Justice FLAHERTY, for the Court.
Is a trial justice constitutionally required to appoint counsel to represent a pro se defendant who voluntarily absents himself from trial? We hold that neither the United States Constitution, nor article 1, section 10 of the Rhode Island Constitution mandates that counsel be appointed in such a situation. For the reasons set forth in this opinion, we affirm the judgment of conviction for three counts of first-degree child molestation sexual assault in violation of G.L.1956 § 11-37-8.1,
On April 21, 2004, defendant John J. Eddy was indicted on three counts of first-degree child molestation sexual assault and two counts of first-degree sexual assault. On September 13, 2004, an attorney in the Office of the Public Defender entered his appearance on behalf of defendant. On December 16, 2004, defendant filed a motion to discharge that attorney and indicated that he wished to represent himself. On that same day, the motion justice
On February 17, 2005, the trial justice was assigned to defendant's case. At the beginning of a hearing on that date, the trial justice addressed defendant's decision to act in a pro se capacity. An exchange between defendant and the trial justice proceeded as follows:
However, when defendant's second attorney informed the trial justice that defendant had filed a disciplinary complaint against him, and that defendant had expressed his intent to press that complaint with Disciplinary Counsel, the trial justice released defendant's second attorney from the case. The trial justice explained to defendant that if he continued in the case pro se, then the trial justice was going to hold him to "the exact same standard as any attorney" and that he would "get no greater or lesser consideration because [he was] representing [him]self." The defendant indicated to the trial justice that he understood. The trial justice then reminded defendant:
On April 28, 2005, the trial justice conducted a bail hearing, during which the complaining witness testified. Midway through the complaining witness's testimony, defendant requested the appointment of still another attorney. The state objected, declaring that that request was merely a delay tactic. After hearing the state's objection, the trial justice addressed defendant:
The trial justice then ruled on defendant's request. He said:
After the bail hearing on April 28, 2005, the trial justice appointed another attorney (defendant's third attorney) — a lawyer with approximately thirty years of experience — to represent defendant. However, in a letter dated August 3, 2005, defendant once again requested that the third attorney be "completely removed" from his case, and a formal motion to release was filed on August 17, 2005. Two days later, on August 19, 2005, the trial justice held a hearing on defendant's motion to release the third attorney. The following exchange took place:
The trial justice then addressed defendant in order to, once again, ensure that he fully understood what he was undertaking by representing himself. The colloquy occurred as follows:
On September 27, 2005, defendant again expressed his desire to completely remove his third attorney from the case and conveyed that he no longer wished that he remain as standby counsel. Again, the trial justice rendered a lengthy recitation of defendant's history of requesting — and then firing — attorneys. After doing so, the trial justice insisted that defendant's third attorney remain on the case on a standby basis. In response, defendant again requested that he be permitted to go forward in the case alone, stating:
The trial justice again informed defendant that the trial justice had made a determination that defendant's third attorney was competent and that he would remain on the case as standby counsel. The defendant then objected to "an attorney" whom defendant believed to be incompetent "being
Almost four months later, on January 18, 2006, the trial justice heard defendant's motion for a continuance. Although it had already been twenty-one months since defendant was indicted, the trial justice nonetheless granted a continuance for over one month "to try to allow [defendant] the farthest reach of due process and elemental fairness that [he could] without abusing the system."
On February 22, 2006, the matter finally proceeded to trial. The trial justice first provided defendant with an extensive blueprint of how the trial would proceed, immediately before jury selection was to begin. At that point, defendant again inquired about whether he could have counsel appointed to represent him. The trial justice informed defendant that he had had "ample opportunity" to be represented by appointed counsel, and he declined to appoint another attorney on the very morning that the trial was to commence.
It is significant that, before jury selection began, the trial justice instructed the jury pool that defendant had opted to exercise his constitutional right to represent himself, but that that fact "should not engender any sympathy for him[,] * * * nor should it engender any prejudice or bias." The parties then commenced jury selection, and the jury was sworn.
The next morning, defendant again requested the appointment of counsel for the purpose of assisting him in plea negotiations. The trial justice responded:
At that point, defendant expressed his desire to absent himself from the trial in the event a plea agreement was not reached. Specifically, he said, "I don't want to be in the courtroom so the trial may proceed in my absence * * *. I ask that I be allowed to be removed from the courtroom during this process because I don't want to cause a situation of forced removal."
The parties discussed a possible resolution of the case by plea for almost an hour, but they were unable to reach an agreement. The trial justice then addressed defendant's expressed desire to absent himself from the trial proceedings. The following exchange occurred:
The defendant then said that he felt his right to call witnesses had already been taken away from him, but that he understood the rest of the trial justice's recitation of his rights. The trial justice explained that defendant's right to call witnesses had not in any way been impaired, and he then asked defendant, "Are you asking me to do this knowingly, willingly and voluntarily?" The defendant responded, "I am, your Honor," and then he informed the trial justice that he did not desire to be present for the reading of the verdict at the conclusion of the trial. The defendant was then escorted from the courtroom, and the jury was brought in.
Significantly, the trial justice explained to the jury that defendant's voluntary absence from trial "in no way [affected] the rights that he ha[d] as a defendant," including "[t]he presumption of innocence." He then instructed the jury that it "must not in any way prejudice Mr. Eddy for his own desire to be absent from this proceeding."
The trial continued in defendant's absence,
On February 24, 2006, the jury found defendant guilty of all five counts, and a judgment of conviction was entered.
It is well settled that, "when confronted with questions of law on appeal, this Court undertakes a de novo review." State v. Lopez-Navor, 951 A.2d 508, 510-11 (R.I.2008). Likewise, we review "alleged violations of constitutional rights" de novo. State v. Foster, 842 A.2d 1047, 1049 (R.I.2004). However, "[e]ven when the de novo standard is applied to issues of constitutional dimension, we still accord a hearing justice's findings of historical fact, and inferences drawn from those facts, great deference in conducting our review." Thornton v. State, 948 A.2d 312, 316 (R.I. 2008).
Before this Court, defendant argues that: (1) the waiver of his right to counsel at trial was not voluntary; (2) even if his waiver was voluntary, he later revoked that waiver; (3) the trial justice was constitutionally required to appoint counsel — at least on a standby basis — to represent defendant after he chose to proceed pro se and then absented himself from the trial; (4) the trial justice should not have permitted defendant to absent himself from the trial under Rule 43 of the Superior Court Rules of Criminal Procedure, because he was charged with "the Rhode Island equivalent of a capital crime"; (5) his conviction should be overturned because he was tried in Providence County on a criminal offense that allegedly occurred in Kent County, which defendant alleges was an improper venue; and (6) the cumulative effect of all the purported errors requires that his conviction be overturned. We shall address each of these arguments in turn.
The defendant argues that he did not voluntarily waive his right to counsel, and, as a result, he should be afforded a new trial. The defendant attempts to demonstrate that his waiver was involuntary by distinguishing the facts in his case from those in State v. Thornton, 800 A.2d 1016 (R.I.2002), in which this Court held that Thornton validly waived his right to counsel.
"The Sixth Amendment to the United States Constitution and article 1, section 10, of the Rhode Island Constitution provide that in all criminal prosecutions, the accused enjoys the right to the assistance of counsel." State v. Laurence. 848 A.2d 238, 252 (R.I.2004). However, these constitutional provisions "also allow[] a defendant in a criminal trial to represent himself, provided that his waiver of counsel is valid." Id. (citing State v. Spencer, 783 A.2d 413, 416 (R.I.2001); see also Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ("The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.")).
It is well settled that "[t]his Court employs a two-prong analysis to review the validity of a defendant's waiver of counsel: first, we must determine whether the waiver was `voluntary'; then, we must determine whether it was `knowing and intelligent.'" State v. Brumfield, 900 A.2d 1151, 1153 (R.I.2006) (quoting Laurence, 848 A.2d at 253). "When considering the validity of the waiver, we examine the totality of the circumstances." Id. (quoting Laurence, 848 A.2d at 253).
In Laurence — a case that bears a striking resemblance to the matter that is before us — we held that a "defendant's `repeated refusal to accept the services of competent court-appointed defense counsel demonstrates clearly the voluntary waiver of his right to counsel * * *.'" Laurence, 848 A.2d at 253 (quoting Thornton, 800 A.2d at 1026). Laurence was offered the "services of three court-appointed attorneys and one standby counsel, all of whom" he dismissed, despite continued efforts by the trial justice to convince him to accept their representation. Id. at 254, 255. Additionally, Laurence "asserted many times at trial that it was not his desire to represent himself and that he felt coerced into doing so * * *." Id. at 254. Nonetheless, this Court held that "defendant's actions, rather than his words, demonstrate[d] that he waived his right to counsel," id. at 254, and "his continued rejection of competent representation [wa]s the equivalent to a voluntary waiver of his Sixth Amendment right to counsel." Id. at 255. Moreover, this Court held that "he was not in any way unconstitutionally forced to proceed pro se." Id. at 253 (quoting Thornton, 800 A.2d at 1026).
We believe that the facts of Laurence are remarkably similar to the matter that
Finally, the trial justice indicated that he believed that defendant's motive for repeatedly requesting and firing attorneys was to delay the proceedings. He told defendant, "all of the attempts to provide you with prior counsel, to provide you with a bail hearing to which you are entitled within ten days of your arrest have been thwarted by you and you alone. * * * This matter has been pending for over two years now * * * through nobody's efforts but your own."
Based on the totality of the circumstances, we are confident that defendant's waiver of his right to counsel was voluntary. Both his actions and his words demonstrate that his waiver was the product of his own free will. Despite defendant's purported grievances with the manner in which his appointed attorneys conducted his defense, it is well settled that "[t]he Sixth Amendment provides no right to counsel `who would blindly follow [a defendant's] instructions.'" Thornton, 800 A.2d at 1029 n. 14 (quoting McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir.), cert. denied, 474 U.S. 852, 106 S.Ct. 152, 88 L.Ed.2d 125 (1985)). "Nor is there any `absolute right to counsel of one's choice.'" Id. (quoting United States v. Peister, 631 F.2d 658, 661 (10th Cir. 1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981)). As was the case in Laurence, 848 A.2d at 254-55, "[i]t seems obvious that defendant was not willing to work with any counsel in any capacity. This was no fault of the judiciary, which bent over backwards to attain representation for him."
In his brief, defendant attempts to distinguish the facts of his case from those of Thornton. However, in Thornton, 800 A.2d at 1026, the defendant conceded that his waiver was voluntary, and thus, the voluntariness of his waiver was not an issue that was before this Court. Id. at 1026. Instead, the salient issue in that case was whether Thornton's waiver was "knowing and intelligent," such that it satisfied the second prong of the waiver-of-counsel analysis. Id. Because defendant asserts only that his waiver was not voluntary, and he does not argue that it was not knowing and intelligent, defendant's reliance on Thornton is not persuasive.
Next, defendant argues that, even if he had previously waived his right to counsel, he later revoked that waiver at trial. Specifically, he contends that the trial justice erred by not making any specific findings as to defendant's intent behind his request for counsel at trial and, further, that he erred by declining to appoint counsel for defendant after he revoked any waiver that he may have made previously. The state counters by arguing that once a defendant waives his right to counsel, the trial justice has discretion in determining whether counsel should be appointed and that the trial justice in this case was well within his discretion to deny defendant's request at such a late stage in the proceedings. We agree with the state.
When a defendant seeks the appointment of counsel after he or she already has waived that right, a trial justice has more latitude in determining whether to provide the defendant with representation. See United States v. Leveto, 540 F.3d 200, 207 (3d Cir.2008), cert. denied, 557 U.S. 906, 129 S.Ct. 2790, 174 L.Ed.2d 294 (2009); United States v. Solina, 733 F.2d 1208, 1211-12 (7th Cir.), cert. denied, 469 U.S. 1039, 105 S.Ct. 519, 83 L.Ed.2d 408 (1984). The United States Court of Appeals for the Third Circuit described this principle as follows:
Additionally, the United States Court of Appeals for the Seventh Circuit has held that
In this case, on the very morning that the trial was to begin, defendant asked the trial justice what his position would be "should defendant request assignment of counsel." The trial justice responded that he "would deny it if the State [object]ed," reasoning that the state and the complaining witness had the right to move forward and adjudicate the matter. The trial justice then told defendant that he had "had ample opportunity on every occasion to make that request" but that the trial justice was not going to appoint counsel on the day the trial was to begin.
Then, after the jury was empaneled and sworn, defendant explicitly requested that counsel be appointed for the purpose of "the possibility of plea negotiations" with the state. The trial justice informed defendant that jeopardy had attached and that the trial needed to move forward. The trial justice reiterated that defendant "had ample opportunity to" enter into plea negotiation and had "steadfastly resisted all attempts by th[e] Court to afford [him] competent reasonable legal assistance."
The defendant argues that the trial justice erred by not making an explicit determination as to whether defendant's post-waiver request for counsel was made in bad faith for the purpose of delay or disruption; however, it is our opinion that the trial justice's determinations were sufficient. As the Third Circuit has said:
Given defendant's colorful history of requesting representation, then stridently demanding that his attorneys be discharged, there is ample evidence to support the trial justice's conclusion that defendant had attempted to delay the proceedings at every stage of this case. As in Leveto, 540 F.3d at 208, "[i]mmediately before [defendant]'s morning-of-trial request for counsel," the trial justice in this case found that defendant had consistently attempted to delay his trial. The trial justice explained:
Additionally, at an earlier stage of the proceedings, the trial justice found that "all of the attempts to provide [defendant] with prior counsel, to provide [him] with a bail hearing * * * have been thwarted by [defendant] alone." Furthermore, the trial justice said that "[t]his matter has been pending for over two years now * * * through nobody's efforts but [defendant's] own." Thus, there is ample evidence on the record to demonstrate that defendant's dilatory tactics were at least one factor that the trial justice looked to when denying defendant's request. See Leveto, 540 F.3d at 207 ("Certainly, evidence of a defendant's dilatory motive is properly considered
Furthermore, defendant made this request for counsel after the trial had already commenced and the jury had been empaneled and sworn. Thus, jeopardy had already attached. State v. Francis, 719 A.2d 858, 859 (R.I.1998) ("In a jury trial, jeopardy attaches when the jury is empaneled and sworn."). Indeed, the trial justice explicitly made that finding after defendant's request for counsel when he said: "Mr. Eddy, the jury has been sworn. That means jeopardy has now attached. We have to go forward with this trial at this time." Thus, defendant's request for the appointment of a fourth attorney was at an extremely late stage of the game and would have caused even further delay. See Leveto, 540 F.3d at 207 ("[P]articularly as the trial date draws nearer, the [trial] court can and should consider the practical concerns of managing its docket and the impact that a request may have on its general responsibilities for the prudent administration of justice.").
Moreover, defendant explicitly stated that his reason for requesting another attorney was for the "possibility of plea negotiations" with the state. Consequently, the appointment of a fourth attorney would have been only for a narrow and limited purpose.
Accordingly, "the rationales for the [defendant's] request and [the trial justice's] decision are clearly apparent on the record," and, therefore, "a formal inquiry or colloquy" was not necessary. Leveto, 540 F.3d at 208. Furthermore, given defendant's history of causing inordinate delay and his distrust of attorneys — and in the interests of judicial economy and the orderly administration of justice — we conclude that the trial justice was well within his discretion to deny defendant's eleventh-hour, post-waiver request for counsel.
Next, defendant argues that the trial justice was constitutionally required to appoint counsel — at least on a standby basis — to represent him after he absented himself from trial. Specifically, he argues that his lack of representation was "inimical to [his] rights to counsel, and due process of law" contained in the Sixth and Fourteenth Amendments to the United States Constitution, as well as article 1, section 10 of the Rhode Island Constitution.
As a first consideration, it is well settled that a defendant may waive his right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. 2525 (holding that a defendant may "relinquish[] * * * the right to counsel" if he does so "knowingly and intelligently"). Additionally, it is well established that a defendant may waive his right to be present at trial. Illinois v. Allen, 397 U.S. 337, 342-43, 90 S.Ct. 1057, 25 L.Ed.2d 353
After defendant requested to absent himself from trial, the trial justice cautiously engaged in an extensive colloquy with defendant. The trial justice instructed him of all the rights that he was giving up by not being present at trial, and defendant indicated that he was insisting that he absent himself "knowingly, willingly and voluntarily." Therefore, it is clear to us that defendant's waiver of his right to be present at trial was made of his own free will. Indeed, defendant does not contend that his decision to absent himself was not voluntary. The fact that defendant voluntarily waived his right to be present at trial is a critical factor in our analysis, because courts that have addressed the issue that is before us have distinguished between defendants' voluntary and involuntary absences.
In United States v. Mack, 362 F.3d 597, 600-03 (9th Cir.2004), the United States Court of Appeals for the Ninth Circuit addressed the issue of whether a defendant must be appointed representation after he is involuntarily removed from the courtroom. The defendant in that case dismissed three attorneys before electing to represent himself. Id. at 599. He refused to have standby counsel appointed unless he could choose a person who was not on the court's standard appointment list; consequently, "standby counsel was not appointed." Id. At trial, the defendant acted in an "obstreperous, contemptuous," and threatening manner, and, as a result, he "was taken from the courtroom, questioning of witnesses ceased, and [he] was precluded from presenting closing argument to the jury." Id. After he was convicted, the defendant appealed, and the Ninth Circuit reversed the conviction. Mack, 362 F.3d at 599, 603. The court held that a
The court then explained that "[a] defendant does not forfeit his right to representation at trial when he acts out. He merely forfeits his right to represent himself in the proceeding." Id. at 601. The court further observed that, "[i]n practical effect, he had been removed as his own counsel and nobody stepped in to fill the gap. While we do understand that the district court had to do something about [the defendant's] obnoxious behavior, effectively leaving him without representation was still far from appropriate." Id.
Likewise in Davis v. Grant, 532 F.3d 132, 139-40 (2d Cir.2008), cert denied, 555 U.S. 1176, 129 S.Ct. 1312, 173 L.Ed.2d 595 (2009), the United States Court of Appeals for the Second Circuit indicated that appointment of counsel might be required during a pro se defendant's involuntary absence from trial. In Davis, 532 F.3d at 137, the defendant was involuntarily removed from the courtroom after a series of outbursts, and his standby counsel or "legal advisor" was directed "to
On appeal from that dismissal, the Second Circuit — constrained by the limited scope of habeas review — affirmed, holding that "we cannot conclude that the state court decisions were unreasonable applications of [United States] Supreme Court precedent * * *." Davis, 532 F.3d at 140. Nevertheless, the court went on to observe that, had it been considering the issue de novo, it "might * * * conclude that the trial court was constitutionally required to appoint standby counsel for [the defendant] during his involuntary absence from the courtroom * * *." Id. at 139-40. Several other courts have also reached this conclusion. See, e.g., People v. Carroll, 140 Cal.App.3d 135, 189 Cal.Rptr. 327, 331 (1983); Jones v. State, 449 So.2d 253, 257 (Fla.1984); Saunders v. State, 721 S.W.2d 359, 363 (Tex.Ct.App.1986).
On the other hand, when a pro se defendant absents himself from his trial of his own volition, courts are almost uniform in holding that a trial judge is not constitutionally required to appoint counsel to represent the absent defendant. In Clark v. Perez, 510 F.3d 382 (2d Cir.), cert. denied, 555 U.S. 823, 129 S.Ct. 130, 172 L.Ed.2d 37 (2008), the defendant, elected to represent herself and, "in an act of political protest, [she] and her co-defendants absented themselves from the courtroom through nearly all of the pre-trial proceedings and the trial itself, listening to the proceedings through a speaker in their holding cells." Id. at 385. Although the defendant had legal advisors, "the defense table was empty throughout the prosecution's case and no objections were interposed by the defense." Id. at 387. More than two decades after she was convicted, the defendant successfully petitioned for habeas relief in federal district court. Id. at 388-89. "The district court held that the state trial court violated [the defendant's] Sixth Amendment rights * * * by allowing the trial to continue without revoking [the defendant's] pro se status (or appointing standby counsel) after [the defendant] refused to participate in or attend her trial." Id. at 396. The state appealed from the district court's decision to grant the defendant's habeas petition. Id. at 385.
In its de novo review, a unanimous panel of the Second Circuit reversed. Clark, 510 F.3d at 389-90, 397. The court began its analysis by noting that, because "[t]he right to self-representation may tend to run at cross-purposes to the right to effective assistance of counsel," the court would "exercise caution when called upon to establish per se rules that might overprotect either of these rights." Id. at 395. The court held that "there was no constitutional violation because [the defendant] knowingly and intelligently waived her right to counsel, unequivocally asserted her right to self-representation, made a conscious strategic choice to waive her right to be present in the courtroom as part of a de facto political protest defense, and was afforded the opportunity to return whenever she chose." Id. at 396. The court
Other courts that have addressed this issue have agreed. See, e.g., Torres, 140 F.3d at 401, 402, 403 (finding no error when the trial court failed to appoint an attorney to represent a pro se defendant who had voluntarily absented herself from the proceedings in order to conduct a political protest defense because "the district court properly respected [the defendant's] decision and her right to choose that course"); People v. Parento, 235 Cal.App.3d 1378, 1 Cal.Rptr.2d 444, 446 (1991) (holding that "a defendant who has exercised his right of self-representation by absenting himself from the proceedings, may not later claim error resulting from that exercise"); People v. Brante, 232 P.3d 204, 208-09 (Colo.App.2009) ("[T]he trial court did not violate the defendant's Sixth Amendment right to counsel by declining sua sponte to appoint advisory counsel to take over the defense in his [voluntary] absence."); State v. Worthy, 583 N.W.2d 270, 279 (Minn. 1998) (holding that the trial court did not err "when it failed to reappoint [the defendants'] dismissed attorneys after they voluntarily absented themselves from trial," because the defendants "were unquestionably afforded their rights to counsel and to be present, and then voluntarily, knowingly, and intelligently waived those rights"). Although neither this Court, nor the United States Supreme Court has addressed the issue of whether a voluntarily-absent, pro se defendant must have counsel appointed to represent him, we consider the above-mentioned cases to be persuasive.
Here, defendant voluntarily chose not to attend his trial, and, as such, we do not believe that the trial justice was required to appoint counsel to represent him. The voluntary nature of defendant's absence from trial is significant because it was defendant's free and informed choice that led to the result about which he now complains. As the United States Supreme Court has recognized, "whatever else may be said of those who wrote the Bill of Rights, surely there can be no doubt that they understood the inestimable worth of free choice." Faretta, 422 U.S. at 833-34, 95 S.Ct. 2525. Here, defendant was thoroughly advised of the rights that he was surrendering by opting not to be present in the courtroom during his trial, yet he chose to do so anyway. Thus, like the defendant in Clark, Mr. Eddy
The defendant cites Thomas, 581 F.3d at 126-27, in which the Third Circuit indicated in dicta that a trial judge might be constitutionally required to appoint counsel to represent a voluntarily-absent pro se defendant. However, we do not find the dicta in that case to be convincing. In Thomas, as in the matter that is before us, a pro se defendant voluntarily absented himself from his trial. Id. at 121-22. The defendant was convicted, and his conviction was affirmed by the Delaware Supreme Court. Id. at 122. After the defendant unsuccessfully sought habeas relief in the United States District Court for the District of Delaware, he appealed the denial of his habeas petition to the Third Circuit. Id. at 123. Operating within the bounds of its limited scope of review in habeas cases, the Third Circuit affirmed the conviction, concluding that the Delaware Supreme Court's decision was not "contrary to, or an unreasonable application of, clearly established federal law as determined by the [United States] Supreme Court." Id. at 127. Nevertheless, in dicta, the court expressed its concern with what it believed was "a complete breakdown of the adversarial process" that had occurred at the defendant's trial. Id. at 126. The court signaled that "[i]f this appeal had come before us on a direct appeal from a federal court presented with a defendant who waived his right to counsel and then absented himself from the courtroom, we might hold differently."
We are not moved by the language in Thomas for several reasons. First, the Third Circuit affirmed Thomas's conviction based on the narrow standard of review in habeas petition cases, and, therefore, its hypothetical de novo review of the constitutional issue before us constituted mere dicta, because "it had no bearing on the disposition of the case." McAninch v. State Department of Labor and Training, 64 A.3d 84, 90 (R.I.2013); see also Black's Law Dictionary 1177 (9th ed.2009) (defining "obiter dictum" as "[a] judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential"). Second, Thomas is a bit of an outlier; indeed, it is the only case cited by defendant that suggests that either Constitution might require the appointment of counsel for a voluntarily-absent pro se defendant. We know of no other court that has addressed the issue and has employed a similar rationale. See, e.g., Clark, 510 F.3d at 396-97; Torres, 140 F.3d at 401-03; Parento, 1 Cal.Rptr.2d at 446; Brante, 232 P.3d at 208-09; Worthy, 583 N.W.2d at 279.
Finally, we agree with the logic of the courts that have confronted the issue, which have held that it is only when a defendant is involuntarily removed from the courtroom that the appointment of an attorney is required; when a defendant voluntarily does so, the appointment of counsel is not constitutionally required. Although the non-adversarial nature of a trial may be the same whether the pro se
Undeniably, a pro se defendant may choose to sit silently at the defense table during trial, give no opening statement or closing argument, call and cross-examine no witnesses, and make no objections. Parento, 1 Cal.Rptr.2d at 446. We see little difference between the defendant who quietly remains in the courtroom and the defendant who instead absents himself from the proceedings. As the California First District Court of Appeals has said, "[t]he issue is not physical presence, but choice." Id.
Finally, defendant contends that his purported right to have counsel appointed in his absence is derived, at least in part, from the Due Process Clause of the Fourteenth Amendment. However, the trial justice provided defendant with three competent and experienced attorneys, all of whom he found to be wanting and whom he ultimately discharged. The defendant delayed the proceedings an inordinate
For the foregoing reasons, we hold that neither the United States Constitution, nor article 1, section 10 of the Rhode Island Constitution mandates that counsel be appointed when a pro se defendant voluntarily absents himself from his trial.
The defendant also argues that he "should not have been permitted to waive his presence at trial because he was charged with the Rhode Island equivalent of a capital crime." Specifically, he contends that Rule 43 of the Superior Court Rules of Criminal Procedure precluded the trial justice from allowing defendant to voluntarily absent himself from trial. Rule 43 provides that "[i]n prosecutions for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in the defendant's presence shall not prevent continuing the trial to and including the return of the verdict." (Emphasis added.) The phrase "not punishable by death" is clear and unambiguous, and it is abundantly obvious that the offenses with which defendant was charged were not punishable by death. See § 11-37-3 ("Penalty for first degree sexual assault. — Every person who shall commit sexual assault in the first degree shall be imprisoned for a period not less than ten (10) years and may be imprisoned for life."); § 11-37-8.2, as amended by P.L. 2006, ch. 207, § 3 ("Penalty for first degree child molestation sexual assault. — Every person who shall commit first degree child molestation sexual assault shall be imprisoned for a period of not less than twenty-five (25) years and may be imprisoned for life.").
For the reasons set forth in this opinion, we affirm the judgment of conviction in this case. The record shall be returned to the Superior Court.
Finally, defendant contends that the cumulative effect of the errors that he alleges requires that his judgment of conviction be vacated. Because we hold that each of defendant's arguments lacks merit, there are no errors to cumulate.
