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The New Hampshire Supreme Court strongly prefers that trial court judges engage in a colloquy with a defendant who wishes to waive his or her right to counsel, but it has not required that any precise language or inquiries be employed so long as, by the totality of circumstances, the record reflects that the defendant was aware of the dangers and disadvantages of self-representation and made a knowing, intelligent, and voluntary waiver of his right to counsel.
During the latter half of 2015, defendant Paulson Papillon and his associates, Adrien Stillwell, Nathaniel Smith, and Michael Younge, sold drugs in and around Manchester. The victim, M.P., regularly purchased drugs from Papillon, Stillwell, Smith, and Younge. On October 21, 2015, a confidential informant and M.P. each purchased drugs from Papillon at a Manchester hotel. That same day Papillon was arrested and jailed after the hotel was searched, and Papillon came to believe that M.P. was the “snitch” responsible for his arrest. Papillon was released on bail on October 26, and over the next several days, he urged Stillwell, Smith, and Younge to kill M.P. for his suspected role in Papillon's arrest, offering them money and drugs to do so and emphasizing that it needed to happen “before he had court.” On October 31, the four met at one of the trap houses. Papillon once again pressed the three men to kill M.P., saying it should happen that night. To facilitate this plan, Papillon provided a gun — a .357 — and Halloween costumes, which he intended Stillwell, Smith, and Younge to wear as disguises. Deciding against the costumes, Stillwell, Smith, and Younge left to find and kill M.P. Stillwell and Smith were both armed — Stillwell with the .357 that Papillon had provided. Meanwhile, Papillon went to a casino in Connecticut so that its security cameras could prove he was in another state when M.P. died. However, Stillwell, Smith, and Younge decided “it wasn't a good opportunity” to kill M.P. after they saw him in his residence that night. Papillon was upset when he discovered that M.P. was still alive after Halloween. He reiterated that he “needed it done” before he had to appear in court and said if Stillwell, Smith, and Younge “couldn't do it,” he would have someone else kill M.P. On November 3, Smith, Stillwell and Younge eventually managed to corner M.P. in his apartment building. M.P. was shot twice and died at approximately 6:20 p.m. Papillon “made sure he wasn't there” when M.P. was killed, having had an acquaintance drive him to Massachusetts earlier that day. After fleeing the scene, Stillwell and Younge returned to the apartment where they had met Papillon. Papillon told A.D. to try calling M.P., feigning the need to set up a delivery for some drugs that she owed M.P. At approximately 8:00 p.m., Papillon, who by that time had returned to the trap house, sent Smith a text message that there was a large quantity of drugs waiting for him there. Smith arrived shortly thereafter. Papillon was happy to hear that M.P. was dead, started handing out drugs and money to his three associates, and said that they could “get back to business” now that the suspected informant was dead. However, Papillon became upset when Younge told him that the convenience store's security camera would have them on video before the murder, and the four of them discussed going to Connecticut the next day “to get out of town.” Thus, on November 4, Papillon, Stillwell, and Younge drove to Connecticut in a rented car. Along the way, Younge discarded the clothes he had worn the day before, and Stillwell and Younge discarded their cell phones. Papillon paid for Stillwell's and Younge's expenses at a casino and strip club in Connecticut. After a few days, the defendant returned to New Hampshire once he believed the investigation into M.P.'s death had cooled off.
On November 9, Papillon was arrested on charges unrelated to M.P.'s murder. While incarcerated, he shared unpublicized details about M.P.'s death with L.M., a fellow inmate. Papillon told L.M. that he “knew it was done” when he received a phone call after M.P.'s death, and that he “had to have it done” because M.P. was going to inform on him “for some drugs.” Papillon also communicated frequently with his sister via recorded phone calls from the prison to discuss the ongoing murder investigation. Stillwell and Smith had also been incarcerated in November on charges unrelated to M.P.'s murder, and Younge turned himself in on November 19 after his photograph was released in connection with M.P.'s death. After two days of trial, defense counsel informed the trial court that Papillon wished to represent himself. After conducting a colloquy with Papillon as well as explaining the risks involved and appointing his defense counsel as standby counsel, the trial court allowed Papillon to represent himself. Following a jury trial, Papillon was convicted of conspiracy to commit murder and as an accomplice to reckless second-degree murder.
Did the trial court err in permitting Papillon to represent himself for lack of evidence that he knowingly, intelligently, and voluntarily waived his right to counsel?
The record shows that when Papillon manifested that he wants to represent himself, the trial court conducted a colloquy with him, first inquiring into the reasons why he no longer wished to be represented by his trial counsel. Papillon, who had already drafted motions on his own behalf, articulated his perceived shortcomings of counsel, explaining that he disagreed with their trial strategy and had been “bumping heads [with them] for a while.” The trial court noted that it had recognized this tension, but stressed that Papillon would be at a disadvantage in proceeding without his attorneys, particularly in light of their criminal defense experience, the “severity of [his] charges,” and the “significant legal issues” that had yet to be addressed at trial. The trial court informed Papillon that he would be responsible for dealing with such legal issues, cross-examining witnesses, “presenting [his] case” after the State had rested, making and responding to objections, and delivering closing arguments. The trial court also confirmed that Papillon was not then under the influence of drugs or alcohol. Further, with Papillon 's approval, the trial court appointed his defense attorneys as standby counsel. The court thoroughly explained standby counsel's role, emphasizing that Papillon may seek their assistance on questions of law or courtroom procedure, but that standby counsel were under no obligation to affirmatively offer advice or direction going forward. Throughout the trial court's explanations, Papillon continued to unquestionably reassert his desire to represent himself and express his understanding of the information and cautionary warnings he received. Verily, this showed that the trial court made sure Papillon was informed of the dangers and disadvantages of self-representation.
Papillon further argued that the trial court failed to inquire into his “ability to represent himself,” specifically that the trial court “made no inquiry into [his] education, training, legal experience, or even mental health.” In essence, he argued that he was incompetent and therefore could not have waived his right to counsel. However, contrary to the defendant's assertion, “ ‘a criminal defendant's ability to represent himself has no bearing upon his competence to choose self-representation.’ ” While it is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts, a defendant has a constitutional right to represent himself, whether or not that representation will be to his detriment.