State v. Sweeney

867 A.2d 441, 151 N.H. 666, 2005 N.H. LEXIS 9
CourtSupreme Court of New Hampshire
DecidedJanuary 24, 2005
DocketNo. 2003-578
StatusPublished
Cited by25 cases

This text of 867 A.2d 441 (State v. Sweeney) 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. Sweeney, 867 A.2d 441, 151 N.H. 666, 2005 N.H. LEXIS 9 (N.H. 2005).

Opinion

Galway, J.

The defendant, John Sweeney, appeals his convictions by a jury for one count of aggravated felonious sexual assault, see RSA 632-A:2, III (Supp. 2004), and one count of felonious sexual assault, see RSA 632-A:3, II (Supp. 2004). We reverse and remand.

On appeal, the defendant argues that the Superior Court {Smith, J.; Perkins, J.; Smukler, J.) erred by denying his motions: (1) to fire his trial attorney; (2) to introduce certain medical records; (3) for services other than counsel; (4) to strike four jurors; (5) for a bill of particulars; and (6) to dismiss. The defendant also contends that the trial court erroneously failed to engage in a colloquy with him regarding his waiver of his privilege against self-incrimination.

I

On the first day of trial, before the jury was sworn in, the court conducted a hearing regarding whether the tapes of certain recorded conversations were authentic. During the prosecution’s direct examination of a witness, the defendant asked if he could speak to the trial judge “privately.” The trial judge replied, “No, sir. It’s not allowed.” When the defendant again attempted to speak to the trial judge, the following exchange occurred:

THE COURT: Mr. Sweeney, you are represented by very, very competent counsel. One of the things that lawyers worry about a great deal is somebody saying something that’s going to harm their case. For that reason, we have a general rule that we do not allow individuals who are represented by counsel to speak unless they’ve been put on the stand by their lawyer.
MR. SWEENEY: Yes, sir, I understand that. You told me that the other day. But this tape number two—
THE COURT: Mr. Carroll will make any arguments for you that have to be made.
MR. SWEENEY: He’s refused to make that argument, your Honor.
[669]*669THE COURT: Well, then, as long as you’re represented by him,
Mr. Sweeney, then you have to pay attention to him.
MR. SWEENEY: Well, sir, do I have the right to fire my lawyer?
THE COURT: At this point in time, no. We’re on the verge of starting the jury trial, sir. You’ve been represented by Mr. Carroll—
MR. SWEENEY: For ten months, sir.
THE COURT: Yes. Okay.
MR. SWEENEY: And I wasn’t aware of this false statement until 22 March, sir. And this tape was overprinted and on Saturday last week, the overprint was missing from the tape when I heard it again. I’ve only heard the tape twice. And now it’s missing.
THE COURT: You’re speaking again, sir. You should let Mr. Carroll do your talking.
MR. SWEENEY: Your Honor, I’m entitled to a fair trial.
THE COURT: That’s right.
MR. SWEENEY: And I don’t believe, like I stated in my arraignment, I’m getting a fair trial because of this gentleman over here.
THE COURT: Well, I can disagree with you becaüse number one—
MR. SWEENEY: That’s fíne, your Honor, thank you.
THE COURT: Thank you. Proceed.

(Emphasis added.)

The defendant argues that in this exchange, he “clearly and unequivocally expressed his desire to tire his attorney and to represent himself.” He asserts that the trial court violated his State and federal constitutional rights and committed reversible error by summarily denying his request. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, VI, XIV. We first address the defendant’s claim under the State [670]*670Constitution, relying upon federal decisions for guidance only. State v. Ball, 124 N.H. 226, 231-33 (1983).

Both Part I, Article 15 of the State Constitution and the Sixth Amendment to the United States Constitution guarantee a criminal defendant the right to self-representation and the right to counsel. State v. Ayer, 150 N.H. 14, 25 (2003), cert. denied, 124 S. Ct. 1668 (2004); see also Faretta v. California, 422 U.S. 806, 819 (1975). The two rights are mutually exclusive; the exercise of one right nullifies the other. Ayer, 150 N.H. at 25. To be effective, an assertion of the right to self-representation must be: (1) clear and unequivocal; (2) knowing, intelligent and voluntary; and (3) timely. See State v. Thomas, 150 N.H. 327, 328 (2003); see also Ayer, 150 N.H. at 26.

The requirement that asserting the right to self-representation be clear and unequivocal “is necessary to protect against an inadvertent waiver of the right to counsel by a defendant’s occasional musings on the benefits of self-representation.” United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir.), cert. denied, 531 U.S. 994 (2000) (quotations 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.

To invoke the right to self-representation, a defendant need not “recite some talismanic formula.” Buhl v. Cooksey, 233 F.3d 783, 792 (3d Cir. 2000); see also United States v. Betancourt-Arretuche, 933 F.2d 89, 92-93 (1st Cir.), cert. denied, 502 U.S. 959 (1991). “Indeed, such a requirement would contradict the right it was designed to protect as a defendant’s [constitutional] right of self-representation would then be conditioned upon his/her knowledge of the precise language needed to assert it.” Buhl, 233 F.3d at 792. However, “it is generally incumbent upon the courts to elicit that elevated degree of clarity through a detailed inquiry. That is, the 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.” United States v. Proctor, 166 F.3d 396, 403 (1st Cir. 1999).

The State argues that the defendant’s request was neither clear nor unequivocal. While we agree with the State that the defendant’s question did not, by itself, constitute a demand to proceed pro se, see Commonwealth v. Myers, 748 N.E.2d 471, 475 (Mass. App. Ct. 2001), we hold that it was sufficient to trigger the court’s duty to inquire farther, see Proctor, 166 F.3d at 405-06.

[671]*671The trial court had the duty to eliminate the ambiguity the question presented. See id.

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Bluebook (online)
867 A.2d 441, 151 N.H. 666, 2005 N.H. LEXIS 9, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sweeney-nh-2005.