State v. Thomas

840 A.2d 803, 150 N.H. 327, 2003 N.H. LEXIS 192
CourtSupreme Court of New Hampshire
DecidedDecember 9, 2003
DocketNo. 2002-079
StatusPublished
Cited by13 cases

This text of 840 A.2d 803 (State v. Thomas) 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. Thomas, 840 A.2d 803, 150 N.H. 327, 2003 N.H. LEXIS 192 (N.H. 2003).

Opinion

NADEAU, J.

The defendant, Terry Thomas, appeals his conviction on three counts of receiving stolen property, see RSA 687:7 (1996) (amended 2001), following a jury trial in the superior court. We affirm.

On appeal, the defendant contends that the trial court erred by failing to conduct a “penetrating and comprehensive” Faretta colloquy before allowing him to proceed pro se at trial, see Faretta v. California, 422 U.S. 806, 884-35 (1975); cf. State v. Barham, 126 N.H. 631, 637-38 (1985), and by denying his request for a transcript of his earlier suppression hearing to use for impeachment purposes at trial. The defendant also contends that he has a State and federal constitutional right to proceed pro se in this appeal. See N.H. CONST. pt. I, art. 15; U.S. CONST. amend. VI. He urges us to reject the United States Supreme Court’s reasoning in Martinez v. California, 528 U.S. 152 (2000), in which it held that a defendant has no federal constitutional right to proceed pro se on appeal.

I. The Defendant’s Waiver of the Right to Counsel at Trial

Citing Part I, Article 15 of the New Hampshire Constitution and the Sixth Amendment of the Federal Constitution, the defendant first argues that the trial court failed to conduct an adequate colloquy before allowing him to represent himself. He contends that although the record reflects that he wanted to represent himself, it does not reflect that he was capable of doing so or that he understood the risks. We first address his claim under the State Constitution, see State v. Ball, 124 N.H. 226, 231 (1983), and cite federal opinions for guidance only, see id. at 232-33.

The New Hampshire Constitution grants a criminal defendant either the right to counsel or the right to represent himself in defense of a criminal prosecution. See N.H. CONST. pt. I, art. 15. The exercise of one right, however, nullifies the other. See State v. Panzera, 139 N.H. 235, 237-38 (1994). We therefore respect a defendant’s waiver of the right to counsel only if he evinces an understanding of what the right to counsel encompasses, and asserts an unequivocal desire to relinquish it. See id. at 238. “[Ojnce a defendant has clearly and unequivocally expressed his desire to represent himself, the court must ascertain whether the choice has been knowingly and intelligently’ made and, if so, must then allow the defendant to proceed pro se.” State v. Barham, 126 N.H. at 639. The United States Supreme Court has found that if a defendant is “literate, competent, and understanding, and ... voluntarily exercising his informed free will,” then a waiver may be found to be knowing and intelligent. Faretta v. California, 422 U.S. at 835. The defendant contends that because the trial court failed to conduct a sufficient colloquy, his waiver [329]*329was not knowing, voluntary and intelligent. Based on our review of the record, we disagree.

In January 2000, the defendant sought a change in his assigned counsel, requesting that his new counsel be appointed to participate as co-counsel with him in his defense. At that time, he advised the court that he had some college education. The Trial Court (Hollman, J.) warned him that it would be “dangerous” for him to undertake the examination of a witness without any trial experience or knowledge of the rules of evidence, and suggested that he could further discuss his proposed role with his new assigned counsel. In subsequent hearings, the defendant received explanations about the effect of stipulations, potential sentences and consolidation of charges.

In 2001, after at least four different lawyers had been appointed to represent the defendant, he again sought new counsel. The Trial Court {Groff, J.) denied his motion and the defendant opted to proceed pro se. The court appointed his then current counsel as stand-by counsel; the court’s order provided a detailed explanation of the role of stand-by counsel. At a second hearing that day, the Trial Court {Hampsey, J.) again emphasized the responsibility that the defendant was assuming and asked him whether he wished to reconsider his decision to proceed pro se; the defendant reaffirmed his decision. At a subsequent hearing in May 2001, the defendant confirmed that he had decided to proceed pro se and represented that he would be ready to go to trial on the following Monday if he received some assistance with the service of subpoenas; the Trial Court {Galway, J.) made arrangements for service. The defendant also renewed his request for the appointment of replacement stand-by counsel; the trial court denied his request, finding that it was a delaying tactic. See Super. Ct. R. 15 (withdrawal of attorneys not permitted after case assigned for trial except upon motion granted by court for good cause shown).

More than once, the trial court judges made the defendant “aware of the dangers and disadvantages of self-representation.” State v. Barham, 126 N.H. at 637 (quotation omitted). The judges repeatedly explained the responsibilities the defendant would assume if he elected to proceed pro se; he was also afforded many opportunities to reconsider his decision. Thus, while the defendant’s decision to proceed pro se may have been to his detriment, see State v. Weitzman, 121 N.H. 83, 86 (1981), it was knowing, intelligent and voluntary. While we strongly prefer that trial court judges conduct an inquiry with a defendant who wishes to waive his right to counsel, see State v. Davis, 139 N.H. 185, 191 (1994) (setting forth [330]*330model colloquy for waiver of right to counsel), the trial court in this case had sufficient evidence to conclude that the defendant’s waiver was valid.

Because the Federal Constitution offers the defendant no greater protection than our State Constitution under these circumstances] see Faretta v. California, 422 U.S. at 834-35; State v. Barham, 126 N.H. at 638-39, we reach the same result under the Federal Constitution.

II. The Defendant’s Right to a Transcript

The defendant next contends that the trial court’s denial of his request for a transcript of his suppression hearing violated his State and federal constitutional rights to due process and a fair trial. We first address his claim under the State Constitution, see State v. Ball, 124 N.H. at 231, and cite federal opinions for guidance only, see id. at 232-33.

We have previously recognized that the right to a transcript is not absolute. See State v. Cofske, 129 N.H. 133, 135 (1987). In Britt v. North Carolina, 404 U.S. 226 (1971), the United States Supreme Court “identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.” Britt, 404 U.S. at 227. We have observed that “[djefense counsel need not be clairvoyant in delineating specific need for a transcript on the part of an indigent defendant.” State v.

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Bluebook (online)
840 A.2d 803, 150 N.H. 327, 2003 N.H. LEXIS 192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thomas-nh-2003.