State v. Panzera

652 A.2d 136, 139 N.H. 235, 1994 N.H. LEXIS 138
CourtSupreme Court of New Hampshire
DecidedDecember 27, 1994
DocketNo. 91-060
StatusPublished
Cited by9 cases

This text of 652 A.2d 136 (State v. Panzera) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Panzera, 652 A.2d 136, 139 N.H. 235, 1994 N.H. LEXIS 138 (N.H. 1994).

Opinion

JOHNSON, J.

A jury trial in Superior Court (Barry, J.) resulted in the defendant, Walter Panzera, being convicted of burglary, RSA 635:1 (1986) (current version at RSA 635:1 (1986 & Supp. 1993)), and attempted aggravated felonious sexual assault, RSA 629:1 (1986); RSA 632-A:2 (Supp. 1993). On appeal, the defendant argues that the trial court violated his rights to counsel and personal access to a law library. We affirm.

[237]*237Jury selection for the defendant’s trial was scheduled for October 24, 1990. On October 4, 1990, the defendant learned that his appointed counsel was leaving the public defender’s office, and that the defendant’s case was being transferred to another public defender. The departing appointed counsel advised the defendant that his replacement would require a six-week continuance to prepare for the defendant’s trial.

On October 19, 1990, the Superior Court (Groff, J.) held a hearing to determine status of counsel. At the hearing, the defendant announced his intention to appear pro se. He explained his decision by stating that he had little confidence in the public defender’s office, and that he did not want a continuance. Paradoxically, however, the defendant stated that he would not be satisfied with his newly assigned public defender even though he “probably is a terrific lawyer.” Moreover, after the court cautioned him against appearing pro se, the defendant named two lawyers whose representation he would accept. The defendant intimated that he would agree to a continuance to allow one of these two designated lawyers to prepare for the case.

The court informed the defendant that he could not hand-pick a court-appointed attorney. Hence the defendant resolved to represent himself. The defendant agreed to standby counsel but stated that he would prefer a court order allowing him access to a law library on weekdays. The court did not respond to this statement. On October 26, 1990, the defendant filed a motion requesting an order to allow him time in a law library. The Superior Court (Groff, J.) denied the motion.

On appeal, the defendant advances two arguments. First, the defendant argues that his waiver of his constitutional right to counsel was involuntary, and therefore invalid. Second, the defendant argues that the trial court violated his constitutional right to court access by denying him admittance to a law library.

We first determine whether the trial court abrogated the defendant’s right to counsel. The defendant contends that he relinquished his right to counsel only to preserve another constitutional right, the right to a speedy trial. He concludes that a waiver given under such circumstances is involuntary, and therefore invalid. We disagree with the defendant’s portrayal of the circumstances surrounding his waiver and, therefore, reject this argument.

We begin consideration of the defendant’s claim by examining issues raised under the State Constitution, see State v. Ball, 124 N.H. 226, 231, 471 A.2d 347, 350 (1983), citing authority from other jurisdictions solely for its helpfulness in making our own analysis. See Michigan v. Long, 463 U.S. 1032, 1040-41 (1983).

The New Hampshire and Federal Constitutions guarantee a defendant facing criminal prosecution both the right to counsel and the [238]*238right to proceed pro se. U.S. Const, amend. VI; N.H. Const, pt. I, art. 15; Faretta v. California, 422 U.S. 806, 807 (1975); State v. Barham, 126 N.H. 631, 636, 495 A.2d 1269, 1273 (1985), habeas corpus dismissed sub nom. Barham v. Powell, 895 F.2d 19 (1st Cir.), cert. denied, 495 U.S. 961 (1990). Yet these entitlements are antithetical, and the exercise of one right nullifies the other. Lewis v. Powell, 135 N.H. 490, 496, 607 A.2d 603, 605, cert, denied, 113 S. Ct. 259 (1992). Thus, we respect a waiver of the right to counsel only if the defendant has evinced an understanding of the right and has asserted an unequivocal desire to relinquish it. State v. Barham, 126 N.H. at 637, 495 A.2d at 1273. Moreover, the decision to forgo the right to counsel must be voluntary. State v. Decker, 138 N.H. 432, 436, 641 A.2d 226, 228 (1994). In determining whether a waiver is voluntary, “the trial court must consider the totality of the surrounding circumstances.” Id. (quotation and citations omitted). A defendant’s decision to waive his right to counsel will not be deemed involuntary simply because he was asked to choose between waiver and some other course of action. United States v. Moya-Gomez, 860 F.2d 706, 739 (7th Cir. 1988), cert, denied, 492 U.S. 908 (1989). A defendant may be asked to make such a choice provided that “the choice presented to him is not constitutionally offensive,” id., and does not thereby violate the defendant’s right to due process. See State v. Linsky, 117 N.H. 866, 879-81, 397 A.2d 813, 822. (1977).

Here, two judges urged the defendant to accept legal' representation. In a lengthy colloquy with the defendant, the court expressed its concern that the defendant would be incapable of waging an effective defense and probed his understanding of trial practice, emphasizing the various dangers and pitfalls confronting pro se litigants. The prosecutor noted that the defendant was facing serious charges, which could result in his substantial incarceration. Still, when given a clear choice between accepting a continuance or proceeding pro se, the defendant explicitly elected the latter. Therefore, unless the choice presented to the defendant rose to the level of a due process violation, see Linsky, 111 N.H. at 879-81, 379 A.2d at 822, the manifest certainty with which the defendant made his decision rendered his waiver voluntary.

The New Hampshire and Federal Constitutions guarantee criminal defendants the right to a speedy trial. U.S. CONST, amend. VI; NiH. CONST, pt. I, art. 14. The question in all such cases is whether the pretrial delay at issue was reasonable. State v. Langone, 127 N.H. 49, 53, 498 A.2d 731, 733 (1985). We make this determination under the State Constitution by engaging in the factor analysis adopted in Barker v. Wingo, 407 U.S. 514, 530-33 (1972), for resolving federal speedy trial claims. State v. Fletcher, 135 N.H. 605, 607, 607 A.2d 958, 960 (1992).

[239]*239Our usual assessment of a contested pretrial delay entails consideration of the delay’s length and reason, whether the defendant asserted his right to a speedy trial, and whether the delay has disadvantaged the defendant. State v. Maynard, 137 N.H. 537, 538, 629 A.2d 1345, 1345-46 (1993). We balance these factors, however, only when the challenged delay is presumptively prejudicial.

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Bluebook (online)
652 A.2d 136, 139 N.H. 235, 1994 N.H. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-panzera-nh-1994.