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Weathers v. State

Court of Special Appeals of Maryland

December 1, 2016


          Woodward, Graeff, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ.


          Thieme, J.

         As Judge Moylan, writing for this Court, has stated: "The law could not be more clear that a wide discretion is vested in the trial judge to control the course of the trial and the exercise of such discretion will not be reversed on appellate review except on those rare cases where there has been a clear abuse of that discretion." Thrifty Diversified, Inc. v. Thomas R. Searles, 48 Md.App. 605, 615 (1981). This is one of those rare cases.

         Appellant, Robert Antoine Weathers, was convicted by a jury in the Circuit Court for Baltimore County, Maryland of theft of property with a value of at least $10, 000 but less than $100, 000. After he was sentenced to fifteen years and ordered to pay $40, 000 in restitution, appellant timely appealed. Summarily rephrased, appellant presents the following question for our review:

Did the circuit court abuse its discretion in finding that there was no meritorious reason for appellant's request to discharge counsel and in denying his request for a postponement?

         For the following reasons, we agree that the court abused its discretion in this case and shall vacate the judgment of conviction.


         Appellant was charged with numerous thefts from jewelry and liquor stores in Baltimore County, Maryland during the spring and early summer of 2014. Because of potential conflicts with the Office of the Public Defender involving a codefendant, Spencer K. Gordon was assigned to represent appellant in this case as well as three other cases that were charged in the Baltimore County Circuit Court. Ultimately, resolution of this appeal depends on our review of the June 8, 2014, denials of appellant's requests to discharge Gordon. However, we shall first include a brief discussion of the background of this issue for context.[1]

         On December 8, 2014, at a pretrial postponement hearing involving three of appellant's cases, as well as several cases for the codefendant, Robin Tracy Nelson, appellant expressed his dissatisfaction with Gordon by informing the Chief Administrative Judge as follows:

I don't think I'm going to use Mr. Gordon, Your Honor, because he's ineffective assistance of counsel as of right now. I haven't talked to him or nothing. He's trying to move the case forward, and I'm going to have a paid attorney, Roland Brown, represent me on the rest of these cases.

         Appellant maintained that he not only wanted to be tried by a jury, but he also wanted all of his cases tried separately. He further informed the court that "I don't have nothing to say to Mr. Gordon. That's not my attorney. That's Mr. Brown, Your Honor - [.]" After earlier acknowledging that Gordon was not present during the beginning of this hearing, having gone to another courtroom, the court remarked "[i]f you wish to get new counsel or if you're dissatisfied with counsel in any way, you need to take care of that before you come back here."

         After the cases were postponed, and following a short recess, Gordon appeared in court and the court then turned to appellant's request to discharge counsel. Appellant explained why he wanted to discharge Gordon:

[APPELLANT]: Like I said, he was ready to go to trial on this case up here right here, and he hasn't done any type of investigating or any type of homework whatsoever; so how can we move forward when he don't even know anything about the case?

         The court asked Gordon if it was his understanding that the cases would be postponed and Gordon replied:

[DEFENSE ATTORNEY GORDON]: Well, it was my understanding - I told the State that because there was so much discovery in so many cases that I did not feel in a position to go to trial and that I would be asking for a postponement. [The prosecutor] sort of extended me the courtesy of agreeing that if my postponement request was denied that he would put the simplest, what he viewed as the simplest case, and I would concur on first.
So my understanding was I was going to be asking for a postponement, but if it were denied, that's the case that would be tried. I was trying to discuss this with Mr. Weathers back there, and the next thing I knew he was screaming at me; and I just sort of terminated the conversation.

         The court asked Gordon if he was prepared to go forward if the case were not postponed, and Gordon answered:

Your Honor, if push had come to shove, I think I could have gone forward on it. I know that Mr. Weathers hired Mr. Brown on another case. From talking to him at the jail, I think his preference would be for the case to be postponed so that he could try to get Mr. Brown in on that - whatever case is going to go to trial, I think he wants Mr. Brown in on that.

         The court then denied appellant's request to discharge Gordon, stating:

[THE COURT]: I don't find meritorious cause to discharge him, but I understand that may be your preference to hire another attorney. I need you to understand that we postponed this case until March, all right? Anything you're going to do in terms of a change in counsel needs to be done before that date because otherwise if Mr. Gordon is here and saying he's ready to go to that date, you may if you choose to discharge him at that point, you may not get another postponement. So whatever you need to do or whatever you wish to do in terms of counsel, please make sure it's done well in advance of that trial date, all right?
THE DEFENDANT: Thank you, Your Honor.

         Approximately three months later, on March 3, 2015, appellant and Gordon appeared before the Administrative Judge Designee (hereinafter "Administrative Judge"). At that time, the Administrative Judge was informed that appellant had four theft cases where he was represented by Gordon, and another case where he was represented by Roland Brown. After being informed that appellant had expressed dissatisfaction with Gordon, the Administrative Judge inquired whether Gordon was prepared for trial and Gordon replied:

[DEFENSE ATTORNEY GORDON]: Well, in all candor, Your Honor, the answer to that would be no, and the reason for that is because the last time the cases were in, [the prosecutor] intended to try one in particular. That's the one that I prepared for on that date, and I did not have any reason to think that that would not be the one to be tried first this time until yesterday when he told me that, in fact, it was one of the other ones that he is going to try first which is why my paralegal now has the files and is organizing materials so that I can prepare properly for that one.

         The State informed the court that this case was originally scheduled to be tried a week later, but that, because the attorney for appellant's co-defendant was unavailable, the case would need to be postponed. Gordon informed the Administrative Judge that he could be prepared to proceed in this case, but that it was possible that he would ask for a postponement. Gordon then continued:

[DEFENSE ATTORNEY GORDON]: Yes. And for the record, just one additional thing. Obviously, Mr. Weathers wanted to be represented by Mr. Brown. I mean, they did - his family did retain Mr. Brown. I guess only had the money to retain him on one case. Obviously, the State can't be forced to try any particular case, but I did speak with his mother this morning; and she has been trying to get in touch with Mr. Brown to make arrangements to retain him on some or all of the remaining cases, so I hope to get confirmation one way or the other on that within the next couple of days.

         The court then asked appellant to give his reasons for wanting to discharge Gordon, and the following ensued:

THE DEFENDANT: Yes. First of all, Your Honor, this is the second time I've seen him considering this whole situation, and as far as the cases that I'm being tried on, I only seen him about one case. The other three cases that the prosecutor had mentioned, me and him have never talked about anything. I have received my motion of discovery, right. I'm in the process of paying Mr. Brown, but I haven't finished paying him yet; so I do want him to represent me as a lawyer in court.
THE COURT: Well, why are you dissatisfied with the representation of Mr. Gordon?
THE DEFENDANT: Because I mean -
THE COURT: That's the question.
THE DEFENDANT: He hasn't done anything for my case, Your Honor, nothing whatsoever. I mean, he hadn't been to see me but once. That was, like, about four months ago.

         After Gordon again assured the Administrative Judge that there was no reason why he could not be prepared, the court found there was no meritorious reason to discharge Gordon, as follows:

THE COURT: All right. I find that there's no meritorious reason for the discharge of Mr. Gordon at this time. Now, since I've reached that conclusion, I cannot - I must advise you now that I cannot legally prevent you from discharging or firing Mr. Gordon if that's what you want to do.
You have the right to represent yourself in - come next Tuesday, but if you fire your attorney right now, make no mistake about it. This trial, one of these two trials will proceed as scheduled. You'll be representing yourself if you have not hired another attorney and if that other attorney is not prepared to represent you.
So under the circumstances, is it - do you - so here's the way it is. If you fire him right now, you're going to be without any attorney, and I'm not making a postponement decision in this case based on the March 10th trial date nor would I postpone the case. Has it been postponed before?
[PROSECUTOR]: Numerous times.
THE COURT: So I don't believe that the law requires me to give Defendants these endless opportunities to make decisions about who to hire. I think that this is not the first time this issue's been raised before the Court, and under the circumstances, if I'm the postponement judge, you can count on not getting a postponement. So at that point in time, you'll be representing yourself. Do you wish to fire Mr. Gordon today with the idea that you will be left representing yourself come March 10th, 2015? Yes or no?

         The Administrative Judge then conducted a waiver inquiry and informed appellant about what would be required if appellant decided to represent himself at trial. Ultimately, the court concluded that appellant knowingly and voluntarily waived his right to counsel. The court then asked appellant if he was firing Gordon in all of his cases and appellant replied, "I didn't know I had him on all of my cases, Your Honor." At that point, the State informed the court that it was not sure which case it would try first and that it "would choose a case where [Gordon] would adequately be prepared." The Administrative Judge then directed the parties to resolve which case was being tried first in order to ensure that appellant's decision to waive counsel was made "on a knowing basis."

         After a recess, the State informed the court that it would proceed on two different cases, other than the case under consideration, and Gordon responded that he was prepared in those other cases. Based on this clarification of the trial schedule, the Administrative Judge again gave appellant a chance to discharge Gordon, but, before appellant could respond, Gordon suggested that the State and the court consider first trying appellant in the case where he was represented by Roland Brown. Although the court noted that depended entirely on attorney Brown's schedule, appellant indicated his agreement with this suggestion.

         Thereafter, and without a firm decision which of the numerous theft cases against appellant would be tried first, the court and the appellant engaged in the following colloquy:

THE COURT: That's all fine. The question here is, do you want to fire Mr. Gordon in these other cases, yes or no? You've heard my explanations and you've given your responses. Do you want to fire him in these cases? I firmly recommend against it, but you do what you want.
THE DEFENDANT: No. I will keep him, Your Honor.
THE COURT: Okay. So noted. Thank you.

         Six days later, on March 9, 2015, the Administrative Judge granted another postponement for appellant in this case. Notably during the course of that hearing, which also included requests for postponement from appellant's co-defendant, Nelson, Gordon proffered that, since the last hearing, Roland Brown secured an acquittal for appellant in another similar case in a neighboring jurisdiction. Based on that, appellant requested that a different case, where he was also represented by Brown, be tried first. However, the Administrative Judge denied further postponement in that case.

         Returning to the case under consideration here, the following colloquy at this March 9th hearing occurred:

THE COURT: Again, Mr. Weathers, is it your desire to engage the services of new counsel for this case?
THE DEFENDANT: Yes, Your Honor, all the cases that Roland Brown represents -
THE COURT: Wait a minute. Somebody's stepping on something. Everybody, check your feet. All right. It appears to have been cured. So I'm sorry. What did you say, Mr. Weathers?
THE DEFENDANT: I said the cases that Roland Brown is not representing me, the cases that he hasn't stood in yet to represent me on, I'm asking can I require [sic] counsel for those cases? I've already hired counsel for those cases.
THE COURT: Oh, aside from the one where you just said you've hired Mr. Rosenberg?[2]
THE DEFENDANT: Right. On all the cases that he's been filed on -
THE COURT: That what?
THE DEFENDANT: All the cases that he's been filing on, I have counsel that's representing me.
THE COURT: Okay. Well, I don't think I permitted the - you to discharge Mr. Gordon the last time you ...

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