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State v. Martin

Supreme Court of New Hampshire

December 21, 2018


          Argued: June 27, 2018

          Hillsborough-northern judicial district

          Gordon J. MacDonald, attorney general (Katherine A. Triffon, attorney, on the brief, and Stephen D. Fuller, senior assistant attorney general, orally), for the State.

          Eric S. Wolpin, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

          BASSETT, J.

         The defendant, Joel Martin, appeals his convictions for second degree murder, second degree assault, and being a felon in possession of a dangerous weapon. See RSA 630:1-b, I(a) (2016); RSA 631:2, I(b) (2016); RSA 159:3 (2016). He argues that the Superior Court (Brown, J.) erred when it: (1) failed to inquire how he wanted to proceed if his motion to discharge his counsel were granted; and (2) denied his request to instruct the jury to consider the effect of alcohol intoxication on eyewitness identification testimony. We affirm.

         The following evidence was presented to the jury. On Friday, May 8, 2015, the defendant went to a Manchester nightclub. The club was crowded and dark. The defendant approached a group of three men, including the murder victim, and a fight broke out. After other people intervened, the fight ended, and the defendant walked to the other side of the bar.

         As one of the club promoters was speaking to the victim, the defendant approached and stabbed the victim, inflicting the fatal wounds. As two club security guards pulled the defendant away from the victim, the defendant stabbed one guard and slashed the other. One of the guards grabbed the defendant in a bear hug and removed him from the club. Shortly thereafter, the defendant was found nearby with a lacerated neck and a partially amputated finger.

         The defendant was later arrested and charged with alternative counts of second degree murder, two counts of second degree assault, and one count of being a felon in possession of a deadly weapon. On May 12, 2015, counsel from the Office of the New Hampshire Public Defender was appointed to represent the defendant. On June 3, 2015, Attorney Paul Garrity filed an appearance, and, on June 9, the defendant's appointed counsel withdrew.

         Almost two years later, in a motion dated February 16, 2017, Garrity and Attorney Justin Shepherd advised the trial court that the defendant was indigent and requested that the court appoint them as his counsel. They informed the court that, although the defendant had originally retained Garrity and that the defendant and his family had agreed to pay for Garrity's services, Garrity had not received payment since July 15, 2015. They also reported that the total fees paid to Garrity as of February 16, 2017 were "substantially less than was called for by the fee agreement," the defendant had "filed a financial affidavit affirming his indigency," and the court had "approved requests for services other than counsel on the basis of the [defendant's] financial status." Garrity and Shepherd cited the impracticality "of the Public Defender's Office taking over a murder case approximately a week and half before trial," and requested that the trial court appoint them as trial counsel and "authorize payment for their services by the State of New Hampshire."

         Two days later, on Saturday, February 18, Garrity met with the defendant. At that meeting, the defendant asked Garrity to withdraw as his counsel. Garrity filed a motion to withdraw on the next business day, February 21, and, on that same day, the trial court held a hearing on the motion. After conducting an extended colloquy with the defendant and Garrity, the court orally denied the motion. On March 3, the trial court issued a written order appointing Garrity and Shepherd as defendant's counsel and authorizing their compensation as indigent defense counsel. See RSA 604-A:3, :4 (2001); Sup. Ct. R. 47.

         Following an eight-day jury trial, the defendant was convicted of second degree murder, two counts of second degree assault and being a felon in possession of a dangerous weapon. This appeal followed.

         The defendant first argues that the trial court erred when it "did not inform [him] of his options nor determine whether [he] wished to proceed pro se." The State counters that, after the defendant informed the trial court that he was dissatisfied with his counsel, the trial court conducted a sufficient inquiry.

         Both Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment to the United States Constitution guarantee a criminal defendant the right to counsel and the right to self-representation. State v. Sweeney, 151 N.H. 666, 670 (2005). We first address the defendant's claim under the State Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-33 (1983).

         The right to counsel and the right to self-representation are mutually exclusive; the exercise of one right nullifies the other. State v. Ayer, 154 N.H. 500, 516 (2006). To be effective, an assertion of the right to self-representation must be clear and unequivocal. Id. This requirement is necessary to protect a defendant from inadvertently waiving the right to counsel through "occasional musings on the benefits of self-representation." United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir. 2000) (quotation omitted). It also "prevents a defendant from taking advantage of and manipulating the mutual exclusivity of the rights to counsel and self-representation." Id. at 559. "[I]f a defendant in a criminal proceeding makes an equivocal demand on the question of self-representation, he has a potential ground for appellate reversal no matter how the [trial] court rules." United States v. Miles, 572 F.3d 832, 836 (10th Cir. 2009) (quotation and emphasis omitted). To address this dilemma, and "because a waiver of the right to counsel should not be lightly inferred," appellate courts, including this court, have held that "a defendant's election to represent himself must be clearly and unequivocally asserted." Id. at 836-37 (quotation omitted); see Sweeney, 151 N.H. at 670.

         Courts should "indulge in every reasonable presumption against waiver." Brewer v. Williams, 430 U.S. 387, 404 (1977); State v. Davis, 139 N.H. 185, 190 (1994). Notwithstanding this presumption, there is no requirement that a defendant use specific language to invoke his right to self-representation: "'[T]he triggering statement in a defendant's attempt to waive his right to counsel need not be punctilious; rather, the dialogue between the court and the defendant must result in a clear and unequivocal statement.'" Sweeney, 151 N.H. at 670 (quoting United States v. Proctor, 166 F.3d 396, 403 (1st Cir. 1999)).

         We have not yet had occasion to decide whether we should apply a deferential or de novo standard when reviewing the issue of whether a defendant's request for self-representation was clear and unequivocal. See State v. Towle, 162 N.H. 799, 803 (2011). Nor do we need to do so in this case, because the State prevails under the more exacting de novo standard.

         The State does not contest that the defendant's request that Garrity withdraw "constituted a 'triggering statement,' and therefore necessitated an inquiry by the court." Accordingly, we will assume without deciding that the defendant's request constituted a triggering statement that required further judicial inquiry. See Sweeney, 151 N.H. at 670. After having reviewed the transcript of the colloquy conducted by the trial court with ...

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