Jeffrey Lance Hill v. State of Mississippi ( 2012 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2012-KA-00724-SCT
JEFFREY LANCE HILL a/k/a JEFFREY L. HILL
a/k/a JEFF HILL a/k/a JEFFREY HILL a/k/a
JEFFREY SCOTT HILL a/k/a JEFFREY L. HILL
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 05/03/2012
TRIAL JUDGE: HON. LEE SORRELS COLEMAN
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: MOLLIE MARIE McMILLIN
GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY: FORREST ALLGOOD
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED - 02/06/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE WALLER, C.J., LAMAR AND PIERCE, JJ.
PIERCE, JUSTICE, FOR THE COURT:
¶1. Jeffrey Lance Hill was indicted by an Oktibbeha County grand jury of possession of
a firearm on educational property (the campus of Mississippi State University) in violation
of Mississippi Code Section 97-37-17(2) (Rev. 2006). In two jury trials, Hill represented
himself with the assistance and advice of court-appointed counsel. Hill’s first trial resulted
in a hung jury. Hill was found guilty of the indicted offense in his second trial and was
sentenced to three years in the custody of the Mississippi Department of Corrections
(MDOC) and ordered to pay a $1,200 fine. The trial court denied Hill’s post-trial motion for
a new trial or, in the alternative, judgment notwithstanding the verdict (JNOV). This appeal
followed.
¶2. Hill challenges his conviction based on the following two issues: (I) Whether Hill’s
right to counsel and a fair trial under the Sixth Amendment was violated when the trial court
refused to allow Hill’s court-appointed counsel, Stephanie Mallette, to withdraw; and (II)
whether the trial court erred when it failed to grant Hill’s motion for a new trial on the
ground that the verdict was against the overwhelming weight of the evidence.
¶3. Finding error as to the first issue, we reverse Hill’s conviction and remand the case
to the trial court for a new trial. We decline to address the second issue concerning whether
the verdict was against the overwhelming weight of the evidence.
FACTS
¶4. In September 2010, the Mississippi State University Police Department received a
report that Hill possibly was in possession of a firearm at Aiken Village Apartments on the
campus of Mississippi State University. The department sent Detective Steve Westbrook and
two other officers to investigate the report. When the officers arrived at Hill’s apartment,
Hill’s roommate allowed them to enter. Once the officers were inside, Hill entered the room
and spoke with the officers. Out of concern for officer safety, Westbrook asked Hill if there
were any weapons in his bedroom, and Hill responded that he had a rifle in his closet.
Westbrook and Hill retrieved the weapon together. Hill was then arrested for having a
2
firearm on campus property. Hill told the officers that he had no other firearms, but that he
had had ammunition in his vehicle.
¶5. Hill’s first trial in January 2012 resulted in a hung jury. Hill’s second trial in May
2012 resulted in a conviction of the charged offense. Hill chose to represent himself at both
trials with the assistance of court-appointed advisory counsel, Stephanie Mallette. The result
of the second trial is the only matter before us.
¶6. There was no dispute that Hill was in possession of a World War II Era Russian
Mosin Nagant rifle, in working condition, and 440 rounds of ammunition, while living at the
Aiken Village Apartments. Hill’s defense at trial centered completely on his belief that
Aiken Village Apartments were not located on the campus of Mississippi State University
(MSU).
¶7. During its case-in-chief, the State displayed a campus map and established that Aiken
Village Apartments were represented on the map. The State introduced Vicky Gallegos, the
Housing Assignment Specialist for MSU Housing and Residence Life, who explained that
any student obtaining housing through the university must go online, access his personal
student account with his student ID and password, read the housing contract and terms and
conditions, then select that the terms have been read and agreed to. Further, the student is
instructed to read the “Rules and Regulations” and “Prohibited Items” sections of the web
page, which includes the instruction that no firearms, ammunition, and other forms of
weapons are allowed on any part of the campus, including student housing. The State
admitted evidence demonstrating how these rules were displayed to the student. Gallegos
3
confirmed that Hill could not have applied for housing without reading and acknowledging
these rules and that the university received electronic confirmation when Hill acknowledged
the terms and regulations. She also provided that the documents explain the complete
applicability of the rules to overflow housing.
¶8. On cross-examination, Hill sought to show that he was never given a housing contract
that specifically stated that Aiken Village Apartments were part of the overflow
accommodations or that the apartments were owned by the university. Testimony revealed
that Hill was asked by the university and consented to being moved to an overflow
accommodation. Exhibits were entered into evidence indicating that Hill had signed his
inventory form for Aiken Village, which displayed the university’s name on the form. Also
revealed was the fact that Hill’s housing costs were paid from Hill’s student account with the
university. Photos also were introduced showing the apartment’s sign including the term
“University Housing.”
¶9. Hill testified at trial to his belief that he did not live on university property by the fact
that the apartments had a Starkville, Mississippi, mailing address, unlike residence halls,
which have a Mississippi State, Mississippi, address, with different zip codes. Among other
reasons, Hill claimed the apartments did not have the strict parking signs seen on campus,
yet he had received a parking ticket for not having a parking decal. He also stated that Aiken
Village appears to be outside of campus because he passed the ten-foot wall displaying
“Mississippi State University” en route to the apartments, which gave him the impression
that he was exiting the campus. Further, he explained that he knew firearms were prohibited
4
on campus, so he had never before brought the rifle from his home in Arkansas until he
moved into Aiken Village because of his belief that he was not on university property. Hill
stated that he had obtained the rifle for hunting, but testimony from Detective Westbrook
confirmed that Hill did not have a hunting license.
¶10. Also during the trial, it became known for the first time that a confidential informant
originally had alerted the police about Hill’s possible possession of the firearm. Once the
existence of a confidential informant became known, Mallette argued to the trial court the
validity of keeping the informant’s identity and statement confidential. Mallette also raised
the issue of a discovery violation, since the existence of the informant never before had been
mentioned. The State responded that it did not have to reveal the identity of the informant,
because Detective Westbrook was the eyewitness to the crime. Prior to the incident, the
informant merely had reported to authorities that Hill was possibly in possession of a firearm.
After much debate, the trial court ultimately ruled that no discovery violation had occurred
and ordered that the police report be provided to the defense after any information regarding
the identity of the informant had been redacted. The trial court ordered that a nonredacted
copy would be preserved for the record under seal. The State, however, failed to properly
redact a portion of the report that was given to Mallette, thereby revealing to Mallette that
the informant was Hill’s roommate.
¶11. Afterward, Mallette moved the trial court to allow her to withdraw from representing
Hill. The trial court heard Mallette’s motion in chambers, on the record. Mallette told the
trial court that she could not fulfill her ethical obligation to Hill and as well as her ethical
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obligation to the trial court not to reveal the informant’s identity as Hill’s roommate. She
said she would have advised Hill to call his roommate as a witness, had she been given the
report before the trial began. Mallette also explained that Hill previously had consulted with
her about when to rest his case, and she was concerned that if he asked her again she would
have to advise him to move for a mistrial in order to call the roommate as a witness.
¶12. At that point, the trial court considered appointing new advisory counsel, and called
in another public defender, Mark Williamson, to represent Hill through the end of trial. The
trial court informed Williamson of the conflict that had arisen in Mallette’s representation
of Hill, and informed him of what his role would be as Hill’s advisory counsel. Williamson
informed the trial court that his first advice for Hill, as his attorney, would be to ask for a
mistrial, because he could not act as Hill’s advisory counsel knowing nothing about the case.
The court then instructed Mallette that she would remain as advisory counsel and that she
should inform Hill that, because of a conflict, she could not advise him on whether to rest his
case, if he asked her that specific question.
¶13. The State proceeded to call one rebuttal witness, and after cross-examination by Hill,
both sides rested. Thereafter, the jury found Hill guilty of possessing a firearm on
educational property.
ANALYSIS
I. Whether Hill’s right to counsel and a fair trial under the Sixth
Amendment was violated when the trial court refused to allow
Hill’s court-appointed advisory counsel, Stephanie Mallette, to
withdraw.
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¶14. Hill argues that the trial court’s actions materially interfered with his defense
counsel’s ability to provide loyal assistance to him. Hill further contends that the trial court’s
decision not to relieve Mallette from her duty to assist Hill was based in large part on the trial
court’s disagreement with the advice that Williamson proposed to give to Hill–to ask for a
mistrial. Thus, the trial court deprived him of his right to a fair trial. We agree.
¶15. The trial court has complete discretion when considering a motion to withdraw as
counsel. Rubenstein v. State, 941 So. 2d 735, 783 (Miss. 2006) (citing Taylor v. State, 435
So. 2d 701, 703 (Miss. 1983)). See also Myers v. State, 254 So. 2d 891, 898 (Miss. 1971).
Limitations must be enforced when considering appointing new counsel to circumvent any
maneuvers that interfere with the “orderly procedure in the courts or . . . the fair
administration of justice.” Rubenstein, 941 So. 2d at 783 (citing Taylor, 435 So. 2d at 703
(quoting United States v. Bentvena, 319 F.2d 916, 936 (2d Cir. 1963))).
¶16. On appeal, Hill contends that the denial of Mallette’s motion to withdraw deprived
him of his Sixth Amendment right to counsel, thus, an unfair trial resulted.1 We fully agree
with the concurring opinion and its conclusion that Hill’s constitutional rights to assistance
of counsel and self-representation were originally jeopardized originally when Mallette was
granted her request to withdraw as counsel because of a conflict of interest but
1
It is unnecessary to address the dissent’s concern as to whether a Sixth Amendment
right to advisory counsel exists, as that issue is not before us. However, we stress that, even
though the trial court appoints counsel in an advisory capacity, such counsel is still obligated
to provide the defendant with adequate assistance in accordance with the defendant’s
requests.
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simultaneously was assigned to remain in an advisory-counsel capacity. Additionally, we
find error in the trial court’s later ruling requiring Mallette to remain as Hill’s advisory
counsel when her obligations to the trial court and her obligations to Hill were in conflict.
¶17. The record shows, as mentioned, that there was no dispute at trial that Hill was in
possession of a firearm while on educational property in violation of Section 97-37-17(2).
Hill’s defense throughout trial was that he did not know he was on educational property.
During Hill’s cross-examination of Westbrook, while bringing out that defense, information
came to light that Westbrook and the other officers had come to Hill’s apartment the day Hill
was arrested based on a report from an informant. When Hill asked Westbrook the
informant’s name, the State objected on the ground that the informant’s name was
confidential. Lengthy debate between Mallette and the State ensued with regard to
Mississippi’s discovery requirements in criminal proceedings. Ultimately, the trial court
found no discovery violation.
¶18. We agree with the trial court’s ruling that revealing the identity of the confidential
informant to Hill was not required. Read v. State, 430 So. 2d 832 (Miss. 1983) (court did
not require disclosure of confidential informant who did not participate in the crime in any
way but had seen the drugs at the residence and had reported to the police); see also Corry
v. State, 710 So. 2d 853, 858-59 (Miss. 1998) (finding no manifest error in trial court’s
decision to deny defendant’s motion to require disclosure of informant’s identity, because
no evidence showed that the informant had participated in the crime or was an eyewitness
to the crime); Esparaza v. State, 595 So. 2d 418, 424 (Miss. 1992) (informant who did not
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witness the offense charged and did not serve as a witness in the proceeding, but merely
provided data that established probable cause to support a search warrant, constituted too
tenuous a link to justify, under Mississippi law, disclosing the informant’s identity); Arnett
v. State, 532 So. 2d 1003, 1008 (Miss. 1988) (“There is no evidence in the record that the
informant was a participant or an eyewitness to the crime, and consequently disclosure of the
witness was within the sound discretion of the trial judge. . . .”).
¶19. As mentioned before, Mallette felt conflicted because she inadvertently had learned
the informant was Hill’s roommate. Since the trial court ultimately ruled that the identity of
the confidential informant could not be revealed to Hill, Mallette felt her obligations to the
trial court and her obligations to Hill were now in conflict because the trial court was
restricting her from instructing Hill to move for a mistrial, rather than resting his case, in
order to call his roommate as a witness.
¶20. By instructing Mallette to refrain from counseling Hill on whether to rest his case, the
trial court effectively left Hill without any type of counsel, advisory or otherwise. In
Howard v. State, this Court concluded that advisory counsel’s role in aiding the defense
included “among other things, the necessity of preparing as adequately as possible to assume
a more active role in the trial, should the need arise.” Howard v. State, 701 So. 2d 274, 285
(Miss. 1997). The defendant in Howard communicated to both standby counselors that he
wanted them to present the closing arguments. Id. The trial judge ruled that standby counsel
should prepare jury instructions, but that it was too late in the trial for them to begin arguing
the case. Id. This Court pointed to the fact that the trial court had instructed Howard to use
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and rely upon the appointed standby counselors, even though he was representing himself,
only to deny him the assistance the trial court had so encouraged. Id. This Court cited
McKaskle v. Wiggins, in which the United States Supreme Court provided the following
guidance:
Once the pro se defendant invites or agrees to participation by counsel, any
subsequent appearances by counsel must be presumed to be within the
defendant’s acquiescence, at least until the point that the defendant expressly
and unambiguously renews his request that counsel be silenced.
Howard, 701 So. 2d at 287 (citing McKaskle, 465 U.S. 168, 183, 104 S. Ct. 944, 953-54, 79
L. Ed. 2d 122 (1984)).
¶21. Here, the trial court repeatedly attempted to convince Hill to seek assistance from
Mallette, then later instructed Mallette to refrain from counseling Hill on whether to rest his
case, because she had stated that she would counsel Hill to move for a mistrial in order to
secure Hill’s roommate as a witness.
¶22. We must be clear that the roles and responsibilities of “full-fledged counsel” and
advisory counsel are different and are not one and the same with regard to the protections of
the Sixth Amendment right to counsel. U.S. v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991).
¶23. However, a problem arises when a defendant initiates the assistance of counsel and
subsequently is denied such assistance. McKaskle, 465 U.S. at 183. As previously
mentioned, Hill communicated to Mallette that he wanted her assistance on whether to rest
his case. Thus, it is clear from the facts of this case that Hill had requested her full assistance
on the matter. Id. The Mississippi Constitution states in part that “ . . . the accused shall
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have a right to be heard by himself or counsel, or both . . . .” Metcalf v. State, 629 So. 2d
558, 562 (Miss. 1993) (citing Miss. Const. art 3, § 26 (1890)). We must recognize the
importance of reaching a balance between two imperative rights: the right of self-
representation and the constitutional right of representation by counsel. Metcalf v. State, 629
So. 2d at 562.
¶24. We find that the trial court erred by assigning Mallette as Hill’s advisory counsel
while, at the same time, allowing her to withdraw as his counsel because of a conflict of
interest. The trial court again erred when Mallette was required to remain as advisory
counsel once a conflict arose between her duty to the court and her duty to Hill.
CONCLUSION
¶25. This Court reverses Hill’s conviction for possession of a firearm while on educational
property, and remands the case to the Oktibbeha County Circuit Court for a new trial
consistent with this opinion.
¶26. REVERSED AND REMANDED.
WALLER, C.J., DICKINSON, P.J., LAMAR, CHANDLER AND KING, JJ.,
CONCUR. KITCHENS, J., CONCURS WITH SEPARATE WRITTEN OPINION
JOINED BY WALLER, C.J., DICKINSON, P.J., CHANDLER AND KING, JJ.,
COLEMAN, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
RANDOLPH, P.J.
KITCHENS, JUSTICE, CONCURRING:
¶27. Our constitutional guarantees that the accused have assistance of counsel require
reversal of Hill’s conviction. Thus, I concur with the disposition. U.S. Const. amend. VI (“In
all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of
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counsel for his defense.”); Miss. Const. art. 3, § 26 (“In all criminal prosecutions the accused
shall have a right to be heard by himself or counsel, or both . . . .”). The Court correctly finds
that a conflict of interest arose during trial and that Hill’s court-appointed counsel, Stephanie
Mallette, should not have been appointed as standby counsel. However, the trial court
already had determined, well before the second trial began, that Mallette had a conflict of
interest justifying her removal from the case. Still, despite recognizing her divided loyalties,
the trial court required her to continue as Hill’s advisor. Whether her role was “full-fledged”
counsel, standby counsel, or somewhere in between is immaterial, for any degree of legal
advice requires absolute loyalty to the client. See Kiker v. State, 55 So. 3d 1060, 1065 (Miss.
2011) (“Under our system of jurisprudence, if a lawyer is not one hundred percent loyal to
his client, he flunks.”) (quoting Littlejohn v. State, 593 So. 2d 20, 22 (Miss. 1992)). Once
the Court determined that there was an actual conflict of interest, Hill was entitled to the
appointment of substitute counsel. Id. at 1066 (citing Littlejohn, 593 So. 2d at 25). Because
Hill was not given the option of court-appointed, conflict-free counsel, I concur with the
Court’s reversal of his conviction.
¶28. Generally, a trial judge enjoys discretion when considering an attorney’s motion to
withdraw. See e.g., Rubenstein v. State, 941 So. 2d 735, 783 (Miss. 2006). Likewise, this
Court applies an abuse of discretion standard of review to denials of defendants’ requests to
discharge counsel. Rinehart v. State, 883 So. 2d 573, 576 (Miss. 2004). But this discretion
is not absolute, for our courts always must apply the correct legal standards. See e.g.,
Freeman v. State, 121 So. 3d 888, 894-95 (Miss. 2013) (in contrast to findings of fact,
12
questions of law are reviewed de novo) (citing City of Laurel v. Williams, 21 So. 3d 1170,
1174 (Miss. 2009)). Although Court approval is required before appointed counsel may be
relieved of his or her representation, a conflict of interest, once recognized by a court,
requires the trial court to remove the conflicted attorney. Hayden v. State, 972 So. 2d 525,
536 (Miss. 2007). The lower court did not apply this legal standard, and this error is clearly
reflected in the record before us.
¶29. Hill’s first court-appointed attorney was allowed to withdraw after Hill had filed a bar
complaint and accused that attorney of attempting to “sabotage” his case.2 Mallette was
appointed in that lawyer’s stead, and Hill continued to file various pro se motions and letters,
as he had from the beginning of the case. The first trial was set for January 31, 2012, and
on January 9, 2012, he filed several documents with the circuit court, including a letter
indicating that he was “firing” his attorney. In the letter, Hill made numerous accusations
against Mallette, alleging, among other things, that she had filed motions on his behalf
without his consent, that she had refused to interview his witnesses,3 and that she had
2
Hill’s first lawyer was the same attorney who was asked to serve as Mallette’s
replacement during the second trial. Thus, he was not eligible to serve in Mallette’s place.
3
In fact, the trial court previously had determined that “the Defendant wanted two
witnesses called at his trial with whom [Mallette] had a conflict of interest precluding her
from contacting the witnesses and interviewing them.” (Emphasis added.) The order then
appointed another attorney, Marty Haug,
with the limited responsibility to interview [the two witnesses] and report to
Ms. Mallette the substance of their testimony should either be called as
witness. Should either be called as a witness [Haug] will be responsible for
examining the witness(es). Ms. Mallette is ordered to turn over a copy of all
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allegedly accused him of murdering two men. As with his request that his first attorney be
discharged, Hill did not state that he wished to proceed pro se. Instead Hill wrote, “I will not
be seeking another public defender. I choose to seek my own counsel.”
¶30. On January 25, 2012, Mallette requested that she be allowed to withdraw and that
Hill be permitted to obtain his own counsel. Her motion cited a personal conflict of interest
based on the letter’s accusations and Hill’s having filed a complaint against her with the
Mississippi Bar. The trial court granted Mallette’s motion in an “Order Allowing
Withdrawal.” The order noted that there had been a hearing on the matter and announced
that Mallette “is withdrawn from her representation of [Hill].” Yet, the very next sentence
read, “Stephanie Mallette is hereby appointed to represent Jeffrey Lance Hill as standby
counsel and assist him with legal and procedural matters when he requests as necessary
pursuant to Rule 8.05 of the U.R.C.C.C.P.” 4
¶31. The order ostensibly granting Mallette’s motion to withdraw and then appointing her
as standby counsel was entered on January 31, 2012, the day of Hill’s first trial, and the
discovery materials provided by the State of Mississippi as well as to assist
[Haug] with the substance of the potential witnesses.
Thus, despite Mallette’s conflict, the order appeared to require Mallette’s direct participation
in the matter as she was required to “assist [Haug] with the substance of the potential
witnesses.” The record does not reveal the nature of Mallette’s conflict; but the order raises
questions as to whether her inability to interview certain witnesses would have disqualified
her from further representation.
4
The trial judge had crossed out the phrase “when he requests.” He replaced that
phrase with “as necessary,” and initialed the alteration.
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sequence of events that day is unclear. There are no transcripts in the appellate record related
to these first proceedings, including the hearing on Mallette’s motion to withdraw. That
same day, the trial court entered an order declaring a mistrial, noting that “the Defendant
appeared in open Court representing himself to answer the indictment.” The order did not
mention Mallette, and there is no reference that Hill had been given standby counsel. In
other words, it is impossible to determine the extent of Mallette’s participation in the first
trial, if any. The record does not reflect a request from Hill to exercise his right to self-
representation in his first trial, and there is no documentation that Hill “knowingly and
voluntarily” waived his right to counsel.
¶32. Although Hill is appealing the conviction from his second trial, the proceedings
related to the first trial certainly bear upon the question of whether he “validly waived his
right to counsel.” The second trial began with the trial court’s cautioning Hill about the
pitfalls of self-representation and reminding Hill that he could reconsider his prior decision(s)
to proceed pro se. Hill also was given the warnings set forth in Rule 8.05 of the Uniform
Circuit and County Court Rules and outlined in Faretta v. California, 422 U.S. 806, 835, 95
S. Ct. 2525, 45 L. Ed. 2d 562 (1975),5 and Hill responded affirmatively when the trial judge
asked him whether he still wished to exercise his right to self-representation.
5
“When an accused manages his own defense, he relinquishes, as a purely factual
matter, many of the traditional benefits associated with the right to counsel. For this reason,
in order to represent himself, the accused must ‘knowingly and intelligently’ forgo those
relinquished benefits.” Id.
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¶33. Nevertheless, the trial court’s “Order of Withdrawal,” appointing Mallette as standby
counsel despite a conflict of interest, still was in effect at the second trial. Even if Hill could
have waived the conflict, nothing in the record indicates that the conflict was explained to
Hill or what impact it may have had on Mallette’s ability to provide appropriate
representation. Rule 8.05 provides general guidelines, but also requires the court to inform
the defendant of “other matters as the court deems appropriate.” A conflict of interest falls
in this category. This Court has adopted the generally accepted rule that “[i]n order for a
defendant effectively to waive his right to conflict-free counsel, the trial judge should
affirmatively participate in the waiver decision by eliciting a statement in narrative form from
the defendant . . . indicating that he fully understands the nature of the situation and has
knowingly and intelligently made the decision to proceed with the challenged counsel.”
Littlejohn, 593 So. 2d at 25 (quoting United States v. Alvarez, 580 F.2d 1251, 1260 (5th Cir.
1978)).
¶34. The judge assured Hill that he had a constitutional right to defer to standby counsel
at any point and to allow Mallette to take on “whatever role he desire[d].” During the trial,
Hill clearly relied on these assurances, frequently consulting Mallette and asking/permitting
her to argue the merits of crucial objections. At times, the trial judge instructed Mallete to
participate actively in Hill’s defense while instructing Hill to remain silent and speak through
his attorney. Thus, Mallette’s role at trial was not limited to standby counsel, and her
involvement was more akin to one acting as “co-counsel.” See Metcalf v. State, 629 So. 2d
558, 562 (Miss. 1993) (noting that “hybrid representation” is a “middle ground” serving “to
16
strike a balance between the right to counsel and the right to self-representation.”). Her
expanded role at trial only compounded the error made when the court determined that
Mallette had a conflict of interest but did not remove her from the case.
¶35. By their very nature, our constitutional guarantees of due process of law and the right
to counsel encompass the right to conflict-free representation and undivided loyalty. See e.g.,
Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d 220 (1981) (citing
Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980); Holloway v.
Arkansas, 435 U.S. 475, 481, 98 S. Ct. 1173, 1177, 55 L. Ed. 2d 426 (1978)); Kiker v. State,
55 So. 3d 1060, 1066 (Miss. 2011) (citing Littlejohn v. State, 593 So. 2d 20, 23 (Miss.
1992); Armstrong v. State, 573 So. 2d 1329, 1331 (Miss. 1990)). It is evident from the
record that Hill’s constitutional rights to assistance of counsel and/or self-representation were
compromised before his first trial had begun. U.S. Const. amend VI; Miss. Const. art. 3, §
26. The trial court twice required Mallette to continue representation, despite conflicts of
interest. Although the trial court followed the narrative provided in Rule 8.05, without an
explanation and waiver of the conflict, Hill could not “knowingly and voluntarily” exercise
his right to self representation. URCCC 8.05. Hill could not have made an informed and
intelligent decision to waive his right to counsel, because Hill was not given the option of
being defended by conflict-free counsel. Having determined that Mallette had a conflict of
interest warranting her removal from the case, the trial court erred by appointing her as
standby counsel. The error was compounded when the trial court encouraged, and sometimes
17
required, that Mallette participate as “hybrid counsel.” Accordingly, I would reverse the
judgment of conviction based on a conflict that had existed long before trial began.
WALLER, C.J., DICKINSON, P.J., CHANDLER AND KING, JJ., JOIN THIS
OPINION.
COLEMAN, JUSTICE, DISSENTING:
¶36. I find persuasive the reasoning of several courts that have held that a criminal
defendant has no Sixth Amendment right to advisory counsel after validly waiving his right
to counsel at trial. See U.S. v. Singleton, 107 F.3d 1091, 1102 (4th Cir. 1997); U.S. v.
Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996); People v. Brante, 232 P.3d 204, 208 (Col. App.
2009); People v. Gordon, 166 Cal. Rptr. 809, 814 (Cal. App.1980); State v. Clark, 722
N.W.2d 460, 466 (Minn. 2006); State v. Gonzales, 181 Ariz. 502, 510, 892 P.2d 838, 846
(1995). Hill, not his advisory counsel, “must be allowed to control the organization and
content of his own defense, to make motions, to argue points of law, to participate in voir
dire, to question witnesses, and to address the court and the jury at appropriate points in the
trial.” McKaskle v. Wiggins, 465 U.S. 168, 174 (1984).
¶37. I am not, as the majority suggests, concerned with whether Hill has a Sixth
Amendment right to advisory counsel. He does not. My concern is with the effect of the
absence of a Sixth Amendment right to advisory counsel on the majority’s attempt to find a
violation of the nonexistent right. Perhaps one appointed as advisory counsel could give bad
advice to a client – even awful advice. However, the majority does not adequately explain
how – even if Hill has shown a failure of his advisory counsel to render good advice – the
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purported failure of advisory counsel rises to the level of a Sixth Amendment violation when
Hill clearly and on the record waived his Sixth Amendment right to counsel.
¶38. Because I cannot agree with the logic of the majority in predicating its holding on the
violation of a Sixth Amendment right to advisory counsel that does not exist, I respectfully
dissent.
RANDOLPH, P.J., JOINS THIS OPINION.
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