State v. Tribble

Annotate this Case
State v. Tribble (2003-073); 179 Vt. 235; 892 A.2d 232

2005 VT 132

[Filed 30-Dec-2005]


       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.


                                 2005 VT 132

                                No. 2003-073


  State of Vermont	                         Supreme Court

                                                 On Appeal from
       v.	                                 District Court of Vermont,
                                                 Unit No. 3, Caledonia Circuit

  Dennis P. Tribble	                         November Term, 2004


  Alan W. Cook, J.

  William H. Sorrell, Attorney General, and David Tartter, Assistant Attorney
    General, Montpelier, for Plaintiff-Appellee.

  Allison N. Fulcher of Martin & Associates, Barre, for Defendant-Appellant.


  PRESENT:  Dooley, Johnson, Skoglund and Reiber, JJ., and 
            Allen, C.J. (Ret.), Specially Assigned

       ¶  1.  SKOGLUND, J.   Defendant challenges his conviction for
  first-degree murder following a jury trial, claiming that the trial court
  erred by (1) finding defendant competent to stand trial, (2) permitting
  defendant's attorney to withdraw before jury selection, (3) allowing the
  trial to proceed in the absence of defendant, and (4) granting the State's
  objections to the Pre-Sentence Investigation Report.  We reverse.
   
       ¶  2.  This case presents the unusual circumstance of a criminal
  trial of an unrepresented defendant who chose not to attend his trial-in
  other words, a trial with nobody sitting at the defense table to defend
  against the charges.  The trial court, in the process of ultimately
  concluding that defendant validly surrendered his right to be present and
  to be represented by a court-appointed attorney, was forced to pick its way
  through a quagmire created by defendant's repeated insistence that he could
  not work with the attorneys appointed by the court to represent him.  The
  court's task was complicated further by defendant's apparent struggle with
  mental health issues, both at the time of the offense and during the
  pendency of the action.  As a result, the court took pains to evaluate and
  re-evaluate defendant's competence to stand trial, and to supply defendant
  with three different sets of appointed attorneys-all established,
  experienced, and highly competent members of Vermont's bar.  As the trial
  date approached, the court made clear to defendant that his failure or
  refusal to work with his third court-appointed attorney would leave him
  exactly two options-proceed to trial on schedule with an attorney he
  retained on his own or proceed without an attorney. 

       ¶  3.  Despite its exemplary diligence and patience, however, the
  trial court had one additional means at its disposal to test the validity
  of defendant's waiver of his right to counsel-conducting an on-the-record
  inquiry along the lines we described in State v. Merrill, 155 Vt. 422,
  425-26, 584 A.2d 1129, 1131 (1990).  Because the record does not reveal
  that such a colloquy between the court and defendant took place, we reverse
  the conviction.
   
       ¶  4.  Before we turn to the validity of defendant's waiver of
  counsel, in Section I we affirm the court's conclusion that defendant was
  competent to stand trial and/or waive any of his rights.  The trial court
  ordered an initial evaluation and a follow-up when defendant sought to
  remove his third attorney, and held a competency hearing immediately prior
  to trial.  The record that emerged from these proceedings supports the
  court's finding that defendant was competent.  Next, in Section II, we
  explain our reversal of the court's ruling that defendant validly waived
  his right to counsel. (FN1)

                  I.  Defendant's Competency to Stand Trial

       ¶  5.  The district court addressed defendant's competency at multiple
  junctures between the arraignment in late September 2000 and the trial in
  September 2002.  The issue first arose at a status conference on November
  20, 2000, when the State requested that any mental health issues be dealt
  with early in the case.  The court noted that there was a "serious issue"
  that defendant may have committed the crime "under some kind of delusions
  of a psychiatric nature," and agreed to revisit the issue of an evaluation. 
  At the next status conference, on December 18, 2000, the court ordered an
  evaluation for competency and sanity.  

       ¶  6.  Dr. Robert Linder conducted the evaluation and rendered a
  report dated January 29, 2001, concluding that "[a]n opinion that Dennis
  Tribble is mentally competent to stand trial for the alleged offense would
  find support."  Dr. Linder continued:

    [Defendant] has a good understanding of the charge.  He is able to
    assess the accuracy of that charge through his knowledge of the
    elements needed to show his guilt.  He is aware that his attorneys
    are representing him and that the State's Attorney will prosecute
    him.  He has some ideas about his possible defenses and realizes
    whom the state and his lawyers might call at trial to prove their
    cases.  He is aware that the judge will make the decision about
    his fate.  In a trial, he knows that a jury will stand in judgment
    and determine if he is guilty or not guilty.  He was able to
    understand the plea bargaining process.  He would be able to
    attend in court, to testify relevantly and to assist in
    cross-examination.

  Neither party asked the court for a ruling on competency at the hearing on
  February 12, 2001, although the court and counsel briefly discussed the
  report in the context of a potential insanity defense. 

       ¶  7.  Over a year later, after defendant requested that his third set
  of attorneys be dismissed, the court ordered a second competency evaluation
  during a July 2, 2002 telephone conference.  The court wanted Dr. Linder to
  do a "last-minute check . . . to see if there was anything new which had
  developed or come about that would cause me to conclude that [defendant]
  might not be competent to waive counsel."  Dr. Linder performed the
  evaluation, and, in his July 25, 2002 report, Dr. Linder determined that
  "[w]hile [defendant] demonstrates paranoia regarding events that led up to
  the shooting, his appreciation of the court process remains intact and has
  not been incorporated in any similar persecutory ideas."  Dr. Linder also
  recognized that because defendant's "personality is defined by a pervasive
  distrust and suspiciousness of others," he "may well" continue to
  experience difficulty working with new defense counsel.  Notwithstanding
  the above, he concluded that defendant was mentally competent to stand
  trial.  After receiving Dr. Linder's report, the court found defendant
  competent. 
   
       ¶  8.  On September 16, 2002, one day before jury selection was
  slated to begin, the court held a hearing in response to a defense motion
  to determine competency.  Dr. Albert Drukteinis, whom defense counsel had
  requested to perform an evaluation of defendant, opined that defendant was
  not competent to stand trial "because I don't think he's able to work with
  his attorney through the whole process of trial."  Specifically, Dr.
  Drukteinis testified that defendant suffered from a delusional disorder
  that made it impossible for him to cooperate with his lawyers.  He
  testified that defendant's failure to cooperate with his attorneys resulted
  not from his desire to be "obstructionistic," but "because he believes that
  the wrong path is being followed under his defense."  On cross-examination,
  and in his written report, Dr. Drukteinis acknowledged that defendant
  understood the charge and possible punishment, the role of the attorneys,
  judge, witnesses, and jury, the plea bargaining process, and his right not
  to be compelled to testify.  Echoing Dr. Linder, he recognized that
  defendant had, at least "[i]n a token way," agreed to pursue an insanity
  defense.  And finally, Dr. Drukteinis agreed that a competent professional
  psychiatrist could disagree with his diagnosis of a delusional disorder and
  therefore find defendant competent. 

       ¶  9.  Dr. Linder testified for the State.  Consistent with his two
  reports, he testified that defendant remained competent to stand trial.  He
  acknowledged that defendant's paranoid personality disorder made it
  difficult for him to cooperate with his attorneys, but that this challenge
  was "not one in my view that can't be achieved."  Dr. Linder also testified
  that defendant's unwillingness to pursue an insanity defense was not
  necessarily a product of his disorder because, in Dr. Linder's view,
  defendant did not have a strong insanity defense.  The court ruled that
  defendant was competent to stand trial, finding Dr. Linder's analysis more
  persuasive than Dr. Drukteinis's. 
   
       ¶  10.  We will not overturn a trial court's competency determination
  if it is supported by the court's findings, and if the findings in turn are
  supported by credible evidence and are not clearly erroneous.  State v.
  Marku, 2004 VT 31, ¶ 19, 176 Vt. 607, 850 A.2d 993.  To be competent to
  stand trial, a defendant must have "sufficient present ability to consult
  with his lawyer with a reasonable degree of rational understanding" and "a
  rational as well as factual understanding of the proceedings against him." 
  Dusky v. United States, 362 U.S. 402, 402 (1960); see also Marku, 2004 VT
  31, ¶ 18 (noting that the Dusky test is the standard for determining
  competency to stand trial and to plead guilty). As explained below, the
  court's conclusion that defendant was competent is based on findings which
  are supported by credible evidence.  Accordingly, we affirm the court's
  conclusion.

       ¶  11.  As described above, the court twice found defendant competent
  before the trial began: First, at the July 26, 2002 hearing, the court
  noted that it had reviewed the report and received it into evidence, and
  found defendant competent to stand trial.  Notably, Dr. Linder's second
  report reinforced the conclusions in his January 2001 report, to which no
  party had objected.  Then, at the September 16, 2002 competency hearing,
  after reviewing the reports and considering the testimony of Dr. Linder and
  Dr. Drukteinis, the court again ruled defendant was competent. 
  Specifically, the court found that defendant understood the charge, "has
  retained his factual and rational understanding of the proceedings," and
  "would be able to attend in court to testify relevantly and to assist in
  cross-examination."  The court also found that defendant "has the ability
  to make decisions . . . [and] has been making decisions all along.  He can
  choose to cooperate or not cooperate as he sees fit in one aspect of his
  defense or the other."  Acknowledging that defendant had difficulty
  collaborating with his court-appointed attorneys, the court found that
  defendant nonetheless had shown that he could change his position and
  tactics.  Ultimately, the court concluded that "[i]gnoring good advice and
  persisting in a folly for a defense is not a functional level of
  incompetence to stand trial." 
   
       ¶  12.  These findings are supported by the evidence the court
  amassed on this issue.  In particular, Dr. Linder's two reports and his
  testimony at the September 16 hearing fully support the court's findings. 
  Although Dr. Drukteinis's testimony and conclusions conflicted with Dr.
  Linder's, it was within the court's discretion to determine the credibility
  and the weight of the expert evidence before it.  "[T]he credibility of
  witnesses, weight of the evidence and its persuasive effect are matters for
  the exclusive determination of the trier of fact.  The ruling of the court
  must stand if supported by credible evidence, even though there may be
  inconsistencies or substantial evidence to the contrary."  Gilbert v.
  Davis, 144 Vt. 459, 461 (1984) (citation omitted).  Therefore, because Dr.
  Linder's reports and testimony support the court's findings, which in turn
  support its decision that defendant was competent, we now affirm that
  decision.
   
                           II.  Waiver of Counsel

       ¶  13.  By the time his trial began, defendant had discarded three
  sets of experienced court-appointed defense attorneys.  First, on September
  27, 2000, the day of his arraignment, defendant requested appointment of
  counsel.  The court granted the request, appointing attorneys Bradley
  Stetler and Ernest Allen to represent defendant.  On September 19, 2001,
  with trial scheduled to begin in early November, attorneys Stetler and
  Allen notified the court that defendant wanted to fire them.  Two days
  later, the court received a letter from defendant stating that he had fired
  his attorneys for not providing a vigorous and thorough defense.  At a
  hearing on September 24, 2001, defendant expressed to the court his
  dissatisfaction with his attorneys, and the court gave him two weeks to
  submit in writing his reasons for dismissing his attorneys.  The parties
  agreed that the November trial date was no longer realistic.
   
       ¶  14.  On October 2, 2001, defendant filed a letter with the court
  stating that he had decided to keep his attorneys, and reiterated that
  decision at a suppression hearing on October 18, 2001.  The November 5,
  2001 trial date was reinstated.  Less than a week later, on October 24,
  2001, defendant notified the court by letter that he again wished to fire
  his attorneys.  The court held a hearing on October 31 and agreed to
  discharge attorneys Stetler and Allen, warning defendant that "if further
  dissatisfaction develops with that [new] lawyer, then most probably you
  could end up having to defend this case yourself." 

       ¶  15.  Next, attorney John Pacht was appointed to represent
  defendant.  In April 2002, defendant wrote to the court expressing his
  dissatisfaction with attorney Pacht.  The case was reassigned to attorney
  David Sleigh.

       ¶  16.  On May 29, 2002, defendant filed a letter with the court
  requesting that Mr. Sleigh be dismissed and stating that "I will not ask
  for nor will I accept another lawyer from the Defender General.  I will
  find one elsewhere."  The court held a hearing on July 2, which defendant
  chose not to attend, to address defendant's request, and ordered defendant
  to be re-evaluated by Dr. Linder, to make sure there was no change in
  defendant's competency to stand trial and to waive counsel since Dr.
  Linder's first evaluation.  The court also scheduled a July 26 hearing to
  assess defendant's motion to dismiss his counsel in light of Dr. Linder's
  second evaluation.  

       ¶  17.  Defendant then moved to continue the July 26 hearing.  On July
  24, in the course of denying the continuance, the court observed that
  defendant "indicated quite clearly in writing that he doesn't want to be
  represented," and concluded that defendant was prepared to proceed "and
  tell his story the way he wants to tell his story."  The next day, July 25,
  attorney Sleigh's firm, Sleigh & Williams, filed a motion to withdraw,
  citing defendant's unwillingness to speak to attorney Sleigh or his
  partner, attorney David Williams, let alone assist them in preparing for
  trial. 
   
       ¶  18.  A day later, at the July 26 hearing, as noted above, the
  court again found defendant competent to stand trial.  The court also kept
  Sleigh & Williams in the case as standby counsel.  In summarizing the
  sequence of events that led to the motions pending before it, the court
  noted that defendant's request to dismiss counsel "basically indicat[ed]
  that he's either going to defend himself-."  Before the court could finish
  that thought, defendant interjected: "No, that isn't the case at all your
  Honor."  He then gave a lengthy description of his dissatisfaction with his
  attorneys, concluding that "[t]hey're not my attorneys anymore and I have
  no intention of defending myself.  I'll get a lawyer, but I don't want a
  public defender because this is the third one in a row that's refused to do
  anything to help me."  After the court informed defendant that the case
  would go to trial on September 14, and that he could "find any lawyer you
  want, but you'll pay for it," defendant responded "I'm not asking the State
  to provide me with a lawyer."  Defendant protested the September trial
  date, and the court made it clear to defendant that if he chose not to
  remain with his court-appointed counsel, he had only two options: go to
  trial in September with counsel he retained on his own or represent himself
  at trial.

       ¶  19.  Defense counsel then moved this Court for extraordinary
  relief, requesting, inter alia, that this Court grant counsel's motion to
  withdraw.  We denied the petition, holding that "counsel remains obligated
  to provide full legal representation for defendant unless and until
  defendant retains private counsel, or defendant successfully moves to
  proceed pro se, in which case the court and counsel may revisit the issue
  of standby counsel."  State v. Tribble, No. 2002-352, slip op. at 2 (Vt.
  Aug. 15, 2002) (unreported mem.).  Attorney Sleigh continued to represent
  defendant and prepare the case for trial.

       ¶  20.  At the September 16 competency hearing described above,
  attorney Sleigh informed the court that if defendant persisted in refusing
  to present an insanity defense, he would again move to withdraw.  The court
  directed attorney Sleigh to remain at trial, even if it was against his
  will.  Defendant did not appear at the hearing, and advised the court, via
  the court officer, that he had chosen not to participate.
   
       ¶  21.  The next morning, September 17, defendant submitted a letter
  to the court stating that attorney Sleigh was no longer his lawyer and
  requesting that the court dismiss attorney Sleigh, stay the proceedings,
  and appoint a new attorney, despite his earlier assertions at the July 26
  hearing that he did not want another court-appointed lawyer.  In court that
  morning, attorney Sleigh renewed his motion to withdraw, explaining that
  after the competency hearing the previous day, he had gone to defendant's
  holding cell to go over what had transpired at the hearing.  When attorney
  Sleigh informed defendant that he would conduct jury voir dire focused on
  the jurors' receptivity to an insanity defense, defendant became "enraged"
  and said he wanted nothing to do with attorney Sleigh or the trial. 
  Attorney Sleigh tried to contact defendant later that day and again before
  court on the morning of the seventeenth, but defendant refused to speak
  with him both times.  As a result, attorney Sleigh stated that he was faced
  with an impossible choice: on the one hand, he could not present an
  insanity defense over defendant's objection under State v. Bean, 171 Vt.
  290, 762 A.2d 1259 (2000); on the other hand, he believed the insanity
  defense was the only non-frivolous defense available.

       ¶  22.  The court granted attorney Sleigh's motion to withdraw,
  recognizing that, "given [defendant's] very clearly stated position in the
  motion which was filed today, and his boycott, if you will, of these
  proceedings," it would serve no purpose to require attorney Sleigh to
  remain, even as standby counsel.  The court further explained that
  defendant 

    has blown through some of the best criminal defense lawyers in the
    state that I worked very hard to get assigned for him.  He's
    repeatedly indicated that he was going to have private counsel
    enter the case, which has not occurred.  And as far as I'm
    concerned, this representation issue has become nothing more than
    a delaying tactic and we won't be putting the case off anymore. 

  The court then made explicit its determination that defendant was

    sufficiently competent to waive counsel, just as I made a
    determination that he was sufficiently competent to stand trial. 
    He unquestionably, as we know, has a mental health issue, but he
    understands what the business of counsel is all about.  And he is
    sufficiently lucid and articulate about that subject and
    sufficiently aware of potential consequences of being
    unrepresented, and I'm going to determine that he's competent to
    waive counsel in this case and proceed pro se.  And he has elected
    not to participate, which is his business. 

       ¶  23.  Defendant argues that he did not make a knowing, voluntary
  waiver.  In essence, he makes three points.  First, he contends that the
  trial court failed to determine whether he was knowingly and voluntarily
  waiving his right to counsel, as required by prior rulings of this Court. 
  Second, he argues that he consistently stated that he did not want to
  represent himself and that he did want an attorney to help him, so that a
  valid waiver cannot be inferred from his conduct.  Finally, he asserts that
  his due process rights were violated because the trial court allowed
  attorney Sleigh to leave the case in defendant's absence, without notice
  and an opportunity to be heard. (FN2)   
   
       ¶  24.  As explained below, we hold that the court's decision to
  allow the trial to proceed without defense counsel was error for two
  reasons.  First, the absence in this case of an explicit, on-the-record
  colloquy, in which the court ascertained whether defendant had validly
  waived counsel and explained to defendant the potential pitfalls of
  proceeding without representation, precludes finding a valid waiver of
  counsel.  In effect, the court found a waiver based on defendant's reported
  conduct, a conclusion we are unwilling to accept where, as here, that
  conduct did not unequivocally indicate a desire to proceed without counsel. 
  Second, the court's decision allowed counsel's assessment of defendant's
  case-namely, that an insanity defense was the only viable defense-to trump
  both defendant's right to be represented and his right, established in
  Bean, to decide whether to defend on insanity.  Defendant's assertion of
  the latter right cannot be allowed to circle back on him as grounds for
  finding a waiver of the former.

                                   A.

       ¶  25.  An indigent defendant has a constitutional right to be
  represented by counsel.  Gideon v. Wainwright, 372 U.S. 335, 344 (1963). 
  That right is codified in Vermont Rule of Criminal Procedure 44(a): "Every
  defendant charged with a serious crime as defined in 13 V.S.A. § 5201(4)
  who is unable to obtain counsel shall be entitled to have counsel assigned
  to represent him at every stage of the proceedings . . . unless he waives
  such appointment."  A defendant can waive his or her right to counsel "if
  the court, at the time of or after waiver, finds of record that [the
  defendant] has acted with full awareness of his rights and of the
  consequences of a waiver and if the waiver is otherwise according to law." 
  13 V.S.A. § 5237.
   
       ¶  26.  In order to assess the validity of a waiver of counsel, the
  trial court must determine whether the defendant made the waiver knowingly
  and voluntarily.  State v. Pollard, 163 Vt. 199, 206, 657 A.2d 185, 190
  (1995).  In general, the trial court must "conduct an inquiry into the
  nature of [the] defendant's understanding of the rights he is waiving." 
  State v. Stenson, 169 Vt. 590, 592, 738 A.2d 567, 571 (1999) (mem.).  The
  "better practice" in this context is for the trial court to inquire on the
  record "into the defendant's experience, motives, and understanding of what
  he is undertaking," and to explain "the available options to protect
  [defendant's] rights to counsel, the full nature of the charges against
  him, the range of allowable punishment, and the consequences of proceeding
  without the aid of an attorney."  State v. Merrill, 155 Vt. 422, 425-26,
  584 A.2d 1129, 1131 (1990).  The court should also "provide a clear
  explanation of the adverse consequences of pro se representation . . . so
  that a reviewing court may determine that the defendant knowingly accepted
  the risk."  Id. at 425, 584 A.2d  at 1131 (citation omitted). 

       ¶  27.  In reviewing whether a defendant made a valid waiver, we
  consider the totality of the circumstances.  Stenson, 169 Vt. at 592, 738 A.2d  at 571.  As we acknowledged in Merrill, "specific circumstances, such
  as a defendant's past experience in representing himself, or pretrial
  attempts to obtain or to fire counsel, or even his conduct at trial, may
  reveal that in-depth inquiry or extensive advice is not necessary in that
  particular case."  155 Vt. at 426, 584 A.2d at 1131-32; see also State v.
  O'Connell, 147 Vt. 60, 63, 510 A.2d 167, 170 (1986) (recognizing that
  "[t]he specific circumstances of a particular case . . . may excuse a trial
  court's failure to inquire into a defendant's decision to proceed pro se"). 
  But it is also clear that "a court may not conclude from silence or other
  equivocal conduct that a defendant has waived his right to counsel."  State
  v. Bradley, 164 Vt. 346, 350, 670 A.2d 811, 814 (1995); see also Merrill,
  155 Vt. at 425, 584 A.2d  at 1131 (recognizing that waiver may not be
  "presumed from a silent record").  Thus, a defendant's conduct could be the
  kind of "specific circumstances" that would obviate the need for a Merrill
  inquiry in finding a satisfactory waiver of counsel only if it
  unequivocally indicated an intent to waive counsel.
   
       ¶  28.  The record in the instant case does not reveal unequivocal
  conduct by defendant concerning the issue of representation.  At the July
  26, 2002 hearing, defendant stated "that isn't the case at all" when the
  court suggested that he intended to defend himself.  In August 2002, we
  noted that defendant "disclaimed any interest in representing himself," in
  our denial of defense counsel's petition for extraordinary relief. 
  Tribble, No. 2002-352, slip op. at 2.  And, most importantly, on the
  morning trial was scheduled to begin, defendant submitted a letter
  requesting that, among other things, the court appoint him a new attorney. 
  In light of the questions surrounding defendant's competency and mental
  health, which persisted at the time of trial, and in spite of the
  considerable, and admirable, efforts the court made to accommodate
  defendant during the pendency of the case, we are forced to conclude that
  the court did not have before it a record of unequivocal conduct indicating
  a waiver of counsel by defendant.

       ¶  29.  Accordingly, the court was obliged to conduct a Merrill
  inquiry before accepting defendant's waiver of counsel.  Because defendant
  refused to attend court on the days of his trial, there was no
  on-the-record colloquy between defendant and the court concerning the
  issues identified in Merrill.  For this reason, this case contrasts with
  the federal cases cited by the State, where the defendant appeared in court
  each time he rejected his appointed attorney.  See, e.g., United States v.
  Fazzini, 871 F.2d 635, 641-42 (7th Cir. 1989) (affirming conviction where
  court found that defendant waived right to counsel and required defendant
  to proceed pro se after defendant rejected fourth appointed attorney);
  United States v. Moore, 706 F.2d 538, 539-40 (5th Cir. 1983) (affirming
  conviction where trial court excused the fourth attorney rejected by
  defendant and required defendant to proceed pro se, over defendant's
  continued demand for new counsel).  Thus, the courts in those cases were
  not confronted with assessing the validity of the waiver in the defendant's
  absence, as was the trial court here.
   
       ¶  30.  Moreover, the court's efforts to communicate with defendant
  through personnel at the correctional center were not a proper substitute
  for a Merrill inquiry.  Although the court's exchange on the record with
  Scott Shafer, the administrative supervisor at the correctional facility,
  reflects that Mr. Shafer mentioned to defendant his understanding that
  defendant was proceeding pro se, the main focus of those communications was
  on defendant's decision not to attend the trial.  This indirect, sparse
  discussion of the issue cannot replace the colloquy envisioned in Merrill. 
  As a result, we cannot now conclude that defendant "knowingly accepted the
  risk" of proceeding without counsel, Merrill, 155 Vt. at 425, 584 A.2d  at
  1131, particularly given defendant's acknowledged mental health issues,
  which, as noted by Drs. Drukteinis and Linder, did relate in part to his
  ability to interact with his attorneys.  Accordingly, we must reverse the
  trial court's decision that defendant validly waived his right to counsel,
  and, with it, defendant's conviction.  

                                     B.

       ¶  31.  We next address the conflict that arose in this case between
  defendant's right not to pursue an insanity defense and counsel's position
  that the insanity defense was the only option.  First, we briefly summarize
  our decision in Bean, because it provided the backdrop for the situation
  that arose in the instant case.  In Bean, we held that "the decision
  whether to assert an insanity defense lies with defendant, and not with
  defense counsel."  171 Vt. at 302, 762 A.2d  at 1267.  We based that holding
  on our recognition that Vermont's procedure for raising an insanity defense
  is equivalent to a plea of not guilty by reason of insanity, and that the
  defendant controls the decision of what plea to enter.  Id. at 300-01, 762 A.2d  at 1266.  As further support, we noted that the defendant alone should
  decide whether to face imprisonment or commitment in a mental institution,
  that an insanity defense could be "so inconsistent with a defense on the
  merits . . . as to make the latter impossible," and that "the vast majority
  of courts" confronting this issue have held that the decision lies with the
  defendant, and not counsel.  Id. at 301, 762 A.2d  at 1267.  
   
       ¶  32.  Here, the issue came to a head before trial began on the
  morning of September 17, 2002, when defense counsel advised the court that
  he would represent defendant only by putting on an insanity defense.  In
  counsel's view, his continued representation of defendant without
  presenting an insanity defense "would be ineffective assistance . . . an
  impossible cross of allegiances and loyalty and . . . I would refuse to
  participate under those circumstances."  Meanwhile, defendant had made
  clear in a letter to the court that morning, as well as in a heated
  exchange with counsel the day before, that he wanted nothing to do with an
  insanity defense.  After further discussion with defense counsel and the
  prosecutor, the court resolved the conflict by allowing defense counsel to
  withdraw and requiring defendant to proceed without an attorney.  

       ¶  33.  In so doing, the court effectively ruled that defendant had to
  proceed pro se because his decision not to pursue an insanity defense
  happened to clash with his counsel's professional judgment.  That approach
  left defendant with only two options: be represented and defend on
  insanity, or forego both an attorney and the insanity defense-an untenable
  choice in light of his coordinate rights to be represented and, as
  guaranteed by Bean, to decide whether to present an insanity defense.  It
  also improperly deprived defendant of a critical third option-proceeding to
  trial with an attorney and a defense other than insanity.  In the absence
  of a valid waiver of defendant's right to counsel, the court could not
  foreclose this third possibility.  By so limiting defendant's array of
  options, the court in effect treated defendant's decision not to allow an
  insanity defense as a waiver of his right to counsel.  However, defendant's
  choice to exercise his right to decline an insanity defense cannot be
  transformed into a voluntary relinquishment of his constitutional right to
  counsel, especially because he alone has the authority to exercise both and
  because, as explained above, defendant did not validly waive his right to
  counsel.
   
       ¶  34.  Contrary to the view suggested by trial counsel in this case,
  nothing in our Rules of Professional Conduct required defendant's attorney
  to present the best defense of which he was aware, over defendant's
  objection.  Rather, the Rules obligate an attorney in general to "abide by
  a client's decisions concerning the objectives of representation," and,
  more specifically, they require that "[i]n a criminal case, the lawyer
  shall abide by the client's decision, after consultation with the lawyer,
  as to a plea to be entered."  V.R.Pr.C. 1.2(a).  The decision to raise an
  insanity defense is in effect a decision about entering a plea, which lies
  with the defendant.  Bean, 171 Vt. at 301-02, 762 A.2d 1266-67.  Thus,
  counsel's duty here was to abide by defendant's decision to forego the
  insanity defense.  As a result of this duty, counsel may have been required
  to pursue a defense he believed was inadvisable or that he thought would
  not succeed, but that neither lessened counsel's duty to abide by
  defendant's decision, nor eliminated counsel's potential utility as an
  advocate at trial.  As Justice White explained in his concurring opinion in
  United States v. Wade, defense counsel can "put the State to its proof, to
  put the State's case in the worst possible light, regardless of what he
  thinks or knows to be the truth."  388 U.S. 218, 258 (1967).
   
       ¶  35.  Moreover, we are not aware of a case in which a court held
  that an attorney was bound to present an insanity defense over a
  defendant's objection.  To the contrary, courts have "affirmatively
  indicated" that an attorney is not required to present the defense over his
  client's objection.  A. Singer, The Imposition of the Insanity Defense on
  an Unwilling Defendant, 41 Ohio St. L.J. 637, 666 (1980).  Thus, we find no
  support for the proposition that an attorney is compelled, ethically or
  otherwise, to present an insanity defense when, in his professional
  judgment, it is a defendant's best, or only meritorious, defense.  Rather,
  we conclude that an attorney's assessment of the relative merits of various
  defenses cannot be allowed to override a defendant's right to decide
  whether to mount an insanity defense or to deprive a defendant of his right
  to counsel, absent an otherwise-valid waiver of that right. (FN3)  

       ¶  36.  In sum, the unorthodox sequence of events leading up to trial
  ultimately forced defendant to choose between his right to counsel and his
  right to control the use of the insanity defense.  We conclude that putting
  defendant to that choice here was impermissible.  In light of our decision,
  we need not address defendant's arguments concerning his absence from the
  trial or his sentencing.

       Reversed and remanded for further proceedings consistent with this
  decision.  The district court's opinion and order of October 24, 2000
  granting the State's motion to hold defendant without bail is reinstated,
  and defendant shall remain held without bail pending further order of the
  district court.


                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


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


FN1.  Given our holding on the waiver-of-counsel issue, we do not reach
  defendant's argument concerning his right to be present at trial or his
  sentencing arguments.

FN2.  Preliminarily, we note that the Dusky test for competency to stand
  trial also applies in determining whether a defendant is competent to waive
  counsel because "there is no reason to believe that the decision to waive
  counsel requires an appreciably higher level of mental functioning than the
  decision to waive other constitutional rights."  Godinez v. Moran, 509 U.S. 389, 399 (1993).

FN3.  We acknowledge that, under certain circumstances, it may be better to
  allow some lawyers to withdraw if they have significant differences with
  their clients, and our decision does not prevent a trial court from
  replacing an attorney in such a situation.