Voluntary waiver of counsel established through conduct.

Byline: Barry Bridges

The Rhode Island Supreme Court has found that a criminal defendant's continuous failure to secure legal representation, in spite of his numerous statements to hearing judges that he had the financial means to do so, constituted a "voluntary, knowing and intelligent" waiver of his constitutional right to counsel.

Although defendant Mario Souto initially was represented after he was charged with the assault of a police officer, resisting arrest and disorderly conduct, he later agreed to that attorney's withdrawal. He then let over a year pass without retaining new counsel, even though two Superior Court judges repeatedly advised him to do so.

With the court's patience running thin, Souto ultimately was required to represent himself after Superior Court Judge Netti C. Vogel determined that he had waived his constitutional right to counsel.

After being convicted of the charges against him, Souto claimed on appeal that he was wrongly denied his constitutional right to counsel.

But the Supreme Court found no error in Vogel's handling of the issue.

"[D]efendant was generously granted more than ten continuances over the course of fourteen months, yet he failed to procure representation, notwithstanding his many assurances to the court that he would hire an attorney," Chief Justice Paul A. Suttell wrote.

The court was also unmoved by Souto's assertion that an independent inquiry should have been made as to his indigent status prior to trial, in light of the fact that the defendant had "continuously maintained ... that he had funds to hire an attorney."

Finding no fault in Vogel's conclusion that Souto was trying to delay his trial by manipulating the system, Suttell noted that "it is clear that '[t]he defendant's actions, rather than his words, demonstrate that he waived his right to counsel.'"

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"[W]e give deference to the trial justice's finding that defendant intentionally manipulated the proceedings by 'stalling trial perhaps indefinitely or at least until [he] totally succeeded in wearing down the resolve of the State and its witnesses."

Chief Justice Paul A. Suttell

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With a valid waiver thus established, Souto's conviction on all counts was affirmed.

The 23-page decision is State v. Souto, Lawyers Weekly No. 60-069-19. The full text of the ruling can be found here.

Virginia M. McGinn was on brief for the state in Souto's appeal. Responding to the holding, Attorney General Peter F. Neronha said the office...

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