RI Supreme Court #99-376-CA, 98-263-CA (W1/96-595A) Flanders, Justice, dissenting. I respectfully dissent from the Court’s opinion. I believe that the Superior Court violated this pro se defendant’s Sixth Amendment rights in three specific ways.
First, both state and federal precedent required the Superior Court to conduct at least some type of a Faretta31’ inquiry with this indigent defendant after it allowed his first attorney to withdraw, appointed another attorney to represent him, and told him it would not entertain a similar motion to remove his second attorney if he could not get along with that lawyer. This error — which resulted in the defendant’s representing himself at trial against capital felony charges — cannot be rendered harmless by seizing upon this unrepresented defendant’s later admissions and using them to conclude that, notwithstanding the court’s error in failing to undertake a Faretta inquiry, he must be deemed to have knowingly and intelligently waived his right to counsel. See related section.
Second, the trial justice violated the defendant’s constitutionally protected right to participate in juror voir dire, including sidebars during which the court conducted individual juror voir dire, by effectively precluding him from being present when this voir dire occurred. See related section.
Third, the trial justice violated the defendant’s Sixth Amendment rights when he barred him from participating in various substantive chambers conferences that occurred throughout the trial. In my judgment, these errors constituted significant constitutional violations that require this Court to vacate the defendant’s conviction and remand this case for a new trial in the Superior Court. See related section.
Before trial, defendant repeatedly expressed to the Superior Court his displeasure with his first appointed counsel.32 After several attempts at reconciliation, this first assigned attorney ultimately acquiesced in defendant’s request to have him removed from the case. Although the motion justice reluctantly agreed to allow this attorney to withdraw, she stated: "I am also going to tell you that I am not going to entertain a similar motion again." The defendant replied: "the next attorney that I receive is basically I am stuck with — I don’t know — I don’t really understand what you are saying." (Emphasis added.) Without explaining to defendant the significance of her order, which defendant understood to mean that "the next attorney that [I] receive is basically I am stuck with," the motion justice continued the matter until the court could appoint replacement counsel for defendant. It is at this point that applicable United States Supreme Court precedent required the hearing justice to engage in a Faretta inquiry with the defendant.33
Although the court eventually appointed a second attorney to represent him, defendant also experienced problems with this second attorney that were similar to those he reported having with his first appointed lawyer. Ultimately, defendant filed a disciplinary complaint against the second appointed attorney, thereby creating a conflict of interest that prevented this attorney from continuing as his counsel. A few days before defendant’s scheduled trial, at a hearing on removing defendant’s second attorney, the motion justice stated as follows:
"I previously allowed you to release [your first lawyer] as attorney in connection with this case. And if you recall when I did that and made the court appointment of [your second lawyer], I told you that would be your last court appointed lawyer. *** So, in effect, I have lowered your options. The trial is established as a date certain for [next] Monday will go forward as scheduled. You can hire your own lawyer privately to be ready on Monday to go forward with the case, or you can represent yourself at the trial." (Emphasis added.)
The defendant then stated that he was incapable of handling the case himself, and the following exchange occurred:
"COURT: And you will go forward to trial next week.
"COURT: And you can do whatever you want to do to assist yourself.
"DEFENDANT: On trial between now and then? I don’t know what I’m supposed to do, Your Honor."
Notwithstanding defendant’s professed bewilderment at this turn of events, the court allowed defendant’s second attorney to withdraw from the case and ordered defendant to proceed to trial by representing himself as his own attorney (that is, pro se). The trial justice, who was not the same justice who handled these pretrial matters, refused at that point to appoint new counsel for defendant, stating "[y]our choices are these, [y]ou appear pro se, as you indicated you would do.34 The court will consider backup counsel for you, or you make your peace with [your second lawyer]." The court then proceeded to trial with the defendant ordered to represent himself pro Se, albeit with standby counsel appointed by the court.35
Because the rights enumerated in the Sixth Amendment are fundamental to the adversarial system of criminal justice, they are "part of the ‘due process of law’ that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States." Faretta v. California. 422 U.S. S06, 818, 95 S. Ct. 2525, 2532, 45 L. Ed. 2d 562, 572 (1975). In my judgment, the pretrial motion justice violated defendant’s Sixth Amendment right to counsel when she "lowered [his] options" and told defendant that the second attorney that she assigned to him would be his last court-appointed lawyer. I reach this conclusion because she did so without also conducting the constitutionally required Faretta inquiry into whether defendant’s potential waiver of his right to counsel — if he was unable to get along with this second lawyer — was knowing and intelligent.
In 1975, in Faretta, ~ the United States Supreme Court held that the Sixth Amendment to the United States Constitution guarantees criminal defendants both the right to counsel in criminal cases and the right to self-representation. Before a court can allow a defendant to represent himself or herself pro se at trial, however, the defendant must voluntarily, knowingly, and intelligently waive his or her right to representation by an attorney (appointed or retained). In Faretta the Court stated that "[a]lthough a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open."’ ~ 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581-82 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 5. Ct. 236, 242, 87 L.Ed. 268, 275 (1942)). (Emphasis added.)
Here, the trial court never made defendant aware of the "dangers and disadvantages of self-representation" before it "lowered [his] options" and gave him the choice of either going to trial represented by his second court-appointed counsel or proceeding to trial without any lawyer to represent him. It was after the court dismissed defendant’s first appointed counsel that the hearing justice should have conducted a Faretta inquiry.36 Instead, the court effectively forced him either to allow his second appointed attorney or standby counsel to represent him at trial or else to represent himself at trial. By refusing to appoint another attorney for him after he was unable to get along with his second appointed attorney, the court held defendant to the pro se choice he had made by disqualifying his second lawyer. But neither the motion justice nor the trial justice ever took the time or trouble to make sure that the record established that defendant knew about the dangers and disadvantages of self-representation before he took steps to disqualify his second appointed counsel from representing him. The trial justice’s later offer to allow standby counsel to "slide over" did not cure this basic problem because no one made sure that defendant’s decision to proceed pro se was knowing and intelligent as required by Faretta.37 As a result, we lack a factual basis to know whether defendant’s conduct that led to his self-representation at trial was "‘made with eyes open"’ to the. potential adverse consequences of pro se representation. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541,45 L. Ed. 2d at 58 1-82.
When a court places a defendant in this position of choosing between proceeding to trial pro se or with appointed counsel that defendant may seek to discharge, other courts have found that a defendant’s refusal of appointed counsel’s services is tantamount to a voluntary waiver of the right to counsel. ~ United States v. Padilla, 819 F.2d 952, 956 (10th Cir. 1987). Thus, in the case at bar, when defendant filed a disciplinary complaint against his second appointed attorney after the court informed him that this would be his "last" appointed lawyer and after he refused to accept the services of standby counsel appointed by the court, he must be deemed to have voluntarily waived his right to counsel. This is so because the court provided defendant with two different court-appointed attorneys, told him that this second attorney would be the last one the court would appoint for him, and offered, though defendant refused, to have standby counsel represent him at trial. The Faretta analysis, however, does not end with an inquiry into the voluntariness of the defendant’s conduct that resulted in his or her pro se status; rather, the trial court still must determine whether defendant knowingly and intelligently waived his right to counsel before he took steps to disqualify his appointed attorneys and before he refused the services of standby counsel.
In State v. Spencer~ 783 A.2d 413 (R.I. 2001), this Court recently had the opportunity to pass on whether a defendant’s waiver of the right to counsel was voluntary, knowing, and intelligent. In that case, the defendant waived his right to counsel in the middle of his criminal trial and announced that he wished to proceed pro se. Id. at 415-16. On appeal he argued that, because the trial justice did not conduct the multi-pronged inquiry specified in State v. Chabot. 682 A.2d 1377 (RI. 1996), the defendant did not knowingly and intelligently waive his right to counsel. Spencer, 783 A.2d at 416. In Spencer, however, we held that compliance with the Chabot checklist is required only in those situations in which there are legitimate concerns about the defendant’s mental condition. Id. at 416. Otherwise, the Court ruled, "[w]e are persuaded that an examination of the totality of the circumstances, in light of the particular stage of the proceedings at the time the waiver is proposed, is the better approach to determine whether a waiver of counsel is knowing, voluntary and intelligent." Id. at 417.
The state and the majority argue that an examination of the totality of the circumstances in this case, as in Spencer, satisfies the second prong of the Faretta waiver analysis. To be sure, the record shows that, after defendant made his "choice" to disqualify his "last court-appointed lawyer," he may have come to appreciate (the hard way) at least some of the pitfalls of representing himself at trial. Significantly, however, this evidence arose after the court "lowered [defendant’s] options" by telling him it would not appoint another attorney to represent him if he was unable to get along with his second appointed attorney. Importantly, the Court’s conclusion in Spencer relied upon a colloquy between the trial justice and the defendant before the court granted the defendant’s request to proceed pro se. It did not address a situation like this one in which the court requires the defendant to proceed p~ se because of his inability to get along with or accept the services of appointed counsel. And in Spencer, unlike this case, the Court was "satisfied that the trial justice engaged in a pragmatic inquiry sufficient to satisfy himself that defendant’s waiver of counsel was made ‘with eyes open."’ Spencer, 783 A.2d at 418 (quoting Faretta, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581-82).38 Unlike the case at bar, the trial justice in Spencer engaged in at least some type of "pragmatic inquiry" with the defendant about the inadvisability of the defendant’s proceeding pro se including telling him that the court did not believe it was a "good idea," and informing the defendant that the court would hold him to the rules of procedure. Most importantly, this inquiry occurred on the record, before the court allowed the defendant to proceed pro se.
Here, however, no such pitfalls-of-self-representation colloquy occurred between defendant and the motion justice. And even though Spencer limited the applicability of Chabot to defendants with potential mental problems, and concluded that "a detailed colloquy between the trial court and the defendant *** is not constitutionally required," Spencer, 783 A.2d at 416 (emphasis added), it is still evident That some type of inquiry or communication between the court and defendant is required to ascertain whether defendant is aware of "the dangers and disadvantages of self-representation," before defendant sets a course leading to p~ se representation. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581-82. Furthermore this inquiry or communication "must sufficiently establish that knowledge and understanding on the record," Chabot, 682 A.2d at 1381 (emphasis added), "so that the record will establish that ‘[the defendant] knows what he [or she] is doing and his [or her] choice is made with eyes open.’ Adams v. United States ex rel. McCann, 317 U.S. at 279." Faretta, 422 U.S. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 58 1-82 (holding that the trial judge must make an inquiry to establish the defendant’s knowledge concerning the pitfalls of pro se status and that the record must so reflect).39 I also do not believe that we can make unjustified assumptions about what defendant’s appointed counsel may have told him concerning the dangers of proceeding to trial as a pro se defendant. The majority states that "[i]t is reasonable to assume that [defendant’s] two former attorneys had also discussed with him * * * the benefits of legal representation, including the dangers of proceeding without it." (Emphasis added.) But making such assumptions flies in the face of Faretta’s clear mandate requiring record support for a knowing and intelligent waiver of the right to counsel. To speculate about what defendant’s former attorneys may have advised him and about defendant’s possible dilatory motives, presumed knowledge about his pro se status, and implicit understanding about the hazards of representing himself against capital felony charges, without any record support for what his discharged lawyers may have informed him, eviscerates defendant’s Sixth Amendment rights as guaranteed by Faretta and is precisely the type of hypothetical theorizing that the United States Supreme Court has frowned upon by requiring record support for the right-to-counsel waiver. Moreover, the majority’s reliance on the First Circuit case of Maynard v. Meachum, 545 F.2d 273 (1st Cir. 1976) is misplaced.40 In sum, the "totality of the circumstances" test should not be applied like a giant appellate sponge to soak up and wipe away the trial court’s errors in failing to ascertain on the record whether defendant appreciated the significant downside risks of representing himself at trial.
Here, the pretrial motion justice should have conducted a Faretta-type inquiry after she released defendant’s first attorney from the case, and warned him that the court would not appoint another attorney to represent him if he could not get along with his second attorney. At that point the motion justice should have informed defendant of the inadvisability of proceeding pro se, and of the other pitfalls that might accompany such a decision on his part. Padilla, 819 F.2d at 959 (suggesting that a trial justice must conduct a Faretta inquiry before defendant has fired or refused appointed counsel); People v. Arguello. 772 P.2d 87, 97 (Cob. 1989) (en bane) (holding "before a reviewing court can find a valid implied waiver based on conduct, there must be ample, unequivocal evidence in the record that the defendant was advised properly in advance of the consequences of his actions"). See also United States v. Mohawk, 20 F.3d 1480, 1484 (9th Cir. 1994) (holding that the complete lack of a Faretta inquiry "is conclusive and requires automatic reversal of a defendant’s conviction"). It is at this critical stage of the proceeding —before the defendant has opted to discharge his "last" appointed attorney — that a Faretta inquiry would best protect the defendant’s Sixth Amendment rights. In short, the court needs to warn a defendant about the disadvantages of pro se status before he or she takes any action that may have an impact upon his or her constitutional right to counsel.
In this case, the court never warned defendant of the potential adverse consequences to him of having to try his own case pro se before he took steps to disqualify his "last" appointed attorney. Any inquiry or communication with defendant that occurred after this point would have been too little and too late to warn him about the pitfalls of self-representation because, having begun the trial as his own attorney with the court refusing to appoint another attorney for him (save for standby counsel), defendant was no longer in a position to act on such warnings. In any event, no such communication occurred. Therefore, I believe, to comply with applicable United States Supreme Court precedent, a trial court must conduct some type of a Faretta inquiry — in connection with evaluating ‘the totality of the circumstances"— to assure itself that the defendant is aware of the potential negative aspects of representing himself or herself before allowing or forcing a defendant to proceed pro se. See Mohawk, 20 F.3d at 1485 (quoting United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir. 1978), "[t]he manner in which a defendant conducts his defense cannot establish his state of mind at the time he opted for self-representation"). Even relatively knowledgeable defendants should be given some kind of a Faretta-type inquiry before the court involuntarily thrusts pro se status upon them. Mohawk 20 F.3d at 1485 (reversal when no transcript of lower court waiver hearing available for appellate review, even though defendant handled his defense "more or less capably," and waiver actually may have been knowing and intelligent); Gilbert v. Lockhart, 930 F.2d 1356, 1359 (8th Cir. 1991) (reversal when defendant’s eight prior felony convictions were insufficient to create inference that he knew of risks of self-representation); Greene v. United States, 880 F.2d 1299, 1304 (11th Cir. 1989) (waiver invalid when no inquiry into defendant’s education, background, experience, or level of legal expertise, even though defendant had substantial experience with criminal justice system); Berry v. Lockhart, 873 F.2d 1168, 1170-71(8th Cir. 1989) (waiver invalid when court did not advise defendant of perils of proceeding pro se even though defendant had college education, experience with criminal justice system, and did "reasonable job" handling his own case).
It also has been suggested that defendant deftly used his ability to dismiss his court appointed attorneys as a delaying tactic. But courts that have addressed this precise situation have found that such dilatory antics, while frustrating to the trial judge, are no excuse for dispensing with a Faretta inquiry. As the Iowa Supreme Court observed, "[w]hile we sympathize with the frustration and exasperation of the district court, ‘even well-founded suspicions of intentional delay and manipulative tactics can provide no substitute for the inquiries necessary to protect a defendant’s constitutional rights."’ State v. Martin, 608 N.W.2d 445, 450 (Iowa 2000) (quoting McMahon v. Fulcomer, 821 F.2d 934, 943 (3d Cir. 1987)). See also State v. Young 626 So.2d 655, 657 (Fla. 1993) (holding that although judges may presume that abuses of the right to counsel may constitute a request to proceed Pro Se, this presumption must be confirmed with a Faretta inquiry). Therefore, the trial court’s reliance on a belief, however well-founded, that defendant was abusing his Sixth Amendment right to counsel and was seeking to delay the trial by manufacturing problems with his appointed attorneys still does not justify a judicial deep-sixing of the need for a Faretta inquiry.
Because the record in this case is devoid of any type of Faretta inquiry or communication, I would hold that the Superior Court violated defendant’s Sixth Amendment right to counsel by insisting that he proceed to trial without a lawyer and without first ascertaining that he did so knowing about the potential downsides of self-representation. Hence, I would vacate defendant’s conviction and remand the case for a new trial.
Besides requiring defendant to represent himself at trial without making sure he was aware of the dangers of self-representation, the trial justice also prohibited defendant from participating in pretrial sidebar conferences during which the court conducted voir dire of individual jurors:
"I will ask questions of the jury that are called to the box, and I will permit Ms. Lynch [the prosecutor], Mr. Thornton, and/or standby counsel, to make further inquiry. Those who wish to see the [court at side bar because of disclosures, or because they feel that they cannot serve as fair and impartial jurors, will be allowed to come to side bar with Ms. Lynch and standby counsel." (Emphasis added.)
Both defendant and the state acknowledge that the trial justice effectively excluded defendant from participating in these voir-dire sidebars.41 Thus, the state, in its brief to this Court, states that:
"At the pretrial hearing on December 2, 1997, * * * [t]he court then advised defendant that although defendant as well as standby counsel would be able to question jurors during voir dire as a group, during individual voir dire at side bar only standby counsel and the prosecutor would be permitted to participate." (Emphasis added.)
In acknowledging this exclusion, both sides refer to the trial justice’s above-quoted ruling distinguishing the procedure for questioning potential jurors "that are called to the box" from "[t]hose [jurors] who wish to see the [c]ourt at side bar because of disclosures, or because they feel that they cannot serve as fair and impartial jurors." With respect to this latter group, the trial justice ordered, they "will be allowed to come to side bar with Ms. Lynch [the prosecutor] and standby counsel." (Emphasis added.) Thus, it appears to me that, as the state concedes, the trial justice flatly barred defendant from attending sidebars for the purpose of jury voir dire but allowed him to attend other sidebars only if he wore handcuffs. This conclusion, I submit, is bolstered by the trial justice’s further statement to defendant about why his exclusion from the voir-dire sidebars would not prejudice him:
"And that’s why, rather than have you in cuffs [sic]. And because Mr. Amalfetano is your standby counsel, he’s perfectly willing as standby counsel, as he’s already assisted you in the rest of these motions and memoranda, to indicate what’s going on there, to protect your interests, and reporting back to you. Of course, Mr. Thornton, just so you’ll understand the sidebar during the voir dire process, during the jury selection process, what is it to you if the Court excuses someone out of our collective decision if that person cannot be fair and impartial to you? How are you being prejudiced m any way?"
In any event, even if the trial justice had not absolutely excluded defendant from voir-dire sidebars, defendant would have been faced with the Hobson’s choice of attending them in handcuffs, or not at all,42 as revealed by the following exchange that occurred between defendant and the court:
"DEFENDANT: Also, too, I spoke to advisory counsel, standby counsel, in regard to you having side bars, and I made him aware, and I’ll make the Courts [sic] aware, that since I am at this stage lead counsel, not at my own free will, but I would like to participate in anything or any — any conversation that is addressed in this Court for these alleged charges, and also anything that’s said at side bar.
"COURT: Well, you will be participating because Mr. Amalfetano [standby counsel] will be providing you with what goes on at side bar.
"DEFENDANT: He made me aware that you prefer to have me in handcuffs. That if I was to stand at side bar, I would have to be in handcuffs.
"COURT: That’s correct.
"DEFENDANT: Okay, so the impression, once again, upon the jury, would a side bar take place in front of a jury?
"COURT: That’s exactly what sidebars do, and that’s what is permitted under our rules. And that’s why, rather than have you in cuffs [sic]. And because Mr. Amalfetano is your standby counsel, he’s perfectly willing as standby counsel, as he’s already assisted you in most of these motions and memoranda, to indicate what’s going on there, to protect your interests, and reporting back to you. "Of course Mr. Thornton, just so you’ll understand the side bar during the voir dire process, during the jury selection process, what is it to you if the Court excuses someone out of our collective decision if that person cannot be fair and impartial for you?. How are you being prejudiced in any way?"
"DEFENDANT: I don’t know. You know, first of all, once again, I’m a blind man walking. I don’t know what’s going on. But I just want to know, you know, let you know that anything you confer on or make your opinions on or whatever, side bar, whatever, I believe that, as an individual, I would prefer to be there to hear everything. Not saying that standby counsel will not advise me. but I just want to participate to the fullest of my individual right of being accused. "And that’s all I would have to say on that, your Honor. It’s going to be your discretion, your decision, I just want you to be aware.43 (Emphasis added.)
In my judgment, the trial justice violated defendant’s Sixth Amendment rights by effectively excluding him from participating in sidebars during which the court conducted voir dire of potential jurors. The trial justice did not ameliorate this error by permitting defendant’s standby counsel to attend these sidebars. Unfortunately, however, the trial stenographer did not transcribe the proceedings during the voir dire of the potential jurors, including bench conferences during which the court questioned individual jurors. But here again, the state concedes in its brief that such sidebars occurred: "[t]he substance of most bench conferences, including those during individual jury voir dire, was not laid out on the record." (Emphasis added.) If no such bench conferences involving the voir dire of individual jurors had occurred, then the state would have suggested as much in its brief and contended that defendant’s arguments on this issue were a moot point. But it did not do so, stating only that "[t]he substance of most bench conferences *** was not laid out on the record." Thus, I infer from the state’s response to defendant’s arguments on this issue that such bench conferences indeed occurred and that, as the trial justice ruled before the voir dire began, defendant was barred from attending them.
The key United States Supreme Court case dealing with the proper role of standby counsel vis-à-vis pro se defendants is McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). In that case, the defendant argued that standby counsel interfered with his ability to present his case and thus violated his Sixth Amendment right to counsel. In analyzing the appropriate roles for standby counsel and pro se defendants, the Court enumerated specific rights that attach to a defendant’s right to proceed to trial pro Se. The Court stated "[a] defendant’s right to self-representation plainly encompasses certain specific rights to have his voice heard. The pro se defendant 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." Id. at 174, 104 S. Ct. at 949, 79 L. Ed. 2d at 131. (Emphases added.)
Given the clear statement of the United States Supreme Court on this question, I believe the trial justice erred by excluding defendant from sidebars during which the court conducted individual voir dire of jurors, and thereby violated defendant’s Sixth Amendment right to counsel. The teaching of McKaskle is binding on us, and that case accords to pro se defendants the right to participate in the voir dire of potential jurors — at least requiring them to be present when it occurs. A disagreement with the substance of this ruling is not now, nor has it ever been, a proper justification for ignoring its mandate — one which we, of course, are bound to follow. Although the perception of the jury may have been one of defendant’s concerns about the court’s allowing only standby counsel to be present during the voir-dire sidebars, it is clear from the record that defendant attempted to assert his individual right to participate personally in the court’s voir dire of potential jurors. Participating in voir dire does not mean being told after the fact — at the conclusion of the inquiries and responses that defendant was unable to hear —what decisions the court has made concerning the juror in question.
It is also irrelevant for purposes of this analysis that the trial justice allowed defendant’s standby counsel to participate in voir-dire sidebars. The McKaskle rights, enumerated above, unequivocally grant a pro se defendant the personal right to participate in voir dire — at least by being present to hear the questions and answers and to request any desired supplementation and follow-up inquiries to the court. Otherwise, how can the pro se defendant intelligently exercise his or her right to challenge for cause or to excuse the juror peremptorily?"44 Moreover, the trial justice seemed to believe that, as long as he allowed standby counsel to participate in juror voir dire, he had the discretion to exclude the pro se defendant unless his decision to do so prejudiced defendant in some way. I believe, however, that the trial justice committed error in this respect.
First, as noted above, harmless-error analysis does not apply to Sixth Amendment tight-to-counsel-clause violations. See note 8, supra. Thus, defendant need not show that his effective exclusion from the voir-dire sidebars prejudiced him, but merely that the trial justice did exclude him. Second, the United States Supreme Court in McKaskle has declared that a pro se defendant has a right to "participate in voir dire;" hence, this right must include, at the very least, attending the sidebar conferences at which any individual juror voir dire occurs. Therefore, the majority’s position that the trial court’s exclusion of defendant from sidebar conferences involving voir dire of individual jurors required a showing of prejudice, and that no reversible error occurred unless the jury perceived that defendant lacked control over his own defense, is at odds with the Supreme Court’s explicit pronouncements on this subject. Only such personal participation in voir dire will allow the pro se defendant to suggest additional questions, to argue to the court about whether to keep or exclude particular jurors, and to exercise peremptory challenges based on what the p~ se defendant has observed and heard. As the United States Supreme Court has stated, if a court permits standby counsel to "speak instead of the defendant on any matter of importance, the Faretta tight is eroded." McKaskle, 465 U.S. at 178, 104 5. Ct. at 951, 79 L. Ed. 2d at 133. Although not every sidebar conference will constitute a "matter of importance" requiring defendant’s presence, others (such as those in which juror voir dire occurs) certainly will. Therefore, the trial justice should have been more flexible concerning the options available to maintain courtroom security, yet still protect defendant’s constitutional right to have his own voice heard as a pro se defendant.45
Here again, the majority characterizes defendant’s absence from voir-dire sidebars as a product of his own choice. But, the majority’s "choice" analysis is irrelevant to the case before us, because the state concedes that the trial justice absolutely prohibited defendant from participating in the voir-dire sidebars. Thus, defendant never had a choice in the matter. Second, even if the trial justice had presented defendant with such a choice, it would have been a Hobson’s choice. To appear at sidebar in handcuffs would have negated the trial justice’s ruling on defendant’s motion in limine to prevent the jury from learning of his incarcerated status. Finally, as noted above, the majority errs in concluding that defendant bore the burden of demonstrating prejudice flowing from his exclusion from the voir-dire sidebars. See note 8, supra. Thus, the majority’s reliance on State v. Bleau, 649 A.2d 215 (R.I. 1994) is misplaced. Bleau involved jurors accidentally spotting a handcuffed defendant in the hallway of the courthouse, but not, as here, a deliberate forced display of a handcuffed defendant pursuant to a trial justice’s ruling that he must present himself in this fashion in open court. Although an accidental sighting of a handcuffed defendant in the hallways of the courtroom might not constitute a p~ se reversible error, a court-ordered requirement that a defendant be present in handcuffs at sidebar conferences in front of the jury is a horse of a different color. In the latter situation, the court itself is forcing the defendant to show the jury that he is in custody if he wishes to exercise a valid constitutional right by participating in the voir dire of jurors, whereas the Bleau situation simply involved an accidental sighting of a handcuffed defendant, which was subject to the usual harmless-error analysis.
Here, defendant’s exclusion from the voir-dire sidebars alone is sufficient to require reversal. By effectively barring defendant from attending sidebars at which the court conducted voir dire of individual jurors, the trial justice violated defendant’s Sixth Amendment right to counsel. Hence, the Court should vacate his conviction and remand the case for a new trial.
Finally, the trial justice excluded defendant from all chambers conferences. The state not only has acknowledged that the trial justice so excluded defendant, but also it has referred to a sixth chambers conference (the defense cited only five) from which the trial justice excluded defendant. These conferences included occasions when the attendees and the court
(1) discussed the appointment of an expert witness (a
psychiatrist) that defendant requested;
(2) discussed the defense expert’s request for money to conduct medical tests, and setting a deadline for the completion of the testing;
(3) notified standby counsel and the prosecutor of the court’s intention to deny defendant’s pro se motion for transcripts of other proceedings against him;
(4) excused a juror because the juror did not think he could be impartial;46
(5) informed standby counsel and the prosecutor that the court intended to allow defendant’s expert witness to testify; and
(6) interviewed a juror who belatedly realized that he knew an expert witness who had testified. Although standby counsel and the prosecutor were present with the trial justice during all these chambers conferences, the court flat-out barred defendant from attending them.47
As the state correctly points out, some of these chambers conferences involved mere housekeeping matters. Others, however, involved critical issues to defendant’s case, including potential juror bias. These latter conferences, including those dealing with potential juror bias, were certainly "matters of importance" upon which the pro se defendant had the tight to have his voice heard before the court ruled on whether the juror should or should not be excused. See generally McKaskle v. Wiggins, 465 U.S. 168, 104 S. Ct. 944, 79 L. Ed. 2d 122 (1984). He also had the right to hear and to observe the juror’s responses, so that he could intelligently argue to the trial justice about how he should deal with this particular juror. The trial justice even prevented standby counsel at one of these hearings from consulting with his "client" before the trial justice decided whether a juror’s alleged bias prevented the juror from remaining on the jury. See note 16, supra.
The majority has refrained defendant’s assertion that the trial justice violated his Sixth Amendment right to counsel by excluding him from chambers conferences as a Fourteenth Amendment due-process argument. But nowhere in his argument concerning the disputed chambers conferences does defendant allude to his due-process rights. His only contention is that such exclusion violated his Sixth Amendment right to counsel, as that right is guaranteed to him through the Fourteenth Amendment. Therefore, while the majority’s Fourteenth Amendment due-process analysis may be accurate with respect to whether a defendant who is represented by counsel can be excluded from chambers conferences, it is irrelevant to the case before us, and does not at all address defendant’s actual argument. Moreover, even if the majority’s Fourteenth Amendment analysis were on point to this case, it misconstrues defendant’s role in the proceedings below. The defendant was not simply a criminal defendant who was represented by counsel. Rather, he was acting pro se as his own attorney, with all the rights, privileges and responsibilities that come with that role. The majority apparently discerns no significance in this fact, and treats defendant and standby counsel — who was not defendant’s attorney — as interchangeable entities, essentially viewing standby counsel as able to represent defendant’s interests to the same extent as if he were defendant’s retained or appointed counsel. But such a view is completely unfounded, and is explicitly contradicted by controlling United States Supreme Court precedent. See McKaskle and Faretta, supra. The defendant was entitled, as discussed below, to be present as his own attorney at these chambers conferences — not to vindicate his Fourteenth Amendment right to a fair and just hearing — but to exercise his Sixth Amendment right to counsel. For this reason, the majority’s reliance on the State v. Souza, 425
A.2d 893 (R.I. 1981) and State v. Brouillard, 745 A.2d 759 (R.I. 2000) cases is misplaced because, in those cases, the defendants’ attorneys were present for the chambers’ conferences; thus, they do not address the right of pro se defendants to represent themselves at all critical stages of the trial.
The exclusion of a pro se defendant from substantive chambers conferences such as these impairs his or her Sixth Amendment rights as set out in McKaskle. Here, however, the analysis is slightly different because standby counsel’s participation and defendant’s exclusion occurred outside the presence of the jury. When standby counsel’s participation occurs outside the presence of the jury, only the first prong of the McKaskle analysis is implicated. The Court in McKaskle stated that "Faretta rights are adequately vindicated in proceedings outside the presence of the jury if the pro se defendant is allowed to address the court freely on his own behalf and if disagreements between counsel and the pro se defendant are resolved in the defendant’s favor whenever the matter is one that would normally be left to the discretion of counsel." McKaskle, 465 U.S. at 179, 104 S. Ct. at 951, 79 L. Ed. 2d at 134. But Faretta never contemplated the absolute exclusion of the pro se defendant from participation in substantive trial proceedings that occur outside the presence of the jury. Rather, the import of McKaskle on matters occurring outside the jury’s presence is not that the pro se defendant may be excluded, but that standby counsel may speak more freely in arguing points to the trial justice, even over the objection of the pro se defendant. In fact, the Supreme Court in McKaskle has specifically and unambiguously stated that the pro se defendant must have the opportunity to address the court on "matters of importance" — freely, on his own behalf, outside the presence of the jury.
The state acknowledges that the pro se defendant’s exclusion in this case from substantive chambers conferences — especially those involving potential juror bias — was problematic. But it mischaracterizes the import of the McKaskle decision on this issue. Because the trial justice’s rulings were resolved in favor of the pro se defendant and because the court later informed defendant of the decisions it had already reached at the conferences from which it excluded defendant, the state maintains that the trial justice did not violate defendant’s Sixth Amendment rights.48 This argument, however, confuses two separate issues. McKaskle focuses on the trial justice’s resolution of differences between standby counsel’s position and the Pro se defendant’s position on issues. But it does not turn on whether the trial justice’s ruling on the substantive issue was or was not in defendant’s favor. As noted above, McKaslde contemplates that the pro se defendant will participate in substantive chambers conferences, and that the court will resolve any disagreements that occur at these conferences between the pro se defendant and standby counsel in favor of the defendant, so that defendant can maintain control over his own defense.
Here, the trial justice’s complete exclusion of defendant from all the substantive chambers conferences during this trial meant that defendant never had the opportunity to address the court during those conferences, when he could best argue points of law and other "matters of importance" to the trial justice before the court decided the issue.49 Moreover, on at least one occasion (one of the potentially biased-juror conferences), standby counsel suggested that the trial justice should allow him to confer with the pro se defendant before the trial justice ruled on whether to exclude an allegedly biased juror. But the trial justice ignored this suggestion and excused the juror anyway, all without receiving any input from the pro se defendant. Thus, the trial justice had made his decision and dismissed the juror before he even heard from defendant.
McKaskle contemplates active participation by the pro se defendant in his case, so that he or she has the right to address the court freely, before the court rules on important motions and issues in the case. Outside the presence of the jury, standby counsel may take a more active approach to his or her unsolicited participation, and that is certainly appropriate. Contrary to the majority’s opinion, McKaskle does not suggest that the trial court may substitute standby counsel at will for the pro se defendant whenever trial conferences and proceedings occur outside the jury’s presence. Nothing in McKaskle supports the wholesale exclusion of pro se defendants from substantive chambers conferences (or from participation in other proceedings of substantive importance during the trial). Indeed, just the opposite is true.
McKaskle indisputably contemplates the active participation of the pro se defendant in substantive trial proceedings that occur outside the presence of the jury. It also allows standby counsel, however, to participate in a more active manner when the jury is not present because standby counsel’s participation will not harm the jury’s perception that the pro se defendant is managing the trial of his own case. Moreover, "[t]he right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused’s best possible defense." McKaskle, 465 U.S. at 176-77, 104 S. Ct. at 950, 79 L. Ed. 2d at 132. The exclusion of defendant from substantive chambers conferences undercuts the defendant’s "dignity and autonomy" that McKaskle seeks to protect. By excluding defendant from these substantive chambers conferences, I believe, the court violated defendant’s Sixth Amendment rights. Accordingly, I would vacate the defendant’s conviction and remand the case for a new trial.
Although the defendant argued vociferously against it, he must be deemed to have voluntarily chosen to proceed pro se because of his firing and removal of the two attorneys that the Superior Court appointed to represent him and his declination of the court’s offer to have standby counsel "slide over" and represent him during the trial. But even though the defendant must be deemed to have voluntarily waived his right to counsel, controlling Sixth Amendment law governing the fundamental tight to counsel required the motion justice to conduct a Faretta type inquiry into whether the defendant knowingly and intelligently understood the dangers of representing himself before disqualifying his second appointed attorney. The trial justice’s later offer to have standby counsel "slide over" and represent the defendant at trial did not cure this constitutional deficiency. Because no such inquiry occurred, I conclude that the Superior Court violated the defendant’s Sixth Amendment rights. In addition, the trial justice’s effective exclusion of the defendant from participating in sidebars during which the court conducted voir dire of individual jurors and from substantive chambers conferences during the trial also violated the defendant’s Sixth Amendment rights as enumerated by the United States Supreme Court in McKaskle. For these reasons, the trial justice prevented this pro se defendant, at important stages of the proceedings (the juror-voir-dire sidebars and substantive chambers conferences), from having his voice heard, contrary to the teachings of McKaskle. Moreover, it is also possible that the trial justice’s exclusion of the defendant from the juror-voir-dire sidebars tainted the jury’s perception and led them to believe that standby counsel, and not the pro se defendant, was in charge of his defense. Again, the appropriate remedy for these significant constitutional violations would be for this Court to vacate the defendant’s conviction and remand the case for a new trial. For these reasons, I do not join in the Court’s resolution of the other issues raised in this appeal, including those described in parts III through V of the Court’s opinion, because I would not reach these questions.
31Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
32 Although the majority states that defendant "failed to outline his specific concerns regarding [his first appointed counsel’s] representation," defendant did advise the hearing justice on October 28, 1996 as follows:
"I just don’t feel I am getting properly represented on certain issues of contacts when I called and try to speak with him, lack of interest, when I asked for certain things to be requested through the Courts as to motions that I have asked to have him put in for me. Also — okay? Things I asked for that has not been granted as far as him representing me, okay? And also the previous contacts, he is aware I tried to remove him before but I tried to see if I could —see, work that out and I just come to the conclusion it is not — it is not in my best interest under this type of magnitude that I am under -- I don’t feel I am going to get properly represented."
And even though, as the majority concludes, defendant may have been a clever, guileful person who dismissed his first appointed counsel for no reason other than to delay his trial, the hearing justice made no such finding that defendant possessed such an intent, nor did she rule that defendant’s complaints about his appointed attorney, though vague, were meritless. The motion justice told defendant at the first hearing, "I need specifically what your problem is. You are not being specific at all," and asked him to address whatever concerns he had with his first appointed attorney. At the later hearing on the removal of defendant’s first appointed counsel, held on November 25, 1996, defendant specifically explained his reasons for wishing to remove that attorney. Thus, he stated:
"I would like at this time to ask the Court to dismiss my attorney *** as my Public Defender for the following reasons. I have not been able to see [him] since that time I spoke about releasing him that time up until and I would say forty-eight hours ago. Okay? Also I am never been able to contact [him] since you told us to try to work it out. To me, [he] has failed to keep me abreast of the developments of this case and has not made me aware of any of the defenses that would be offered before the [c]ourt. Another problem is that there is an ongoing difference of opinion between me and [him]. It has affected the attorney/client relationship and the amount of trust that I have for [him]."
Finally, the majority states that at this subsequent hearing on November 25, 1996, the hearing justice "sens[ed] that [defendant) appeared to have initiated a course intended to delay his trial." The hearing justice, however, made no such statement or finding, nor did she intimate that that she held this opinion. And even though the majority may "sense that defendant engaged in delaying tactics when he dismissed his first appointed attorney, I can find no record support for the proposition that the hearing justice shared this view when she excused this attorney. The majority furthers its speculation about the hearing justice’s "sense when it states that "[despite her continued suspicion [of defendant’s delaying tactics]" (emphasis added) she excused defendant’s second appointed attorney. To be sure, at the hearing on September 4, 1997, some nine months after she excused defendant’s first appointed attorney, the hearing justice stated that defendant’s attempt to remove his second appointed lawyer "on the eve of trial" was not a "coincidence." But attributing a "continued suspicion" to the hearing justice relating back to defendant’s motion to dismiss his first appointed attorney enjoys no support in the record.
33The majority does not directly respond to this assertion, but includes a long exposition of defendant’s later statements after the court had imposed pro se status upon him because he was unable to get along with his second appointed lawyer.
34It is clear from the record, however, that defendant did not indicate that he would represent himself at trial, nor did he ever request to do so; rather, the court essentially forced him to do so because of his inability to get along with the two attorneys that the motion justice had appointed to represent him.
35Although the majority asserts that defendant refused his standby counsel’s services as trial counsel "apparently intending to be able to later capitalize on what he envisioned could be a built in trial error which, if convicted, could serve to his advantage," the trial justice made no such finding.
36 The majority focuses most of its analysis on defendant’s statements after the court ruled that defendant would have to proceed pro se if he could not get along with his second appointed counsel. But any later statements in which defendant admitted his desperate situation should be irrelevant to the analysis because they did not occur until after defendant "chose" to discharge his appointed attorneys and to proceed pro se. By then, his Pro se status was a fait accompli and he was reduced to pleading with the court to help him undo a choice that was anything but intelligent, informed, and knowledgeable when the court foisted it upon him.
37The majority refers to defendant’s rejection of three court appointed attorneys. In fact, the court only appointed two attorneys to represent defendant. The defendant refused appointment of his standby counsel as his trial counsel. And even though the majority asserts that the trial justice was satisfied "that Thornton was totally aware of the ‘magnitude of the undertaking’ of self representation and, as well, the dangers involved in representing himself at trial," I cannot locate where in the trial transcript the trial justice so stated or made any such findings.
38 The defendant notes, and the state agrees, that a harmless-error analysis is inapplicable to alleged violations of the right-to-counsel clause of the Sixth Amendment. See Holloway v. Arkansas, 435 U.S. 475, 489, 98 S. Ct. 1173, 1181,55 L. Ed. 2d 426, 437 (1978); see also State 608 N.W.2d 445, 453 (Iowa 2000) (collecting cases, including United States Supreme Court cases, which hold that violations of a defendant’s Sixth Amendment right to counsel are too fundamental for courts to use a harmless error analysis, and that the harmless-error doctrine presupposes representation by counsel, a factor that is obviously not present in the pro se context). See Perry v. Leeke, 488 U.S. 272, 278-80, 109 S. Ct. 594, 599-600, 102 L. Ed. 2d 624, 632-33 (1989); see also State v. Young, 626 So.2d 655, 657 (Fla. 1993).
39For these reasons, I respectfully disagree with the majority’s conclusion that "[t]his Court [in Spencer) has recently held in a unanimous opinion * * * that a Faretta colloquy, while preferable, is not constitutionally required." Moreover, the United States Supreme Court’s language in Faretta supports the position that the trial justice must engage in at least some colloquy or communication with the defendant concerning the pitfalls of proceeding to trial on a pro se basis. The Court stated "[the defendant] should be made aware of the dangers and disadvantages of self-representation ** ‘~‘~" Faretta 422 U.S. at 835, 95 5. Ct. at 2541, 45 L. Ed. 2d at 581-82. Clearly, under Faretta it is the court that must make the defendant "aware" of the dangers; the trial court cannot rely merely on "the totality of the circumstances." The Supreme Court, in the very next paragraph, proceeds to discuss the colloquy between the court and the defendant that made the defendant "aware" of the dangers of pro se status. An expansion of the State v. Spencer, 783 A.2d 413 (R.I. 2001) holding to rely only on a totality-of-the-circumstances analysis, as the state urges and as the majority concludes, without any type of a colloquy or communication between the court and the defendant as described in Faretta, conflicts with binding United States Supreme Court precedent. In my judgment, the Spencer decision stands for the proposition that there is no "detailed colloquy" or magic litany of questions that a trial justice must ask a defendant before the defendant may proceed pro se. Rather, some sort of an inquiry or communication, together with an examination of the totality of the circumstances, will suffice if the record shows that the defendant knows about the dangers and disadvantages of self-representation when he or she opts for pro se status. But Spencer does not stand for the proposition that no inquiry at all is necessary to comply with Faretta — at least when, as here, we have no equivalent record assurance that defendant was aware of the dangers and disadvantages of self-representation before the court required him to proceed to trial on this basis.
40Indeed, the First Circuit itself has called into doubt the Maynard holding that no colloquy on the record is necessary, stating that
"[a]lthough the total circumstances may be looked to in determining waiver, ~ Maynard v. Meachum, 1 Cir., 1976. 545 F.2d 273, 278, a trial court cannot rely on isolated bits and pieces of evidence. In United States v. Lespier, 558 F.2d, ante, at 630, we said, ‘[W]e think it is advisable in all cases presenting an issue of waiver by conduct for the court to address the defendants directly.’ See, also, United States v. Bailey, D.C.Cir., 1982, 675 F.2d 1292. j227:0~ United States v. Welty, 674 F.2d, ante, at 1 87-93; United States v. Tompkins, 623 F.2d, ante, at 828. Although we have indicated that no set colloquy is required, see Maynard v. Meachum, 545 F.2d, ante, at 277-79, and Fillippini v. Ristaino, 1 Cir., 1978, 585 F.2d 1163, 1166, we nonetheless have consistently maintained that doubts must be resolved in an unrepresented defendant’s favor. * * * The court’s error was not rendered harmless, as the government argues, by the fact that defendant initially had counsel. Prior representation proves nothing. United States v. Welty, 674 F.2d, ante, 185." United States v. ~ 696 F.2d 5, 7 (1st Cir. 1982). (Emphasis added.)
Thus, even the First Circuit now apparently requires some inquiry by the court into defendant’s waiver, comporting with the Faretta mandate that there be record support for defendant’s voluntary, knowing, and intelligent waiver of counsel. See, ~ United States v. Campbell, 874 F.2d 838, 845 (1st Cir. 1989) (stating that the First Circuit "has not interpreted these decisions to mean that the district court must issue a particular warning or make specific findings of fact before it allows the defendant to proceed pro Se," (quoting United States v. Hafen, 726 F.2d 21, 25 (1st Cir. 1984)). (Emphasis added.) Indeed, the First Circuit recently issued an opinion which undeniably contradicts the majority’s claim that the First Circuit requires no inquiry whatsoever by the trial court. In United States v. Woodard, No. 01-2229, 2002 WL 1060000 (1st Cir. May 31, 2002) the court stated
"[t]he trial judge must explicitly make the defendant ‘aware of the dangers and disadvantages of self representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.’ * * * In determining whether there is a competent waiver of the right to counsel, the judge, ‘must investigate as long and as thoroughly as the circumstances of the ease before him demand.’ *** We are guided by the principle that ‘[c]ourts must indulge in every reasonable presumption against waiver of the right to counsel."’ Id. at *11. (Emphasis added.)
Given the First Circuit’s most recent pronouncement on the issue, I do not believe that the majority’s no-colloquy-required position can support a waiver of counsel. Although it is clear that the First Circuit requires no specific list of questions that a trial judge must ask of a defendant attempting to waive his or her right to counsel, it is equally clear that the First Circuit requires some sort of inquiry, one that was totally lacking in this case.
41The record shows that defendant argued forcibly for his individual participation in sidebars, a point well preserved in the record. He also has argued this issue to us on appeal. Moreover, defendant’s objection to standby counsel participating in voir-dire sidebars was not based primarily on his concern over how the jury might perceive these encounters, but rather on his Sixth Amendment right to participate personally in such proceedings. Thus, I respectfully disagree with the suggestion that defendant waived this issue by failing to raise it at trial.
42 Notably, defendant filed a motion in limine seeking to prevent the jury from learning of his incarceration, which the trial justice granted. Therefore, requiring defendant to approach sidebar conferences to conduct jury voir dire only after armed courtroom officials had placed him in handcuffs would have revealed his incarcerated status to the jury and, as a practical matter, rendered nugatory the court’s ruling on the motion in limine. It also should be noted that the trial justice did not "offer" to inform the jurors of defendant’s incarceration; rather, he stated that he would so inform them, regardless of defendant’s objection, stating "[f]ine. [Objection] [s]o noted. But I’m going to ask the question anyway." The prosecutor later stated "[j]udge, I have one concern, and I just want to address it with the [c]ourt before the jury comes in. I’m concerned with the [c]ourt also addressing the issue of incarceration if Mr. Thornton objects to it." Only at the prosecution’s urging did the trial justice ultimately relent and agree to prohibit mentioning defendant’s incarceration. But the majority’s suggestion that the trial justice was bending over backwards to accommodate defendant’s requests is not supported by the record. On the contrary, by forcing defendant to wear handcuffs if he wished to be present at sidebar conferences, by banning him completely from chambers conferences and from sidebars involving juror voir dire and by insisting on informing the jury of defendant’s incarceration until the prosecution dissuaded him from doing so, the trial justice was making it as difficult as possible for defendant to serve effectively as his own attorney.
43Standby counsel’s presence and participation at the voir-dire sidebars did not occur as a result of defendant’s request for standby counsel to do so. As the state concedes, the trial justice prohibited defendant from participating at all in voir-dire sidebars, and therefore defendant had no choice but to have standby counsel participate on his behalf. Moreover, the majority states that "[n]otwithstanding his [defendant’s] affirmative request for the assistance of standby counsel during his trial ** *" defendant asserts violations of his constitutional rights. In fact, the record discloses that the court appointed standby counsel over defendant’s objection. The defendant stated "I don’t wish to proceed pro se or with standby counsel but I guess I must under protest **" (Emphasis added.) The trial justice responded that, over defendant’s objection, "[t]his case is going forward with you representing yourself We’ll appoint backup counsel off the list." Thus, defendant did not affirmatively request the assistance of standby counsel at his trial; rather, the court insisted on it after defendant could not get along with his appointed attorneys.
44Both Faretta and McKaskle support this conclusion. See also United States Time Corp.v. Ann & Hope Factory Outlet, Inc., 98 R.I. 503, 513, 205 A.2d 125, 131 (1964) (holding that "[i]n [these] area[s] [relating to the federal constitution and acts of Congress] the decisions of the United States Supreme Court are binding on us."). The Sixth Amendment right to proceed to trial pro se is a personal tight. The McKaskle Court noted that:"Faretta’s holding was based on the long standing recognition of a right of self-representation * * *Under that Amendment [the Sixth Amendment], it is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ who has the right to confront witnesses, and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’ The Counsel Clause itself, which permits the accused ‘to have the Assistance of Counsel for his defense,’ implies a right in the defendant to conduct his own defense, with assistance at what, after all, is his, not counsel’s trial." McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S. Ct. 944, 949, 79 L. Ed. 2d 122, 130-31 (1984).
Thus, a criminal defendant has a personal and individual right to represent himself at trial. The United States Supreme Court has specifically included voir dire as a stage of the trial at which a pro se defendant has the right to participate. Thus, the defendant’s participation in voir dire (and all the other enumerated stages of the trial) must be personal participation, or else the right to proceed pro se is illusory; that is, a trial justice would be able to order standby counsel to perform other essential trial tasks (e.g., questioning witnesses, arguing to the jury, etc.) for the pro se defendant, thus destroying the right to proceed pro se at all.
45The United States Supreme Court has held that a court may not usually force a defendant to appear in court in shackles. McKaskle, 465 U.S. at 178, 104 S. Ct. at 951, 79 L. Ed. 2d at 133 (citing Estelle v. Williams, 425 U.S. 501, 504-05, 96 5. Ct. 1691, 1693, 48 L. Ed. 2d 126, 131 (1976)). The state argues that the trial justice’s concerns were well founded in this case because of defendant’s "obstreperous" behavior. It should be noted, however, that this "obstreperous" behavior, as the state phrased it, was limited to "interrupting the court and making sarcastic or otherwise disrespectful comments." As an example, the state points to parts of the transcript where defendant "threatened" to request a dictionary to decipher "everything that I don’t understand." The record is devoid of any evidence, however, that defendant presented an imminent security threat to courtroom personnel. Indeed, he was not handcuffed or restrained at counsel table. The trial justice could have addressed any underlying security concerns in less restrictive ways that did not stigmatize the defendant as a dangerous criminal by forcing him to don handcuffs in front of the jury as a condition of participating in voir-dire sidebars of individual jurors. For example, if there were guards who stood behind him at the counsel table during the trial, why could they not accompany him to the sidebar conferences? In fact, the state cites several cases in which court officers were assigned to accompany defendants to sidebar conferences without resorting to handcuffs. See People v. Briggs, 728 N.Y.S.2d 763, 765 (N.Y. App. Div. 2001); People v. Vargas, 668 N.E.2d 879, 885 (N.Y. 1996). Although the majority asserts that the trial justice "impose[d] what he believed to be the most unobtrusive measure to avoid any dangerous disruption of voir dire * * s," there is no record support for such an assertion. Moreover, why did any individual voir dire have to occur when the rest of the jury was still present in the courtroom? At oral argument the state contended that the particular courtroom where this trial took place was one of the smallest in the state, that it had an exit door directly behind the bench, and that, therefore, the trial justice’s security concerns were justified. Even assuming these circumstances were accurate (they do not appear in the record), I do not believe that they can justify violating defendant’s Sixth Amendment rights. The alleged inadequacy of the state’s facilities to allow for a defendant to exercise his or her constitutional rights cannot excuse the state’s denial of such rights. For this Court to endorse such a position impermissibly would render constitutional rights dependent upon whether or not the state possesses or provides facilities that are adequate to allow for defendants to exercise such rights. Such a position is untenable. Moreover, the absence of any requirement for the placement of handcuffs on defendant while he was sitting at the counsel table belies the necessity for such a requirement during sidebar conferences.
46This telling exchange occurred during the chambers conference between the court and standby counsel after questioning of the juror:
"MR. AMALFATANO: Knowing that if I brought this to my client, he would have an absolute objection to this gentleman to continue to sit. I mean, I would naturally go out and discuss it with him, but —
"COURT: No. I think we’ve gone far enough. [to juror]
You are excused."
47The state asserts on appeal that, because the trial justice told defendant after the fact about the results of these conferences, and that most of the rulings favored him, the trial justice did not violate defendant’s rights. But a p~ se defendant possesses the right to participate in such substantive conferences with the court, "to argue points of law * * * and address the court and the jury at appropriate points in the trial." McKaskle, 465 U.S. at 174, 104 S. Ct. at 949, 79 L. Ed. 2d at 131. Moreover, regardless of the merits of the state’s argument, it appears that no one ever made defendant aware of either the final chambers conference or its outcome.
48 In addition, the majority suggests, as does the state, that the outcome of these conferences in some way must guide our analysis. The majority argues that many of the issues were housekeeping matters, or matters that were wholly subject to the discretion of the trial justice. Although this may be true, the argument misses the mark. Standby counsel and a pro se defendant are not interchangeable, and standby counsel cannot replace, at the trial justice’s discretion, the pro se litigant. The defendant, as his own attorney, has the constitutional right to participate in person at these conferences before the trial justice reaches any decision on the matters discussed during the conference. The outcome of that decision — for or against the defendant — is irrelevant to the exercise of his Sixth Amendment right to be heard as his own counsel.
49The state points out that after the chambers conferences (and after the trial justice had made his decision on whatever issues were raised during these conferences), the trial justice allowed defendant to address the court in the courtroom. In my judgment, this was insufficient to protect the defendant’s McKaskle tights because, by then, the results of the conference were a fait accompli and defendant’s absence put him at a disadvantage because he was unable to hear and respond to the various arguments and positions taken by the participants in the conference. Moreover, defendant refers to at least one chambers conference that no one ever informed him took place, much less its outcome.