September 16, 2015.
J. Drake, Esq., Drake Law, LLC, Auburn, for appellant Joshua
Anderson, District Attorney, and Robert L. Ellis, Asst. Dist.
Atty., Prosecutorial District No. Two, Portland, for appellee
State of Maine.
T. Mills, Attorney General, and Leanne Robbin, Asst. Atty.
Gen., Office of the Attorney General, Augusta, for amicus
curiae Maine Office of the Attorney General.
Lyons, Stud. Atty., and Christopher Northrop, Esq.,
Cumberland Legal Aid Clinic, Portland, and David Bobrow,
Esq., Bedard and Bobrow, PC, Eliot, for amicus curiae Maine
Association of Criminal Defense Lawyers.
L. Heiden, Esq., American Civil Liberties Union of Maine
Foundation, Portland, for amicus curiae American Civil
Liberties Union of Maine Foundation.
J. Drake, Esq., for appellant Joshua R. Nisbet.
Robbin, Asst. Atty. Gen., for appellee State of Maine.
ALEXANDER, MEAD, GORMAN, JABAR, and HJELM, JJ.
[¶1] Joshua R. Nisbet was convicted of
robbery (Class A), 17-A M.R.S. § 651(1)(E) (2015), in
the Unified Criminal Docket (Cumberland County, Warren,
J. ) after a jury trial. Nisbet proceeded to trial
without representation by counsel after the court permitted
the withdrawal of two attorneys who had represented him
jointly as his fourth and fifth attorneys, because Nisbet had
made a direct and express threat to cause serious bodily harm
to one of those attorneys in the presence of the other. Based
on the combined effect of that threat, Nisbet's
deliberate unwillingness to work with those attorneys'
predecessors, and the absence of any prospect that he would
work cooperatively with successor counsel, the court
determined that Nisbet had forfeited his right to counsel and
required Nisbet to proceed to trial as an unrepresented
defendant, although with the assistance of standby counsel.
Nisbet appeals the judgment and challenges the court's
determination that he forfeited his right to counsel. In this
matter of first impression in Maine, we conclude that in
circumstances of egregious misconduct affecting the exercise
of the right to counsel, such as those presented here, an
accused can forfeit that right, and that the court did not
err in determining that Nisbet's conduct rose to the
level that constituted a forfeiture. We also conclude
alternatively that the record establishes that through his
misconduct, Nisbet waived his right to counsel by
implication. Accordingly, we affirm.
[¶2] Because the procedural history of this
case is critical to the legal analysis, we review it in some
[¶3] On July 18, 2011, the State charged
Nisbet by criminal complaint with robbery (Class A),
see 17-A M.R.S. § 651(1)(E), alleging that he
committed the crime at a convenience store in South Portland
while brandishing a knife. Nisbet was arrested two days
later. After he was indicted in September 2011, the case
proceeded to a four-day jury trial in late April and early
May 2014, which resulted in a guilty verdict. The court
subsequently sentenced Nisbet to a fourteen-year prison term,
with all but seven years suspended and four years of
[¶4] Five attorneys represented Nisbet
during the three years the case was pending in the trial
court. Following Nisbet's initial appearance on July 20,
2011, the court ( MG Kennedy, J. ) appointed
Attorney Randall Bates to represent Nisbet. The case was
initially scheduled for trial in November 2011, but was then
continued to January 2012. On November 16, 2011, Attorney
Bates moved to withdraw as counsel, stating in his motion,
Defendant has made it abundantly clear that he no longer
believes that Counsel is representing Defendant vigorously
enough. Defendant has made several phone calls from the jail
elaborating on his loss of confidence in Counsel, despite
Counsel having represented him in the past . . . . [T]he
relationship between Defendant and Counsel has irrevocably
court ( Cole, J. ) granted the motion on December 9,
2011, appointed Attorney Robert LeBrasseur to represent
Nisbet, and set a new trial date of February 2012.
[¶5] In early January 2012, Attorney
LeBrasseur filed various discovery motions and a motion to
suppress. The court ( Wheeler, J. ) adjudicated
those motions after a hearing held in March 2012. Earlier, on
February 21, 2012, Nisbet had written a letter directed to
Attorney LeBrasseur but sent it to the court, requesting to
be appointed co-counsel, explaining, " I don't want
to be told I can't speak on my behalf or ask questions .
. . ." After two more continuances, one of which was
requested by the State, a new trial date was set for May
2012. In late April 2012, Attorney LeBrasseur filed a motion
to withdraw as Nisbet's counsel, claiming that Nisbet had
been hostile during telephone conversations with members of
his staff and that consequently the attorney-client
relationship had eroded. The court ( Cole, J. )
granted Attorney LeBrasseur's motion on May 7, 2012, and
that day appointed Attorney Kristine Hanly to represent
Nisbet. The court also set a new trial date of July 2012.
[¶6] Attorney Hanly filed a discovery
request soon after her appointment to the case, and she filed
two successive motions to continue to allow more time for her
to review the " extensive" discovery and to further
conduct a pretrial investigation. Attorney Hanly also filed a
notice of alibi, see U.C.D.R.P.--Cumberland County
16A(b)(3); M.R.U. Crim. P. 16A(b)(3), and a motion for
sanctions based on allegations that the State failed to
produce discovery. The court ( Moskowitz, J. ) heard
and denied the motion, concluding that the information at
issue had been provided, did not exist, or was available
independently to the defense.
[¶7] In late January 2013, Attorney Hanly
filed a motion for leave to withdraw, stating that " due
to comments and conduct of the client, Counsel believes that
the attorney-client relationship has been irretrievably
damaged." At a hearing on the motion, Nisbet agreed to
Attorney Hanly's withdrawal and told the court that he
was in the process of retaining an attorney. The court
granted the motion to withdraw but before doing so, told
Nisbet, " You so far have had three excellent lawyers
representing you, and we're about to deal with your third
lawyer's motion to withdraw . . . . It's important
that you cooperate with the next attorney that gets on board
with you, whether it's someone your family hires or
whether it's someone the [c]ourt appoints." In a
subsequent written order memorializing the ruling, the court
stated, " In no event will the trial in this matter be
delayed. If retained counsel does not enter an appearance by
2-8-13, the court will appoint a fourth and final attorney to
represent Mr. Nisbet." (Emphasis in original.) At the
hearing on Attorney Hanly's motion to withdraw, the court
also took up discovery issues, which Attorney Hanly described
as originating with Nisbet's belief that police officers
had falsified reports and that technological evidence and
videos existed to prove that allegation.
[¶8] Despite Nisbet's suggestion to the
court that he would soon be represented by retained counsel,
no attorney entered an appearance, and so on February 26,
2013, Attorneys Neale Duffett and Jon Gale were appointed as
co-counsel to represent Nisbet. They filed a motion to
continue the trial date, and the court ( Warren, J.
) granted the motion.
[¶9] At a status conference held in August
2013, Nisbet filed a motion to remove Attorneys Duffett and
Gale as his attorneys. The court engaged in a colloquy with
Nisbet in which the court reminded Nisbet that the prior
said that you would get your final attorneys when [the court]
relieved [Attorney Hanly]. . . . [Y]ou were on notice that we
weren't going to keep replacing attorneys even if you
asked for that and that you might be in a situation where
you'd have to represent yourself if you really want to
unload your attorneys.
court also told Nisbet that he was " at the end of the
line on attorneys" and explained the dangers of
proceeding without counsel. The court advised Nisbet that the
prosecutor who would try the case for the State and Attorneys
Duffett and Gale all were experienced lawyers:
They know [the] rules of evidence. They know the court
procedures and . . . have done lots of trials. I don't
know whether you've ever represented yourself or have any
legal training or have had any courtroom experience where
you've been [a party] in a trial . . . . And so, if you
haven't had that, you're at a tremendous disadvantage
if you are representing yourself . . . . [T]hese are the
fifth and none of them are inexperienced attorneys.
They're all--some of our most experienced, better
criminal defense attorneys . . . [Their] collective
experience dwarfs that of anyone else we could assign at this
point. So, I don't see that a dissatisfaction with an
attorney is going to change if we keep adding additional
attorneys or keep replacing them.
then told the court that he wanted to proceed with counsel
and withdrew his motion to remove Attorneys Duffett and Gale.
The court formally denied the ...