. 
  Before the court could rule, however, defendant  indicated he was satisfied
  with initial defense counsel and effectively withdrew his self-
  representation request.  As a result, the court never examined defendant's
  competency, except in  ruling on his competency to stand trial.  As
  described above, defendant's motion to remove trial  counsel was denied
  summarily with no examination of his competency to represent himself.

       However we view the forced imposition of the insanity defense in this
  case, we must  conclude that the conviction cannot stand.  Unlike Davignon,
  where we could not determine from the  record whether the insanity defense
  was waived by counsel without defendant's consent, here the  record of
  disagreement was clear.  In such a case, the forced imposition of the
  insanity defense over  defendant's objection is grounds for reversal of the
  conviction.  See Jacobs, 870 S.W.2d  at 418;  Treece, 547 A.2d  at 1063;
  State v. Jones, 664 P.2d 1216, 1223 (Wash. 1983).

       As we began this analysis, we must also judge the court's decision not
  to allow defendant to  represent himself.  In applying the Windham factors,
  the controlling factors must be the quality of  trial counsel's
  representation and the reason for the request.  We accord the trial court
  broad  discretion in evaluating the relevant factors.  That discretion is
  not, however, unlimited.  See State v.  Brown, 676 A.2d  at 525.

       Although the formal motion came late in the proceeding, the trial
  court knew that the insanity  defense was being forced on defendant and
  defendant objected to the use of this defense.  On the day  before trial,
  defense counsel explained the situation and that defendant would want to
  proceed pro se.  This information was consistent with defendant's position
  throughout the case.  Rather than acting at  that point, the court waited
  until the situation came to a head during the trial.

 

       We cannot fault defendant for the lateness of his attempt at
  self-representation.  He  consistently stated his position, and when he
  observed that he was being represented improperly, he  acted to prevent the
  improper representation.  Moreover, the court did not at that point explore
  the  other factors which would bear on whether defendant's request to
  proceed pro se should have been  honored.  For example, we have no record
  to determine what delay would have been caused by  discharge of counsel or
  its effect on defendant's ability to present a defense.  

       We hold that under the Windham factors, the trial court should have
  granted defendant's  motion to proceed pro se, in the absence of any other
  method of resolving the conflict between  lawyer and client, and, in any
  event, did not make an adequate record showing analysis of the  relevant
  factors.  See id. (court "must conduct an inquiry to assess whether the
  defendant's reason for  dismissal of counsel justifies any resulting
  disruption").  The failure of the court to honor defendant's  right of
  self-representation is also grounds for reversal.

       We cannot evaluate on this record whether other credible defenses
  existed and might have  been as effective as the insanity defense presented
  by counsel; nor can we evaluate what would have  happened if defendant had
  represented himself.  The errors here are "structural defects in the 
  constitution of the trial mechanism, which defy analysis by 'harmless
  error' standards."  Arizona v.  Fulminante, 499 U.S. 279, 309 (1991). 
  Accordingly, we must reverse defendant's conviction and  remand for a new
  trial.

       Reversed and remanded.



                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice



------------------------------------------------------------------------------
                                  Footnotes


FN1.  The dissent argues that because defendant never stated that he was
  dissatisfied with the use  of the insanity defense, and he challenged what
  his counsel failed to do rather than what he did, we  cannot conclude that
  his desire to represent himself was caused by the pursuit of the insanity
  defense  and must affirm since defense counsel was competent and entitled
  to control cross-examination of  the victim witness.  This view of the
  events is inconsistent with what actually occurred. First, as we stressed
  in the statement of facts, defense counsel informed the court at the 
  beginning of trial that defendant opposed the use of the insanity defense
  and would seek to proceed  pro se if defense counsel tried to use the
  defense.  Defense counsel said: "He also has instructed me  not to use an
  insanity defense, which in fact is the defense in this case."  He then gave
  formal notice  of the reliance on the insanity defense.  Thus, the court
  was on notice of the irreconcilable  breakdown in the attorney-client
  relationship and defendant's position in response to this breakdown. 
 
       Second, defendant's position was reinforced when defense counsel
  started his examination of  the victim.  Out of the hearing of the jury and
  defendant, defense counsel reiterated that defendant  did not want him to
  use the insanity defense, but wanted him instead to pursue
  cross-examination  that was inconsistent with his defense theory and "not
  consistent with his best interests at trial which  I think are within the
  purview of my decision-making as an attorney."  Defense counsel indicated
  he  feared for his safety because defendant threatened to attack him if he
  did not conduct the cross-examination as directed.

       Third, defense counsel did not try to impeach the victim through
  cross-examination as the  dissent suggests.  If believed, the victim's
  version of the events easily established the elements of the  crimes with
  which defendant was charged.  Defense counsel's examination of the victim
  did not try  to dispute or undermine any of the testimony she gave on
  direct examination.  The entire  examination of the victim was geared to
  show defendant's psychiatric history and the bizarre nature  of his conduct
  before and during the alleged offense, obviously to support defense
  counsel's claim  that defendant was insane during its commission.  The
  dispute that occurred between lawyer and  client during the victim's
  testimony was not over how to cross-examine the victim, a matter within 
  the control of the lawyer; it was fist and foremost over whether to
  cross-examine her at all.

       Fourth, defendant began during the cross-examination of the victim to
  object to his own  counsel's questions.  The court then stopped the
  proceeding sand talked with the lawyers at the  bench.  Defense counsel
  explained: "I guess this is an ongoing thing of him not wanting me to use 
  this defense."  The court indicated to defense counsel: "That's okay.  Do
  what you need to do." We emphasize these facts from the record to show that
  defense counsel kept telling the court  there was an irreconcilable
  difference on the use of the insanity defense, that defense counsel 
  intended to rely on the insanity defense, and that defendant wanted him
  fired if he used that defense.   Defendant simply acted as defense counsel
  described he would on at least three occasions.  The  conclusion is
  inescapable the defendant tried to fire defense counsel because of his use
  of the  insanity defense and not because of differences over how to conduct
  the cross-examination of the  victim.  

FN2.  The circumstances in this case are virtually identical to those that
  arose in United States  v. Kaczynski, the unabomber case.  See generally J.
  Newman, Doctors, Lawyers, and the  Unabomber, 60 Mont. L. Rev. 67 (1999).


------------------------------------------------------------------------------
                                 Dissenting


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 96-642


State of Vermont	                         Supreme Court

                                                 On Appeal from
     v.	                                         District Court of Vermont.
                                                 Unit No. 1, Rutland Circuit

Ronald Matthew Bean       	                 March Term, 1999



Francis B. McCaffrey, J.

Peter R. Neary, Rutland County Deputy State's Attorney, Rutland, for 
  Plaintiff-Appellee.

Charles S. Martin of Martin & Associates, Barre, for Defendant-Appellant.


PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ., and Jenkins, Supr. J., 
          Specially Assigned


       MORSE, J., concurring and dissenting.  I concur in the Court's
  decision that the trial  court's finding of competency was supported by the
  evidence and findings.  I disagree with its  conclusion that the court
  erred in denying defendant's motion to represent himself.  The record amply 
  demonstrates that the court acted  within its discretion in denying the
  motion.  Accordingly, I would  affirm the judgment in its entirety.

       An understanding of the self-representation issue requires a brief
  synopsis of the lengthy pre-trial proceedings.  Some of them were
  summarized in an earlier opinion arising out of the same case,  State v.
  Bean, 163 Vt. 457, 658 A.2d 940 (1995).  Defendant was arrested in February
  1993 for 

 

  violating an abuse prevention order protecting his mother.  At his initial
  court appearance, defendant  indicated that he would like to represent
  himself "[f]or now," but also indicated that he was seeking  access to "my
  proper counsel," allegedly an out-of-state attorney.  Id. at 459, 658 A.2d 
  at 942.  At his  arraignment several days later, defendant expressed an
  interest in proceeding pro se, but again  alluded to out-of-state counsel
  and indicated that he wanted to hold open the option of obtaining an 
  attorney.  The court subsequently appointed a  public defender until
  defendant's competency to stand  trial could be determined.  

       At the conclusion of a hearing in June 1993, defendant moved to
  proceed pro se.  At a  hearing on the motion several weeks later, defendant
  explained that he was not comfortable with the  assigned public defender,
  expressed an interest in standby counsel, and suggested a specific law
  firm.  The court kept the public-defender assignment, however, pending
  further proceedings.  In the  meantime, defendant's appointed counsel moved
  forward with discovery of medical records of  defendant's mother, who had
  been evaluated for competency and sanity in connection with unrelated 
  criminal charges, and also moved to suppress several incriminating
  statements made by defendant at  arraignment.  

       At the conclusion of defendant's competency hearing in September 1994,
  the court ruled that  defendant was competent to stand trial.  Defendant
  thereupon asserted that he was entitled to  representation by counsel of
  his choice, indicated that he wished to be represented by the assigned 
  public defender, but cautioned that he also wished to preserve for the
  future his choice of  representation.  Expressing dissatisfaction with
  delays resulting from the State's appeal of the court's  order granting
  defendant's motion to suppress, defendant moved, in July 1994, to remove
  the  assigned public defender, indicating that he had been in contact with
  an unidentified private attorney. 
 
 

  In August 1994, the court ordered a substitution of counsel, assigning a
  new attorney to the case,  who remained defendant's counsel of record
  through the remainder of the proceedings.    	  

       New counsel again raised the issue of defendant's competence to stand
  trial, and a second  competency hearing was held in August 1995.  The court
  again found that defendant was competent  to stand trial, which was set to
  commence in February 1996.  Just before trial, however, counsel  again
  questioned defendant's competence, and another competency hearing was
  scheduled just prior  to jury selection.  The evaluating psychiatrist
  testified that although defendant met the criteria for a  diagnosis of
  schizophrenia paranoid type, and demonstrated "unusually obstructionist"
  behavior  toward the trial proceedings he was nevertheless competent to
  stand trial.  The trial court again ruled  that defendant was competent.

       The State's first witness was defendant's mother.  Before she took the
  stand, defendant  indicated that he did not wish to be in the courtroom. 
  At the conclusion of the mother's direct  testimony, defense counsel
  informed the court that defendant wished to return to the courtroom to be 
  present for counsel's cross-examination.  Counsel also stated for the
  record that defendant had  "demanded that I do certain things during
  cross-examination that are not consistent with the trial  strategy that I
  have, and in my view [are] not consistent with his best interests at trial
  which I think  are within the purview of my decision making as an
  attorney."  During counsel's cross-examination  of the mother, defendant
  sought unsuccessfully to speak with counsel several times, called out 
  counsel's name after each question and answer in an apparent attempt to
  attract his attention, and  asked the court to allow him to cross-examine
  the witness, which the court denied.  Defendant  continued to interrupt the
  questioning during the State's re-direct.  

       After calling two more witnesses, the State rested.  Before the
  defense could proceed, 

 

  defendant informed the court that he was "still having trouble with
  assisting my counsel in my  defense.  He won't . . . . allow me to assist
  him in the defense."  The court inquired of defense  counsel whether there
  was anything he wanted to add.  Counsel indicated there was nothing.  
  Defendant then asserted that it was his right to defend himself. 
  Interpreting the statement as a  motion to proceed pro se, the court denied
  the request.  Defendant then argued that he was being  denied his
  constitutional right and ability to defend himself, stating:

    "I was not able to question the witnesses.  My competency has been 
    in question right from the very beginning.  My lawyer would not 
    bring up questions of competency of the witness.  In fact, my - 
    Patricia Lancaster's [the first assigned public defender] prime
    concern  was the witness's competency.  No question of her
    competency has  been brought up.  I don't believe my attorney is
    handling my case with  [the] reliability of counsel.  I'm not
    being represented."

       At the conclusion of defendant's statement, the court inquired whether
  there was anything he  wished to add.  Defendant responded: "I've felt that
  way from the very beginning; I'm not being  represented."  The court
  inquired of counsel whether there was anything he wanted to add.  Counsel 
  indicated there was nothing.  The court then denied the request.  Defendant
  thereupon asked to be  excused from the courtroom and did not return for
  the duration of the trial.

       Defendant now contends the trial court erred in denying his request to
  represent himself.  The  Court agrees, reasoning that "[a]lthough defendant
  did not explicitly state this reason for his motion .  . . counsel's
  pursuit of the insanity defense, and his refusal to present other defense
  theories  defendant supported, was the reason defendant asserted 'I'm not
  being represented' and sought to  proceed pro se."  Ante, at 7.  This
  conclusion provides the springboard for the Court's extended  discussion of
  the question of who controls the decision to pursue an insanity defense,
  and its ultimate  conclusion that because defendant had the right to
  control that issue, the self-representation motion 

 

  was wrongfully denied. 

       The flaw in the Court's reasoning, in my view, is its assumption that
  defendant's motion was  premised upon counsel's decision to pursue an
  insanity defense.  Yet the Court acknowledges that  defendant did not bring
  the motion on this basis.  Rather, the motion was grounded expressly upon 
  counsel's failure, in defendant's view, to adequately impeach the
  complainant's (defendant's mother)  competency, and his refusal to allow
  him to participate in the cross-examination of the witness.  The  essence
  of the motion, as defendant explained it, was that counsel would not "allow
  me to assist in  the defense . . . my lawyer would not bring up questions
  of competency of the witness."  Defendant  compared defense counsel's
  conduct to that of his former public defender, who, he asserted, had  made
  the mother's competency a "prime concern." 

       The events preceding the motion provide the context for defendant's
  action.  Immediately  before the witness's testimony, defense counsel
  expressly warned the court that defendant had  "demanded that I do certain
  things during cross-examination [of the mother] that are not consistent 
  with the trial strategy that I have."  Defendant then repeatedly attempted
  - without success - to  interrupt counsel's cross-examination, to attract
  counsel's attention, and to take over the cross-examination himself. 
  Plainly frustrated with counsel's failure to cooperate with his desires in
  this  regard, and with the trial court's refusal to allow him to conduct
  the examination on his own,  defendant moved to represent himself.    

       That defendant had often expressed a disinclination to pursue an
  insanity defense during   earlier proceedings is obvious from the record,
  but equally obvious is the fact that counsel had long  been inclined to
  proceed otherwise, and that issue had often been discussed.  Defendant had
  proven  his ability to make his views known, and there is no reason to
  assume that he was unable to raise the 

 

  insanity-defense issue had he so desired.  Thus, the real question before
  the trial court was whether a  motion made mid-trial to proceed pro se on
  the basis of defendant's dissatisfaction with counsel's  approach to the
  cross-examination of a State witness justified a decision to relieve
  assigned counsel  and allow defendant to represent himself through the
  remainder of the trial.  Viewed in light of the  factual circumstances and
  the relevant law, I believe that the court acted well within its discretion
  in  denying such a motion. (FN1)  

 

       As the Court correctly observes, the relevant considerations before a
  trial court in addressing  such a motion were cogently summarized by the
  California Supreme Court in People v. Windham,  560 P.2d 1187 (Cal. 1977). 
  As the court there explained, when a defendant has elected to proceed to 
  trial represented by counsel and trial has commenced, "it is thereafter
  within the sound discretion of  the trial court to determine whether such a
  defendant may dismiss counsel and proceed pro se."  Id. at  1189.  Factors
  which the court should consider in considering such a request "are the
  quality of  counsel's representation of the defendant, the defendant's
  prior proclivity to substitute counsel, the  length and stage of the
  proceedings, and the disruption or delay which might reasonably be expected 
  to follow the granting of such a motion."  Id. at 1191-92.  

       Here there was no issue concerning counsel's competence to represent
  defendant or, more  particularly, to cross-examine the witness in question. 
  Decisions concerning whether or how to  impeach the witness involved trial
  tactics within counsel's exclusive decisional control.  See In re  Trombly,
  160 Vt. 215, 218-19, 627 A.2d 855, 857 (1993) (apart from issues that
  directly relate to  crime upon which jury may rest its verdict, such as
  what plea to enter, whether to waive jury, and  whether to testify, trial
  tactics are ultimately defense counsel's call); 1 American Bar Ass'n
  Standards  for Criminal Justice § 4-5.2(b) (2d ed. 1980) (decision on what
  witnesses to call, whether and how to  cross-examine witnesses, and other
  tactical decisions are exclusive province of trial attorney).   Although
  defendant objected to counsel's cross-examination strategy, this was an
  area exclusively  within counsel's control, and there was nothing to
  suggest that counsel's cross-examination was  inadequate or below the
  standard of a competent attorney.  

 

       The court could also consider defendant's prior "proclivity to
  substitute counsel."  Windham,  560 P.2d  at 1191.  As the record summarized
  earlier demonstrates, defendant had made a regular  practice of moving to
  substitute counsel, and then equivocating and changing his mind.  The
  forensic  psychiatrist's observation that defendant was manipulative and
  obstructionist was amply borne out.   Thus, the court was justified in
  viewing the most recent motion with some skepticism.  

       Finally, the court had to consider the fact that the motion was
  brought after one change of  attorneys had already occurred, years of
  pre-trial proceedings had taken place, a jury had been  selected and trial
  had commenced.  In these circumstances, the potential for delay,
  disruption, or   error resulting from the removal of competent counsel and
  the appointment of defendant, strongly  militated against a decision to
  allow defendant to represent himself.  The court might even have  faced the
  prospect of dismissing the jury had defendant sought and obtained a
  continuance.  See id.  (court may consider length and stage of proceeding,
  and disruption or delay that may result from  granting motion).  

       Thus, all of the relevant factors supported the court's decision to
  deny the motion.  Although  the court did not, in this case, conduct an
  extensive sua sponte inquiry of defendant, such an inquiry  is not
  necessary where the defendant, or counsel, provides the court with
  sufficient information for  an informed decision.  See United States v.
  Padilla, 819 F.2d 952, 956 n.1 (10th Cir. 1987)  (affirming denial of
  defendant's motion to substitute counsel where defendant fully stated
  reasons for  request); McKee v. Harris, 649 F.2d 927, 932-34 (2d Cir. 1981)
  (court's failure to inquire into  request to substitute counsel found to be
  harmless where defendant otherwise stated his reasons).   The record
  reflects that defendant had no difficulty voicing his views and concerns in
  support of the  motion for self-representation, and that these concerns
  provided an insufficient basis to grant the 

 

  mid-trial motion.  Accordingly, I would affirm the judgment.  I am
  authorized to say that Judge  Jenkins joins in this opinion.
               


                                       _____________________________
                                       Associate Justice



--------------------------------------------------------------------
                                  Footnotes


FN1.  In a footnote, the Court asserts that this interpretation of the
  events surrounding   defendant's motion is inconsistent with what actually
  occurred at trial. The Court makes four points  in this regard.

       First, the Court reiterates the point that the trial court was on
  notice, from the beginning of  trial, of defendant's general opposition to
  the use of an insanity defense. This reinforces the Court's  argument that
  the unstated basis of the motion was counsel's reliance on the insanity
  defense.  It does  not, however, alter the fact that the motion was, in
  actuality, grounded on a different disagreement  with counsel, i.e., the
  conduct of counsel's cross-examination of the victim.

       The Court's second and third points suggest that defendant's objection
  to counsel's cross-examination of the victim was, in reality, an objection
  to his use of the insanity defense; that, in fact,  the dispute was not
  over "how" to cross-examine the witness, but "whether to cross-examine at
  all."   Ante, at 7 n.1. I do not believe the Court accurately characterizes
  what occurred.  Counsel informed  the court prior to the cross-examination
  that defendant had "demanded that I do certain things during 
  cross-examination that are not consistent with the trial strategy that I
  have."  This shows a  disagreement over how to cross-examine, not over
  whether to cross-examine. 

       Finally, the Court cites a statement by counsel suggesting that the
  "strategy" to which counsel  referred was his use of "this defense," i.e.,
  the insanity defense.  This was an off-hand remark by  counsel prior to a
  court-ordered break to allow counsel to consult with defendant.  After the
  break,  counsel actually explained for the record the basis of defendant's
  concern.  Counsel indicated that  defendant believed "angels" were
  "controlling" both the witness and defense counsel, and that  defendant
  further believed the angels would "would not allow me to do what I have to
  do, and I can't  represent him, and that he again wants to fire me. And
  it's the angels and the devils are conspiring  together."  Thus, the record
  discloses that defendant wished to conduct the cross-examination  himself
  because he believed counsel was being controlled by "angels and devils" and
  was therefore  ill equipped to represent him. Whatever these concerns may
  reveal about defendant's competence to  represent himself, they certainly
  do not support the Court's claim that defendant's objection to  counsel's
  cross-examination was, in reality, an objection to use of the insanity
  defense.