State v. Ayers

464 A.2d 963, 1983 Me. LEXIS 821

• Court: Supreme Judicial Court of Maine
• Decided: August 31, 1983
• Status: Published

Opinions

WATHEN, Justice.

Defendant Donald Ayers appeals from his conviction for murder, 17-A M.R.S.A. § 201 (1983), resulting from a jury trial in Superi- or Court (Washington County). On appeal, defendant argues that the court erred in: (1) refusing to permit defense counsel to withdraw from representation, (2) failing to declare a mistrial after a testimonial reference to the co-defendant’s confession, (3) admitting a gun and money found pursuant to the alleged illegal confession of the co-defendant, (4) admitting a copy of the victim’s will and a copy of a firearms log in contravention of the best evidence rule, and (5) admitting prior recorded testimony of the defendant. We find no error and deny the appeal.

On the night of April 6, 1979, John Che-ponis was shot and beaten to death in the J-P Cash Market in Presque Isle. The victim’s former wife, Barbara Thibodeau, and defendant Donald Ayers were each indicted and charged with one count of conspiracy and one count of murder. On July 25,1980, following a jury trial, both defendant and Barbara Thibodeau were convicted as charged. On appeal, this Court upheld both conspiracy convictions but set aside the convictions of murder. State v. Ayers, 433 A.2d 356 (Me.1981). Donald Ayers was subsequently retried and convicted of murder on October 17, 1981. The presiding justice granted a defense motion for a new trial and, following a change of venue, a third jury trial resulted in the murder conviction now on appeal.

I.

Ten days before the scheduled commencement of the third trial, both of defendant’s counsel filed application for leave to withdraw, asserting that they had been appointed to represent defendant, that they had already unsuccessfully represented him in two jury trials, and that defendant had requested counsel to withdraw from the case and sought the appointment of other counsel. At hearing, one of defendant’s counsel explained as follows:

The final note, it’s always been my personal experience that I’ve never had good luck representing clients who don’t want to be represented by me. I find it very difficult to get along with them in most cases. And this case being a murder case, I would consider the establishment of a trust between attorney and client very important.

After being questioned by the presiding justice, defendant stated that he did not have confidence in his counsel and did not feel that he was being properly represented. Defendant explained that he had not presented his request earlier due to the fact that he had only learned of the date of his new trial the week before. He also stated that for the past two or three months he had been trying to get the name of a “good criminal lawyer” from his fellow inmates at the Maine State Prison.

Defendant suggested two names as possible replacement counsel. The presiding justice responded that one of these attorneys was out of the country and that the other, a Portland lawyer, “is not going to travel to Machias for a court appointed case. I haven’t talked to him, but I can guarantee it.” After defendant expressed his willingness to have the court select another attorney, the presiding justice stated: “There is no one in this state who would be willing to take this case and try it next week.”

The presiding justice commented further: “Mr. Ayers, I really have a problem with what, in effect, is just a back door way to get a continuance in this case.” Defendant responded that he was not seeking a continuance, and his counsel, noting defendant’s present incarceration, stated: “I don’t see any way a continuance could help him.” The presiding justice replied:

Well, it — it helped Mrs. Ayers,¹ arguably, because — and it’s a matter that is pretty obvious. I don’t think I’m speaking out of turn. Mr. Ayers is a necessary, or at least the State hopes to make him a witness against Mrs. Ayers. That’s why to get his trial over with first so that the privilege problem is disposed of. And her trial is already one year after the Law Court’s reversal. Recognizing that the bulk of that delay has, to date, been the fault of the defense because of the shift in counsel there, nonetheless it’s time to retry that one, and as a matter — it’s not that I’m siding with the State in setting Mr. Ayers as a witness, but the fact of the matter remains that the practical way to try these trials is Mr. Ayers first and then Mrs. Ayers.

Ultimately, the court ruled:

[T]he upshot of this is, Mr. Ayers, that I am not convinced that your request for change of counsel is the product of any reasoned evaluation of your attorneys’ performance in the prior trials. I think there are some underlying motives. Certainly neither [of the two suggested counsel] is available to represent you, and I know of no lawyer who is available to represent you on the short-term basis that we have here. I am not at all inclined to grant a continuance. The matter has been pending for a long time, and whatever — whatever the situation here, I’ve heard nothing that convinces me that the situation is so bad that you cannot get competent representation from the people who are most familiar with the case and who have represented you in the past, and I’m going to deny the request to withdraw this counsel. The matter will proceed as scheduled on July 12th.

Defendant argues on this record that he was deprived of the right to counsel by the court’s refusal to permit a change in representation.

The right to counsel guaranteed by the Sixth Amendment is indeed a cornerstone of our national system of ordered liberty. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). The importance of counsel in our criminal adversary system is unquestioned, but it is well recognized that a criminal defendant’s absolute right to counsel does not confer upon him an absolute right to counsel of his choice. Balancing an appreciation of the inevitable difficulties of trial administration with a concern for constitutional protections, the eases uniformly hold that the right of an accused to the assistance of counsel, “cherished and fundamental though it be,” United States v. Fowler, 605 F.2d 181, 183 (5th Cir.1979), cert. denied, 445 U.S. 950, 100 S.Ct. 1599, 63 L.Ed.2d 785 (1980), cannot be manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair, efficient and effective administration of justice. See, e.g., United States v. Burton, 584 F.2d 485, 489 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979); United States v. Poulack, 556 F.2d 83, 86 (1st Cir.), cert. denied 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977); Lofton v. Procunier, 487 F.2d 434, 435 (9th Cir.1973); Thorne v. State, 269 Ark. 556, 560, 601 S.W.2d 886, 889 (1980); Commonwealth v. Connor, 381 Mass. 500, 503, 410 N.E.2d 709, 711 (1980); State v. Addison, 197 Neb. 482, 485, 249 N.W.2d 746, 748 (1977); Commonwealth v. Baines, 480 Pa. 26, 30, 389 A.2d 68, 70 (1978).

A court need not tolerate unwarranted delays, and, if in the sound discretion of the court the attempted exercise of choice is deemed dilatory or otherwise subversive of orderly criminal process, the court may compel a defendant to go to trial even if he is not entirely satisfied with his designated attorney. Lofton, 487 F.2d at 435; Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976). The United States Supreme Court has recently held that the Sixth Amendment does not guarantee a “meaningful relationship” between an accused and his counsel. Morris v. Slappy, - U.S. -, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).² In so holding, the Court recognized the important countervailing interests of the State in avoiding unnecessary delay so as to do justice with regard to both the defendant and others whose rights to a speedy trial may thereby be affected. Id. at -, 103 S.Ct. at 1616-17. See also Baines, 480 Pa. at 30, 389 A.2d at 70. Indeed, “the public’s interest in the dispensation of justice that is not unreasonably delayed has great force.” Burton, 584 F.2d at 489.

In this case, defendant challenges the denial of his motion for withdrawal of counsel and the denial of a continuance which would have resulted therefrom. It is firmly established that whether a continuance will be granted on the ground that more time is required to obtain adequate legal representation at trial in a given case rests entirely within the sound discretion of the presiding justice and the decision will not be reversed absent a clear abuse of that discretion. State v. Stinson, 424 A.2d 327, 332 (Me.1981). A continuance which is sought to retain or replace counsel implicates the Sixth Amendment right to the assistance of counsel and, in such circumstances, “the right to select counsel must be carefully balanced against the public’s interest in the orderly administration of justice.” Burton, 584 A.2d at 489. However, “only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Morris v. Slappy, - U.S. at -, 103 S.Ct. at 1616, quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964).

Defendant has failed to demonstrate any abuse of discretion. The remarks of the presiding justice could, if considered out of context, be construed as expressing an inappropriate concern for the effect of the requested ruling upon the position of the State. However, a reading of the entire record establishes that the trial court was not advancing that concern as a basis for denying defendant’s motion. Rather, the trial justice was expressing its concern that defendant’s motion was motivated solely by tactical considerations, specifically to compel the State to try his wife’s case first and to avoid having to testify against her at her trial, rather than by any deficiency in the performance of counsel. Notwithstanding counsel’s remark that he had “never had good luck representing clients who don’t want to be represented by me,” the record does not compel a finding that counsel was inadequately prepared for or unwilling to proceed with the defense case. In fact, having represented defendant in the two prior trials, counsel was certainly in a more informed position than would be any newly appointed counsel. See ABA Standards for Criminal Justice 5-5.2 (2d ed. 1980).

The judgment of the presiding justice should be afforded considerable deference. Unfounded requests for the appointment of new counsel on the virtual eve of trial should not become a vehicle for achieving delay. No error was committed in the denial of the motion for withdrawal of counsel.

II.

During his cross-examination of State Police Detective Ames, defense counsel questioned him about a conversation he had had with defendant. Counsel asked: “Okay, did you relate to him any information that you received from Barbara [Thibo-deau]?” Ames responded: “I may have told him that — that she had confessed.” At sidebar, counsel moved for mistrial and stated that he had not intended to elicit that response. The court denied the motion, stating: “You can’t expect these guys to keep dodging open holes you keep leaving.”

Despite the fact that the court gave two separate curative instructions in form approved by defense counsel, the defense now argues that reversal is required because the fact of co-defendant’s confession was put before the jury. The doctrine of invited error, however, does not permit such a result. Having knowingly invited the response from Detective Ames, the defense cannot now claim reversible error. State v. Wilson, 456 A.2d 1276, 1279 (Me.1983), State v. Gray, 407 A.2d 19, 20-21 (Me.1979).

III.

Defendant argues that the court erred in admitting the murder weapon and testimony of one of the police officers about finding money in Barbara Thibodeau’s house that had been taken from the J-P Cash Market. In effect, the defense challenges the suppression hearing held before the start of the second trial. At that hearing, the court heard testimony from defendant and argument from counsel on defendant’s motion to suppress the pistol found by the police in the Aroostook River, and the money found in Barbara Thibodeau’s home. The court denied the defense’s motion to suppress the pistol and money on the basis of defendant’s lack of standing.

Defendant does not challenge the denial of the suppression motion on traditional grounds. Instead, defendant asserts that the State’s failure to produce any record evidence at the suppression hearing compels the conclusion that the State did not meet its burden of proof on the issue of suppression. That assertion, however, overlooks the fact that defendant had the initial burden of establishing a violation of his constitutional rights. See United States v. Dall, 608 F.2d 910, 914 (1st Cir.1979), cert. denied, 445 U.S. 918, 100 S.Ct. 1280, 63 L.Ed.2d 603 (1980). The State had no burden to produce evidence until defendant’s standing had been established. The denial of the suppression motion, accordingly, was not “clearly erroneous,” State v. Philbrick, 436 A.2d 844, 854-55 (Me.1981), and no error was committed by the presiding justice in admitting the gun and the testimony regarding the money into evidence.

IV.

The defendant next argues that the court erred in admitting into evidence a copy of the victim’s will and a copy of a page from a firearms log establishing defendant’s purchase of bullets from a Florida hardware store. Defendant objected to the introduction of both documents on the basis of the best-evidence rule. M.R.Evid. 1002-1004. Defendant contends that because the State could have obtained the originals of both the will and the firearms log, the admission of copies into evidence was error. Defendant’s position, however, is lacking in merit.

The determination of “[a]ll preliminary matters which must be established to make secondary evidence admissible are questions of fact for the court and ... subject to the sound discretion of the trial Justice ... .” State v. Lewis, 373 A.2d 603, 611 (Me.1977). Defendant has shown no abuse of discretion. Further, defendant did not contend at trial, nor does he now contend, that the copies are in any way inaccurate. Given these circumstances, any error would be harmless. “[I]f complaining counsel is asked whether there is an actual dispute as to the terms of the writing and he cannot give assurance that such a good faith dispute exists, any deviation from the rule should be harmless error.” State v. Cyr, 389 A.2d 834, 836 n. 1 (Me.1978), quoting Advisor’s Note to M.R.Evid. 1004).³

V.

The final issue raised by defendant on appeal is totally lacking in merit and requires no discussion.

The entry is:

Judgment of conviction affirmed.

McKUSICK, C.J., and GODFREY and WATHEN, JJ., concurring.

1 . Donald Ayers and Barbara Thibodeau were married following their arrest. See State v. Ayers, 433 A.2d at 358 n. 1. At the date of this hearing, Barbara Thibodeau Ayers was awaiting retrial after her murder conviction had been set aside. The docket entries reflect that she has been afforded an opportunity to change counsel as the case against her has progressed.

2 . We interpret this language employed by the Court as simply a rearticulation of the well established principle that the Constitution guarantees criminal defendants only a fair trial and a competent attorney as necessary to insure an adequate defense. See Engle v. Issac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575, 71 L.Ed.2d 783 (1982). See also State v. Anaya, 456 A.2d 1255, 1263 (Me.1983).

3 . Accord, United States v. Georgalis, 631 F.2d 1199, 1205 (5th Cir.1980) (applying Federal Rules of Evidence). Under Fed.R.Evid. 1003, a “duplicate” is admissible “unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.”