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Cousins v. State

Court of Special Appeals of Maryland

February 1, 2017


          Arthur, Leahy, Thieme, Raymond G., Jr., (Senior Judge, Specially Assigned) JJ.


          ARTHUR, J.

         On the day before his robbery trial was to begin in the Circuit Court for Baltimore County, Earl Sylvester Cousins asked to discharge his court-appointed counsel. In accordance with Md. Rule 4-215(e), the court allowed Mr. Cousins to explain the reasons for his request, but found that he did not have good cause to discharge counsel. The court proceeded to inform Mr. Cousins that the trial would proceed as scheduled and that he would have to represent himself if he discharged his counsel. Mr. Cousins said that he would discharge his counsel and represent himself.

         When the trial began the following day, Mr. Cousins announced his intention to disrupt the proceedings, and he engaged in a profanity-laden tirade against the judge. The court ordered that he be removed from the courtroom, but offered him the opportunity to return if he agreed to behave in a civil fashion. Mr. Cousins did not agree.

         The jury convicted Mr. Cousins of robbery, and the court sentenced him to 15 years' imprisonment.


         Mr. Cousins presents two questions for our review:

I. Did the trial court abuse its discretion in finding that [Mr. Cousins] lacked a meritorious reason to discharge counsel, including that it failed to conduct any inquiry into a possible conflict after assigned counsel said he was conflicted?
II. Did the trial court err when it removed [Mr. Cousins] from the courtroom during his trial without providing him with any means to monitor the proceedings?

         We affirm.


         On September 13, 2014, Mr. Cousins entered the First Mariner Bank on Loch Raven Boulevard in Baltimore County and surveyed his surroundings. A teller asked Mr. Cousins if he needed help, and he replied that he was looking for his grandmother. Then he exited the bank.

         Approximately 45 minutes later, Mr. Cousins returned with a second man. One of the men approached the teller and asked her to make change. The other approached another teller and said, "I want everything you got in your drawers, don't give me a dye pack, don't give me bait money and I've got a gun so don't make me use it[.]"

         Footage from the bank's surveillance system, which showed the incident, was played in court, and still photographs from the surveillance cameras were introduced into evidence. A teller identified Mr. Cousins as the man who robbed her. A detective identified Mr. Cousins based on his detailed review of the surveillance footage, photographs of Mr. Cousins, and time that he spent interviewing Mr. Cousins.

         Baltimore County detectives arrested Mr. Cousins and interviewed him regarding the robbery. A video-recording of the interview was played for the jury. In the recording, Mr. Cousins told the detectives that he committed the robbery with a man named Nelson. Mr. Cousins explained that he was addicted to drugs and that he committed the robbery to obtain money to buy drugs. Mr. Cousins identified Nelson and himself in photographs. A detective testified that he also interviewed Nelson and learned that the two were "associates."

         We shall provide additional facts as necessary in our discussion of each of the issues presented.


         I. Mr. Cousins' Request to Discharge Counsel

         A. February 5, 2015, Postponement Hearing Before Judge Cahill

         Mr. Cousins first expressed disagreement with his appointed counsel at a hearing on February 5, 2015, at which defense counsel requested a postponement. Mr. Cousins stated that he did not agree to the postponement. He said, "I'm ready for trial today for real. I don't even need him [defense counsel] . . . I'm ready to go and I have a lawyer and it ain't him . . . John Deros is my lawyer now." Apparently addressing the prosecutor, Mr. Cousins added, "How do you like that, asshole?"

         The court granted the postponement, and advised Mr. Cousins to "tell Mr. Deros the trial is now April 7, 2015."

         B. March 25, 2015, Hearing Before Judge Cahill

         By the time of a subsequent hearing on March 25, 2015, private counsel had not yet entered an appearance. At that hearing, Mr. Cousins's appointed counsel expressed concern over his ability to communicate with his client and requested a competency evaluation:

[DEFENSE COUNSEL]: … I'm asking Your Honor to enter an Order for an examination for competency as well as criminal responsibility as long as I'm having him evaluated. You may recall our last appearance before Your Honor when the matter was postponed on the last trial date. Mr. Cousins had some choice words for Mr. Cox [the prosecutor]. . . . Over the course of the last month to six weeks, Mr. Cox and I have been attempting to resolve some discovery issues, most of which have been resolved and as I collected that discovery . . . I have gone to see my client and review those with him. Those conversations deteriorate to the point where I'm not, I don't believe that Mr. Cousins, it deteriorates to the point where he's not a meaningful participant in one, reviewing the discovery with him and two, being able to participate in strategy decisions or litigation. . . . But based on the demeanor, I think it's important to have him evaluated so that if there's something we can do to, to help him be a meaningful participate, participant in, in trial preparation and litigation, I'd, I'd rather have that done before we did anything else.

         Later in the proceedings, Mr. Cousins explained that the case had previously been postponed and that he was supposed to get another attorney, but that this had yet to happen. The following colloquy between Mr. Cousins and the court ensued:

[MR. COUSINS]: I seen my attorney and every time I see him, it's the day before trial, okay? Now, we was going in front of Judge Ensor, right? If you don't have everything that you need for the case, then that's a discovery violation. Don't get mad at me when I ask you for certain things. I like to go over things concerning my case because when it's all over with, I'm the one in prison, he's the one home with his family, you know what I mean? I've been in prison twenty-five years, it ain't, it ain't a pretty feeling, right? But don't tell me no lie, tell me anything get mad when I question what's having something to do with me, you know? I don't be disrespectful to you. I was trying to talk to you in the bullpen, you walked away from me. You want me to respect you, I respect you but don't tell lies and don't think that you going to do anything to me because I'm not going to let you do that to me.
[COURT]: All right. Easy, Mr. Cousins. Let me ask you this. You just referred to the fact that you had another attorney entering an appearance?
[MR. COUSINS]: I was trying to get a, John (inaudible) and they talked, I don't know what's going on with it.
[COURT]: Well, did you hire Mr. Diros (phonetic)?
[MR. COUSINS]: I was trying to.
[COURT]: Okay. It would be exceedingly unwise, in my professional judgment, for you to discharge [defense counsel] at that, at this point in time, when discovery is being exchanged and he, in my independent judgment, is trying to look out for your best interest. But if you're, are you asking to discharge [defense counsel] at this point in time?
[MR. COUSINS]: Yes, sir. Yes, sir. I'm asking --
[COURT]: Okay and, and then you would be left without a lawyer, is that what you want to do?
[MR. COUSINS]: I'd be left without a lawyer. If I'm going to give myself, I can get myself some time, I can throw myself on the mercy of the Court because we are not seeing eye to eye okay?
[COURT]: Okay.
[MR. COUSINS]: And you know --
[COURT]: Is there any other reason, aside from what you've expressed, to support your request --
[MR. COUSINS]: Well, how do I, how do I communicate with somebody who don't want to communicate with me? I can't walk out the County jail and say, hey, I want, I call your office, you come and see me three times, and its [sic] every time before Court date. You don't come and see me, I'm right down the street from you. You got mad yesterday, I can't watch the videos, I don't have the pictures, all I have is police reports and some other stuff, you know, I don't have the things that I'm supposed to have. I filed my Motion for discovery, I filed for bail review, I filed for the things I needed, you know, I don't have none of them. I don't have no responses to that . . .

         Defense counsel argued that the court should not rule on Mr. Cousins's request to discharge counsel until it had resolved the issue of competency. The court agreed:

[DEFENSE COUNSEL]: I would think that should the evaluation come back that he's competent and, and the Court wants to address that again, that is absolutely appropriate but this is too serious a matter to leave him without counsel, at least at this junction.
[COURT]: Couldn't agree more. So at this point in time, based on the limited colloquy that we've had on the bench, or from the bench I should say, I do not find that there are good reasons or meritorious reasons to support a discharge of [defense counsel] and the Office of the Public Defender. That's a, that's a matter that I can take up again down the road but I'm going to deny any request, to the extent that I must under Maryland law, complicated as it is, interpret what you said and request a discharge at this time, that request is denied. I'm going to grant the request to postpone the trial in this case.

         The court concluded the proceeding by indicating that it would "sign the Order for examination for competency to stand trial, criminal responsibility."[1]

         C. May 28, 2015, Motions Hearing Before Judge King

         After finding Mr. Cousins competent to stand trial on May 28, 2015, the court heard pretrial motions, which included a motion to suppress Mr. Cousins's recorded statement to the police. The recording of Mr. Cousins's statement was played and transcribed into the record. In the statement, Mr. Cousins admitted that he had been using large amounts of cocaine and heroin, that he was intoxicated when he committed the robbery, and that he committed the robbery to obtain money to buy drugs.

         Appointed counsel, who was still representing Mr. Cousins, argued that the court should suppress the statement because Mr. Cousins did not give a knowing and voluntary waiver of his Miranda rights. He maintained that Mr. Cousins's admission to recent and extensive drug use, in addition to his demeanor while making the statement, demonstrated that he was intoxicated or in withdrawal and that his statement could not have been voluntary. The court denied the motion.

         D. February 1, 2016, Motions Hearing Before Judge Cahill

         On February 1, 2016, the day before the trial was to begin, the court held a hearing to address a letter that Mr. Cousins had written to the court. Before the court read the letter into the record, it asked Mr. Cousins if he wished to discharge his counsel.

         Mr. Cousins responded by complaining of defense counsel's failure to introduce a portion of his police interview during the motions hearing on May 28, 2015. The portion of the interview in question showed him lying on the floor for several hours, asleep or unconscious, in a manner consistent with intoxication or withdrawal. Specifically, Mr. Cousins said:

[T]he issue that I'm bringing towards the Court was we had a Motion hearing and we were shown, the disc was shown concerning the police interrogation and the whole disc was not shown, parts was withheld and the parts (inaudible) showing me high, sick, laying on the floor with a sheet wrapped around me. Now if you're going to show the disc, if you're going to show what happened at the arrest, then show the whole disc . . . . You know, and it deals with my arrest too, and I was high and if you going to withheld something, that's prosecutor misconduct. My attorney know what was withheld from the Judge and I wrote Judge King and as far as him trying not to go in front of Judge King. Judge King even said, if we have any other problems or anything, bring it to him. Okay? I asked him to go back to him and let him know . . . If you're going to show the disc, show the whole disc (inaudible) and to say we're going to trial for the 13th case, [2]no, no, no, we ain't going nowhere. This man is not going to represent me. If you're going to give me a trial, give me a fair trial, don't show what you want to show. The whole disc deal with my arrest and that's where I'm at with that and let's go over this, let's go over, let's show the disc, let's show what he redact from the disc and let's take it in front of the Motion Judge. That's have a fair trial. If we're going to have a trial, have a fair trial, you know?

         The court read Mr. Cousins's letter into the record. Mr. Cousins's grievances included these:

1. The prosecutor had withheld a portion of the video-recording that was shown to the motions court. The part of the recording shows him on the floor with a sheet wrapped around him, withdrawing from drugs.
2. On the day he used profanity in addressing the prosecutor, he had asked to represent himself, and asked his attorney whether there were "any prints, " but his attorney said "no."[3]
3. He said, "I don't need [defense counsel] to get me life. I could get myself that and that's when I cussed [the prosecutor] and [defense counsel] out."
4. He "spent twenty-three years in prison because [he] had ten whites, two blacks and all from ...

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