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State v. Souto

Supreme Court of Rhode Island

June 13, 2019

State
v.
Mario Souto.

          Providence County Superior Court, P1/12-3130A, Netti C. Vogel Associate Justice.

          For State: Virginia M. McGinn Department of Attorney General.

          For Defendant: Angela M. Yingling Office of the Public Defender.

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

          OPINION

          Paul A. Suttell Chief Justice.

         The defendant, Mario Souto, appeals from a judgment of conviction on three counts-assault of a police officer, resisting arrest, and disorderly conduct-following a two-day jury trial in Providence County Superior Court. The defendant represented himself at trial after the trial justice determined that the defendant had waived his constitutional right to counsel. On appeal, the defendant contends that he did not voluntarily, knowingly, or intelligently waive his right to counsel. For the reasons set forth herein, we affirm the judgment of conviction.

         I

         Facts and Travel

         A

         Pretrial

         In November 2012, defendant was charged with assault of a police officer (count 1), simple assault (count 2), resisting arrest (count 3), and disorderly conduct (count 4) following an incident with Pawtucket police officers on May 28, 2012. The details of that incident are not necessary for the resolution of this appeal.

         Following his arrest, defendant reached out to the Public Defender's office for legal representation, but was deemed ineligible for services. By January 2013, defendant had engaged Attorney Thomas Connors (Connors) to represent him, and the case progressed toward trial for over a year. On March 13, 2014, however, Connors moved to withdraw, citing a breakdown in the attorney-client relationship and defendant's desire to hire a different attorney. After confirming that defendant wanted to dismiss Connors from his representation, and that defendant had the funds to hire a new attorney, the hearing justice granted the motion to withdraw.[1] At that hearing, the hearing justice repeatedly encouraged defendant to retain an attorney, but also informed defendant that he had a right to represent himself at trial.[2]

         The defendant appeared before the same hearing justice five more times over the course of the next two months for determination of an attorney. At each hearing, defendant represented to the hearing justice that he had attempted to communicate with attorneys to establish representation, but had not yet retained counsel. The defendant also stated at those hearings that he was financially able to retain counsel, but that he was uncomfortable with paying a large sum of money upfront, given his experience with his former attorneys. The defendant further made clear that he did not want to proceed to trial pro se. During a hearing on May 15, 2014, the hearing justice set a status conference for September 2014, and instructed the parties to be ready for trial on or after October 1, 2014.

         The defendant still had not retained an attorney by the status conference on September 15, 2014. The defendant indicated that he had faced some unforeseen financial issues in the intervening months. The defendant also reiterated his discomfort with the retainer system that would require him to pay an attorney upfront.[3] The hearing justice declined to continue the case further and reiterated that it would be tried on or after October 1, 2014.

         On February 4, 2015, the case came before a second justice of the Superior Court for trial. At that time, defendant had not retained counsel and further stated that he could no longer afford to hire an attorney. The second hearing justice continued the case for one week to give defendant time to make an appointment with the Public Defender's office to determine if he would be eligible for its services. In the week that followed, defendant met with a representative from the Public Defender's office, but, again, he was deemed ineligible for services. The defendant appeared before the second hearing justice for determination of attorney three more times, and he was granted three more continuances on February 11, February 13, and February 20, until the second hearing justice scheduled a March 11, 2015 trial calendar call with a trial date certain on April 1, 2015.[4]

         On April 1, 2015, a private attorney stood with defendant after discussing possible representation, and the second hearing justice, again, continued the matter, this time so the attorney and defendant could meet to determine whether the attorney would be retained. The defendant did not retain that attorney, however, and instead appeared before the first hearing justice again on May 4, 2015, without representation. The case was once again scheduled for trial.

         B

         Trial

         On May 18, 2015, more than one year after Connors' motion to withdraw was granted, thecase was set for a jury trial before a third justice of the Superior Court. The defendant told the trial justice that he remained unrepresented and was "not going to go forward without counsel." The trial justice replied that the trial would be "going forward because those are my decisions." The trial justice proceeded to provide a summary of the travel of the case, particularly noting defendant's pro se appearances before the two hearing justices. Following her summary of the travel of the case, the trial justice stated:

"The [c]ourt rules that this case will go forward today as scheduled. The Defendant's right to select counsel and engage the services of counsel is certainly an important right, but it is not absolute, and this case must go forward. The State has been ready on numerous occasions. The [c]ourt finds that the Defendant appears to be foot dragging, and under all of these circumstances, the [c]ourt finds that there is no just reason for delay and we must go forward with this case and the matter is reached. [The defendant's] exception is noted.
" * * * I will not be appointing standby counsel because he is not eligible for the [c]ourt to appoint standby counsel at anyone's expense but the Defendant's. And of course the Public Defender has indicated at least on two occasions he's not eligible."

         During jury selection, but outside of the presence of the jurors, defendant reiterated his concern about proceeding to trial without counsel. He stated: "I don't want to go forward with the case. You're forcing me to go forward with the case. That's the way I feel inside my heart. I don't feel like I can represent myself. You are forcing me to do something I don't want to do." The trial justice proceeded with selection of the jury, and, after the jurors were duly sworn, the state gave its opening statement. The trial justice offered defendant the opportunity to give an opening statement, but defendant instead responded: "I take the Fifth. * * * I don't want to go forward because I don't have an attorney. You guys are forcing me." The trial justice struck defendant's comments from the record, informed the jury that "[t]he [c]ourt has determined that this case will go forward with this gentleman being given the opportunity to represent himself[, ]" and instructed the state to call its first witness.

         The state presented three witnesses: former Pawtucket police officer Michael Lajoie, Pawtucket police officer John Donley, and Pawtucket police officer Mark Ramos.

         Officer Lajoie testified to an encounter with defendant on May 28, 2012, which resulted in a physical altercation between the two during which Officer Lajoie suffered significant injuries. At some point, Officer Lajoie noticed that his "right foot was turned around 180 degrees the wrong direction." By that time, other officers had arrived for backup, and those officers took defendant into custody while Officer Lajoie was transported to the hospital.

         Following Officer Lajoie's testimony, the trial justice asked defendant if he had any questions for the witness, to which defendant replied: "No, because I want to talk to the jurors."

         Officer Donley testified next. According to Officer Donley, he and Officer Ramos responded to a call for backup to a store parking lot, and as the two arrived, he observed Officer Lajoie and defendant yelling at each other in a "heated verbal argument." Officer Donley testified that he then "observed [defendant] push Officer Lajoie to the ground." When the officers caught up to defendant and Officer Lajoie, they attempted to take defendant into custody, but he resisted. Officer Donley testified that he used pepper spray and an "open hand slap to the side of his face * * * [a]s a distraction technique" to "successfully handcuff [defendant] without further incident."

         Officer Donley testified that he observed Officer Lajoie's foot to be "dangling abnormally[, ]" and called a rescue. He also stated that he and Officer Ramos transported defendant to the Pawtucket police station and that defendant was spitting excessively while in the vehicle. Officer Donley testified that defendant did not follow commands once at the police station, so they needed to "take him back down to the ground and re-handcuff him" prior to placing him in a cell.

         Following that testimony, defendant attempted to cross-examine Officer Donley. However, defendant had difficulty forming questions for the witness and instead began testifying.[5] After several unsuccessful attempts at cross-examination, defendant expressed his confusion about the process to the trial justice, and then stated:

"I don't want to go forward because I'm not a lawyer or anything. You just handed me the form this morning, and now I went home and that was it. Nobody -- I don't have none of my witnesses. I don't have anything. You guys threw everything -- you know, put yourself in my shoes."

         The trial justice instructed the jury to disregard defendant's statements and asked the state to call its next witness.

         The state's final witness at trial was Officer Ramos. He gave a similar account to Officer Donley's testimony.

         The defendant also attempted to cross-examine Officer Ramos, but was again unsuccessful. The defendant told the trial justice, in the presence of the jury, that he felt unqualified to represent himself, and that the trial justice "forced [him] to go forward." After the state rested, the trial justice gave defendant the opportunity to testify in narrative form, but defendant declined. The defendant also refused to give a closing statement, saying, "at this point, I don't know what is going on." After the prosecutor gave a closing statement, the trial justice charged the jury with instructions and excused them for the day.

         The following morning, Attorney Thomas DeSimone (DeSimone) entered his appearance for defendant on the record, stating that defendant had retained him around nine o'clock the previous night. DeSimone asked that the "case go back to the beginning so that [defendant] can actually have a lawyer represent him." The trial justice denied that request.

         The jury found defendant guilty as to all pending charges: assault of a police officer (count 1), resisting arrest (count 3), and disorderly conduct (count 4).[6]

         C

         Posttrial

         On May 28, 2015, defendant, who remained represented by counsel, filed a motion for a new trial. The defendant averred that he had been denied his constitutional rights at trial because he did not have representation. After hearing argument, the trial justice rendered a decision from the bench denying defendant's motion. The trial justice concluded that, prior to beginning trial, she had "found that the Defendant willfully and intentionally entered into a strategy to manipulate the system and delay trial indefinitely. And in doing so, he knew he ran the risk of a trial without a lawyer. His strategy was knowing and voluntary and intelligent * * *."[7] Additionally, the trial justice noted that, "[t]he fact that Defendant hired Mr. DeSimone so expeditiously on the night of May 18th demonstrates further, speaks volumes, as to the extent to which Defendant misled the [c]ourt about his inability to engage counsel." The trial justice further determined that the jury followed the instructions she had given, and that, if she had been sitting without a jury, she would have come to the same conclusion based on the evidence presented at trial.

         The defendant was sentenced on count 1 to three years' imprisonment, with fifteen months to serve and the remainder suspended, with probation. As to count 3, defendant was sentenced to one year suspended, with probation, to run consecutively to the sentence for count 1. As to count 4, defendant was sentenced to six months suspended, with probation, to ...


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