Court of Appeals says request to change counsel was clear, but came

Daily Record, The (Baltimore), Mar 22, 2005 by Ann Parks

A Baltimore County man's complaints about his lawyer - made more than halfway through his second child abuse and assault trial - came too late to entitle him to any change in representation, the Court of Appeals has held.

Although statements made by Bernard Campbell in his 2003 trial added up to a proper request to discharge counsel, the top court said, it was a request that had been properly dealt with and denied by the trial judge.

The comments - including sentiments such as I don't like this man as my representative and you all wouldn't let me fire him - came at a point where only the closing arguments and jury instructions remained in the trial, the court noted.

The disruptive effect of Campbell dismissing his attorney and either proceeding pro se or substituting counsel so late in the proceedings supports our expression - that requests to discharge should not be used as 'eleventh hour' tactics to delay the trial or to confuse the jury, Judge Lynne A. Battaglia wrote last week for the 5-2 Court of Appeals.

The decision means that Campbell will now have to serve the 15- year sentence for child abuse and consecutive 25-year sentence for assault he was handed in 2003.

The Court of Special Appeals reversed the convictions last year, concluding that Baltimore County Circuit Judge Dana M. Levitz should have determined the reason for Campbell's requested discharge of counsel, as required by Maryland Rule 4-215(e).

Dissenting Judge Irma S. Raker and Chief Judge Robert M. Bell agreed with the intermediate appeals court.

'Either the circuit court did not recognize the request to discharge counsel and did not exercise its discretion or, if it did, it made no inquiry as to the reason and did not provide the rationale for denying [Campbell's] request,' Raker wrote, quoting the Court of Special Appeals' unreported opinion.

The intermediate appellate court was right on in its analysis, Raker added.

Campbell was arrested and charged with child abuse and assault in November 2001 after his 13-month-old daughter Destiny was rushed to the hospital with a fractured skull, second-degree burns, a cut nose and a bruised cheek.

He took his 13-month old daughter and put her in scalding water from her waist to her feet, said Baltimore County Assistant State's Attorney Stephen Roscher, adding that Campbell then proceeded to take the child out of the tub, with flesh falling off, and rub her down with alcohol.

The pictures are horrendous, he said.

A first trial in 2002 ended when Campbell got disruptive and dumped everything off the trial table, Roscher said. Baltimore County Circuit Judge Robert E. Cahill Sr. proceeded to order Campbell evaluated for criminal responsibility.

By the time the Department of Health and Mental Services report came back - he had the highest score for faking, for malingering, that they had ever seen, Roscher said - Cahill had retired and believed a mistrial was appropriate.

In the second trial, at the close of the state's case in chief, Campbell addressed the court, making statements that he did not like his public defender. The attorney, he claimed, had made negative statements concerning Campbell and the outcome of the case.

According to the opinion, the trial court responded, Well, we are way beyond that, and proceeded with jury instructions and closing arguments.

Campbell was convicted, but the Court of Special Appeals reversed.

The state asked the Court of Appeals to hear the case, asserting that Campbell's remarks either did not constitute a request to change counsel; or, if they did, that the request was untimely since meaningful trial proceedings had begun.

Looking at prior case law, the top court noted that a defendant's message did not need to be a talismanic phrase or artfully worded to qualify as a request for discharge of counsel.

But a defendant's right to waive counsel, it went on, was limited once trial proceedings had begun; at that point, a court has the discretion whether to permit the discharge of counsel.

And since Campbell's reasons for wanting to dismiss his lawyer were apparent based upon his statements, the court was not required to make any further inquiry, the top court concluded.

WHAT THE COURT HELD

Case:

State of Maryland v. Bernard Campbell a/k/a Sean Kelly, CA No. 63, Sept. Term 2004, Opinion by Battaglia, J.; dissent by Raker, J. Filed March 15, 2005.

Issue:

Did a defendant's expressions of dissatisfaction during trial constitute a request to discharge counsel, and if so, was the request properly denied by the trial court?

Holding:

Yes; CSA reversed. Statements like I don't like this man as my representative and you wouldn't let me fire him qualified as a request to discharge counsel. However, the court was within its discretion to deny the request since meaningful trial proceedings had commenced.

Counsel:

Diane E. Keller for petitioner; Claudia A. Cortese for appellee.