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