State v. Nisbet

134 A.3d 840

STATE of Maine

v.Joshua R. NISBET.

Docket No. Cum–14–224.

Supreme Judicial Court of Maine.

Argued: Sept. 16, 2015.

Decided: March 1, 2016.

Jamesa J. Drake, Esq. (orally), Drake Law, LLC, Auburn, for appellant Joshua R. Nisbet.

Stephanie Anderson, District Attorney, and Robert L. Ellis, Asst. Dist. Atty., Prosecutorial District No. Two, Portland, for appellee State of Maine.

Janet T. Mills, Attorney General, and Leanne Robbin, Asst. Atty. Gen. (orally), Office of the Attorney General, Augusta, for amicus curiae Maine Office of the Attorney General.

Patrick Lyons, Stud. Atty., and Christopher Northrop, Esq., Cumberland Legal Aid Clinic, Portland, and David Bobrow, Esq., Bedard and Bobrow, PC, Eliot, for amicus curiae Maine Association of Criminal Defense Lawyers.

Zachary L. Heiden, Esq., American Civil Liberties Union of Maine Foundation, Portland, for amicus curiae American Civil Liberties Union of Maine Foundation.

Panel: ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.

HJELM, J.

[¶ 1] Joshua R. Nisbet was convicted of robbery (Class A), 17–A M.R.S. § 651(1)(E) (2015), in the Unified Criminal Docket (Cumberland County, Warren, J. ) after a jury trial. Nisbet proceeded to trial without representation by counsel after the court permitted the withdrawal of two attorneys who had represented him jointly as his fourth and fifth attorneys, because Nisbet had made a direct and express threat to cause serious bodily harm to one of those attorneys in the presence of the other. Based on the combined effect of that threat, Nisbet's deliberate unwillingness to work with those attorneys' predecessors, and the absence of any prospect that he would work cooperatively with successor counsel, the court determined that Nisbet had forfeited his right to counsel and required Nisbet to proceed to trial as an unrepresented defendant, although with the assistance of standby counsel. Nisbet appeals the judgment and challenges the court's determination that he forfeited his right to counsel. In this matter of first impression in Maine, we conclude that in circumstances of egregious misconduct affecting the exercise of the right to counsel, such as those presented here, an accused can forfeit that right, and that the court did not err in determining that Nisbet's conduct rose to the level that constituted a forfeiture. We also conclude alternatively that the record establishes that through his misconduct, Nisbet waived his right to counsel by implication. Accordingly, we affirm.

I. BACKGROUND

[¶ 2] Because the procedural history of this case is critical to the legal analysis, we review it in some detail.

[¶ 3] On July 18, 2011, the State charged Nisbet by criminal complaint with robbery (Class A), see 17–A M.R.S. § 651(1)(E), alleging that he committed the crime at a convenience store in South Portland while brandishing a knife. Nisbet was arrested two days later. After he was indicted in September 2011, the case proceeded to a four-day jury trial in late April and early May 2014, which resulted in a guilty verdict. The court subsequently sentenced Nisbet to a fourteen-year prison term, with all but seven years suspended and four years of probation.

[¶ 4] Five attorneys represented Nisbet during the three years the case was pending in the trial court. Following Nisbet's initial appearance on July 20, 2011, the court (MG Kennedy, J. ) appointed Attorney Randall Bates to represent Nisbet. The case was initially scheduled for trial in November 2011, but was then continued to January 2012. On November 16, 2011, Attorney Bates moved to withdraw as counsel, stating in his motion,

Defendant has made it abundantly clear that he no longer believes that Counsel is representing Defendant vigorously enough. Defendant has made several phone calls from the jail elaborating on his loss of confidence in Counsel, despite Counsel having represented him in the past.... [T]he relationship between Defendant and Counsel has irrevocably broken down.

The court (Cole, J. ) granted the motion on December 9, 2011, appointed Attorney Robert LeBrasseur to represent Nisbet, and set a new trial date of February 2012.

[¶ 5] In early January 2012, Attorney LeBrasseur filed various discovery motions and a motion to suppress. The court (Wheeler, J. ) adjudicated those motions after a hearing held in March 2012. Earlier, on February 21, 2012, Nisbet had written a letter directed to Attorney LeBrasseur but sent it to the court, requesting to be appointed co-counsel, explaining, "I don't want to be told I can't speak on my behalf or ask questions...." After two more continuances, one of which was requested by the State, a new trial date was set for May 2012. In late April 2012, Attorney LeBrasseur filed a motion to withdraw as Nisbet's counsel, claiming that Nisbet had been hostile during telephone conversations with members of his staff and that consequently the attorney-client relationship had eroded. The court (Cole, J. ) granted Attorney LeBrasseur's motion on May 7, 2012, and that day appointed Attorney Kristine Hanly to represent Nisbet. The court also set a new trial date of July 2012.

[¶ 6] Attorney Hanly filed a discovery request soon after her appointment to the case, and she filed two successive motions to continue to allow more time for her to review the "extensive" discovery and to further conduct a pretrial investigation. Attorney Hanly also filed a notice of alibi, see U.C.D.R.P.—Cumberland County 16A(b)(3); M.R.U. Crim. P. 16A(b)(3),¹ and a motion for sanctions based on allegations that the State failed to produce discovery. The court (Moskowitz, J. ) heard and denied the motion, concluding that the information at issue had been provided, did not exist, or was available independently to the defense.

[¶ 7] In late January 2013, Attorney Hanly filed a motion for leave to withdraw, stating that "due to comments and conduct of the client, Counsel believes that the attorney-client relationship has been irretrievably damaged." At a hearing on the motion, Nisbet agreed to Attorney Hanly's withdrawal and told the court that he was in the process of retaining an attorney. The court granted the motion to withdraw but before doing so, told Nisbet, "You so far have had three excellent lawyers representing you, and we're about to deal with your third lawyer's motion[ ] to withdraw.... It's important that you cooperate with the next attorney that gets on board with you, whether it's someone your family hires or whether it's someone the [c]ourt appoints." In a subsequent written order memorializing the ruling, the court stated, "In no event will the trial in this matter be delayed. If retained counsel does not enter an appearance by 2–8–13, the court will appoint a fourth and final attorney to represent Mr. Nisbet." (Emphasis in original.) At the hearing on Attorney Hanly's motion to withdraw, the court also took up discovery issues, which Attorney Hanly described as originating with Nisbet's belief that police officers had falsified reports and that technological evidence and videos existed to prove that allegation.

[¶ 8] Despite Nisbet's suggestion to the court that he would soon be represented by retained counsel, no attorney entered an appearance, and so on February 26, 2013, Attorneys Neale Duffett and Jon Gale were appointed as co-counsel to represent Nisbet. They filed a motion to continue the trial date, and the court (Warren, J. ) granted the motion.

[¶ 9] At a status conference held in August 2013, Nisbet filed a motion to remove Attorneys Duffett and Gale as his attorneys. The court engaged in a colloquy with Nisbet in which the court reminded Nisbet that the prior order

said that you would get your final attorneys when [the court] relieved [Attorney Hanly].... [Y]ou were on notice that we weren't going to keep replacing attorneys even if you asked for that and that you might be in a situation where you'd have to represent yourself if you really want to unload your attorneys.

The court also told Nisbet that he was "at the end of the line on attorneys" and explained the dangers of proceeding without counsel. The court advised Nisbet that the prosecutor who would try the case for the State and Attorneys Duffett and Gale all were experienced lawyers:

They know [the] rules of evidence. They know the court procedures and ... have done lots of trials. I don't know whether you've ever represented yourself or have any legal training or have had any courtroom experience where you've been [a party] in a trial.... And so, if you haven't had that, you're at a tremendous disadvantage if you are representing yourself.... [T]hese are the fifth and none of them are inexperienced attorneys. They're all—some of our most experienced, better criminal defense attorneys ... [Their] collective experience dwarfs that of anyone else we could assign at this point. So, I don't see that a dissatisfaction with an attorney is going to change if we keep adding additional attorneys or keep replacing them.

Nisbet then told the court that he wanted to proceed with counsel and withdrew his motion to remove Attorneys Duffett and Gale. The court formally denied the motion and rescheduled the trial for October 2013.

[¶ 10] Between late September and early November 2013, the parties were in court four times to address further discovery requests pressed by Nisbet himself. This included Nisbet's request to obtain recordings of 28 months of telephone calls from the jail where he was being held, and the issuance of dozens of subpoenas for documents that, according to the State, did not exist or it did not have. Attorneys Duffett and Gale, and Nisbet himself, requested a continuance of trial, and Nisbet told the court that he wanted a continuance for "as long as it takes to get this discovery." During one of the hearings, Nisbet also wanted the record to show that there was "bad blood" between his attorneys and him. In response to Nisbet's complaints about his attorneys, the court told Nisbet that it "can't simply...