                  IN THE SUPREME COURT OF TENNESSEE
                              AT JACKSON
                                November 5, 2009 Session

                 STATE OF TENNESSEE v. TOMMY HOLMES

              Appeal by Permission from the Court of Criminal Appeals
                         Criminal Court for Shelby County
                   No. 02-02082     James C. Beasley, Jr., Judge


                No. W2008-00759-SC-R11-CD - Filed January 12, 2010


We granted permission to appeal in this case to address whether the trial court erred in ruling
that an indigent defendant forfeited his right to counsel at trial by telling his appointed
lawyer, “I know how to get rid of you,” and, at a subsequent meeting, physically assaulting
his lawyer by striking the lawyer’s eyeglasses with his finger. The defendant was tried by
a jury pro se and convicted of aggravated rape. We hold that, under the facts and
circumstances of this case, the trial court committed reversible error in ruling that the
defendant had forfeited his right to appointed counsel at trial. While the defendant’s physical
attack on his lawyer was serious misconduct, it did not rise to the level of “extremely serious
misconduct” sufficient to warrant an immediate forfeiture. State v. Carruthers, 35 S.W.3d
516, 548 (Tenn. 2000). Because the defendant was erroneously denied his fundamental
constitutional right to counsel, we must reverse his conviction and remand this matter for
appointment of new counsel and a new trial. The judgment of the Court of Criminal Appeals
is reversed.

           Tenn. R. App. P. 11; Judgment of the Court of Criminal Appeals
                    Reversed; Case Remanded to the Trial Court

C ORNELIA A. C LARK, J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
C.J., G ARY R. W ADE, W ILLIAM C. K OCH, J R., and S HARON G. L EE, JJ., joined.

Claiborne H. Ferguson, Memphis, Tennessee, for the appellant, Tommy Holmes.

Robert E. Cooper, Jr., Attorney General & Reporter; Michael E. Moore, Solicitor General;
John H. Bledsoe, Senior Counsel; David H. Findley, Senior Counsel; William L. Gibbons,
District Attorney General; and Amy Weirich, Assistant District Attorney General, for the
appellee, the State of Tennessee.
                                              OPINION

                             Factual and Procedural Background 1

       The appellant, Tommy Holmes (“Defendant”), was indicted for attempted murder,
aggravated rape, intimidation of a witness, and aggravated assault, and an assistant public
defender (“Counsel”) was appointed to represent him. In March 2003, shortly before one of
Defendant’s trials, an “impromptu hearing” was held with Defendant present. During this
“hearing,” Counsel sought permission to withdraw from representing Defendant on the basis
of Defendant’s behavior toward him. Counsel told the trial court,

               On two occasions, Your Honor, including this morning–the reason I had
        [the defendant] brought up was so I could visit with him up here. He has
        threatened physical violence in the past at our last meeting. Today he put
        hands on me and I had to leave. He punched me in the face with his finger,
        knocked my glasses off. And I don’t believe that I can represent [the
        defendant]; so I’m asking the Court to relieve me.

State v. Holmes, No. W2006-00236-CCA-R3-CD, 2007 WL 1651876, at *3 (Tenn. Crim.
App. June 7, 2007). The trial court permitted Counsel to withdraw without allowing anyone
else to testify about the matter, concluding there was no need “to have a formal hearing in
this regard.” Id. The trial court then determined sua sponte that Defendant had forfeited his
right to appointed counsel and informed Defendant that, unless he or his family hired a
lawyer, Defendant would be representing himself at trial. Counsel turned over to Defendant
the discovery materials he had received. The trial court denied Defendant’s subsequent
written motion for the appointment of counsel.

       At a later hearing on pretrial motions, Defendant repeated his request for a lawyer and
asserted that Counsel’s report about the attack was false. The trial court again denied
Defendant’s request for a lawyer and again refused to conduct a hearing on the issue of what
had occurred between Defendant and Counsel.




        1
         This matter comes to us upon a second direct appeal, the first direct appeal having resulted in a
remand for an evidentiary hearing. State v. Holmes, No. W2006-00236-CCA-R3-CD, 2007 WL 1651876,
at *1 (Tenn. Crim. App. June 7, 2007). Because the record before us is limited to the hearing on remand,
we have gleaned some of the factual and procedural background of this case from the Court of Criminal
Appeals’ decision on the first appeal.

                                                   -2-
       Defendant proceeded pro se to his jury trial on the aggravated rape charge, but the trial
court appointed elbow counsel to assist Defendant in conducting his defense.2 The jury
convicted Defendant of aggravated rape, a Class A felony.

       On direct appeal, the Court of Criminal Appeals concluded that the trial court had not
followed the correct procedures in determining that Defendant had forfeited his right to
counsel. Accordingly, the intermediate appellate court remanded the matter to the trial court
“for an evidentiary hearing as to whether [Defendant] forfeited his right to counsel.” Id. at
*10.

        On remand, a different trial judge conducted the required hearing because the original
trial judge had retired in the interim. At the hearing, Counsel testified that, as of March
2008, he had been a licensed attorney in Tennessee for twenty-two years. He joined the
Public Defender’s office in the spring of 2001 after having been in a general private practice.
He was appointed to defend Defendant against charges including attempted murder,
aggravated rape, intimidation of a witness, and aggravated assault. Defendant was in custody
during the time Counsel represented him.

        Counsel stated that he did not have any problems with Defendant “at first” but, at their
penultimate meeting, Defendant told Counsel, “I know how to get rid of you.” Defendant
made this statement while his aggravated rape case was pending trial. Counsel’s next
meeting with Defendant occurred about two weeks before Defendant’s trial date. Counsel
testified about that meeting:

                We were–we were talking back in [an interview room in the
       courthouse] and [Defendant] asked me well do you believe I’m innocent. And
       I said it really doesn’t matter what I believe. He jumped up, stood over me and
       said you’re going to do what I tell you to do, pushed his finger at me and
       knocked my glasses, not all the way off but askew.

Counsel stated that he and Defendant were the only persons in the interview room. The door
to the room was closed. Defendant had not been handcuffed during their meeting.




       2
           Defendant’s trial was held in September 2005.

                                                    -3-
        Counsel testified that, after Defendant’s actions, he “folded [his] books and left.”
Counsel reported the incident to the trial court “[i]mmediately.” Counsel testified that he told
the trial court “what happened and [the judge] brought [Defendant] out and essentially issued
a ruling on it.” When asked if Defendant’s actions frightened him, Counsel responded,
“Well, yeah, I guess so. I mean, it was astounding. I’ve never had that happen before or
since.” Counsel explained that he had represented “hundreds” of criminal defendants.

        On cross-examination, Counsel acknowledged that, as he left his final meeting with
Defendant, Defendant did not attempt to “come after” him or “take any swings” at him.
Defendant “used an expletive” as Counsel was leaving but Counsel did not remember what
it was. Counsel acknowledged that he did not report Defendant’s verbal warning about
getting “rid of” him. Counsel explained that this statement was made in “a threatening
manner,” but he did not know whether Defendant was referring to getting Counsel removed
as his attorney, or something else. Counsel did not request that Defendant be handcuffed at
their next (last) meeting.

       With respect to the physical confrontation, Counsel explained that Defendant had not
made contact with his face, but rather hit his glasses at the place where the earpiece is joined
with the lens’ frame. The contact with Counsel’s glasses “hurt” and broke the frames. The
glasses did not fall off of Counsel’s face, however.

        On questioning by the trial court, Counsel explained that, after he was permitted to
withdraw from representing Defendant, elbow counsel was appointed to Defendant for his
trial.3

        Shelby County Sheriff’s Deputy James C. Lafferty testified that he was the court
bailiff on the day Defendant struck Counsel’s glasses. He let Counsel in to and out of the
interview room where Counsel met with Defendant. Deputy Lafferty testified that, as
Counsel left the interview room, he appeared “kind of red, flustered-looking face, fixing his
glasses saying let me out of here.” Counsel did not appear to have any marks on his face, but
appeared to be upset, nervous, and frustrated. Deputy Lafferty testified that Counsel told him
that Defendant had “slapped” him. Deputy Lafferty did not witness the altercation, however.



        3
         The lawyer representing Defendant on this appeal was appointed “elbow counsel” for Defendant’s
aggravated rape trial. This Court has clarified that an attorney who serves as elbow counsel “functions in
a purely advisory role, without actively participating in the trial.” State v. Small, 988 S.W.2d 671, 672 n.1
(Tenn. 1999). Thus, a defendant appointed such counsel “may consult counsel for guidance and advice, but
otherwise handles the defense of the case on his or her own.” Id. Upon its determination that a defendant
has waived his right to counsel, a trial court may, in its discretion, appoint advisory (or elbow) counsel. Id.
at 675.

                                                     -4-
       Deputy Lafferty let Counsel into the courtroom and then returned to Defendant.
Deputy Lafferty stated that, when he saw Defendant, Defendant “was sitting down in the
witness room.” Defendant was not yelling at Counsel and was “fine” when Deputy Lafferty
took him to the “cell tank” and “secured him.”

       Deputy Lafferty asked Counsel if he wanted to charge Defendant. Counsel declined,
saying that Defendant “was in too much deep water as it [was].” Accordingly, “[n]othing
was ever written on” the incident.

        Defendant was present at the hearing but did not testify.

        After hearing the testimony, the trial court ruled as follows:

                The proof that I have before me is [Counsel] testified. [Counsel] has
        been a lawyer practicing in these courts for a number of years. He testified
        that he was assigned as a public defender and worked on a daily basis in
        Division 5 where [Defendant’s] case was set. He testified that on a prior
        occasion some couple of weeks prior to this [Defendant] had made the
        statement to him in a threatening manner as [Counsel] put it, “I know how to
        get rid of you.”

               Nothing else happened that particular day but he[,] [Counsel][,] testified
        that in his opinion, taken in light of everything else that was going on in
        Shelby County, more particularly the Tony Carruthers trial and the Robert
        Friedman trial, he took that as a serious threat from [Defendant] and it
        somewhat concerned him.4

               However, again to [Counsel’s] credibility, he testified he did not request
        that [Defendant] be shackled or cuffed when he went back to talk to him two
        weeks before the trial was to begin. And that [Defendant] then became
        aggressive in the back, jumped up, said you’re going to do what I tell you to


        4
          Tony Carruthers was convicted in the spring of 1996 for three capital murders he committed in
1994. State v. Carruthers, 35 S.W.3d 516, 523-24, 545 (Tenn. 2000). Carruthers’ trial was preceded by
multiple changes of counsel and Carruthers’ death threats against two of his appointed lawyers. Id. at 535,
542. The lawyer who represented Defendant in this case also represented Carruthers for several months and
was co-counsel with one of the lawyers that Carruthers threatened; he was allowed to withdraw prior to
Carruthers’ trial in part because of repeated “[p]ersonal vilification” by Carruthers. Id. at 545. Memphis
attorney Robert Friedman was shot and killed on June 21, 2002, by a disgruntled client he had represented
in a divorce case. State v. Noel, No. W2005-00160-CCA-R3-CD, 2006 WL 2729487, at *1, *6 (Tenn. Crim.
App. Sept. 25, 2006).

                                                   -5-
       do and then poked him in the face with his finger and knocked his glasses
       askew, and [Counsel] then went out and reported that incident to [the trial
       judge].

              [Counsel] has testified to those allegations. Officer Lafferty testified
       to [Counsel’s] appearance and his attitude after he heard a commotion in the
       back. When he opened the door, [Counsel] came right past him and walked
       out and that he appeared to be flustered. His face was red and he was
       adjusting his glasses as he walked past. And that’s the proof that I have.

              And there’s nothing to the contrary. There’s nothing to counter that.
       I have nothing other than the testimony of [Counsel] as to what occurred in
       that room.

             The Court finds as a result that [Defendant] had no right. There was no
       provocation. There was no indication of any animosity. There was no
       provocation or no indication of anything other than [Defendant] acting in an
       aggressive fashion and in an aggressive manner striking [Counsel].

              I’m not arguing, nor am I stating for the record that he punched him
       with his fist or even that he slapped him with an open hand. He poked his
       finger in his face and hit his glasses and knocked his glasses off. In this
       Court’s opinion no attorney should be subjected to that kind of activity by a
       defendant who they are representing, whether in the courtroom, in the jail
       holding tank or anywhere else. No attorney who has been asked and appointed
       to represent an indigent defendant should be subjected to threats, should be
       subjected to physical contact or physical abuse in any form or fashion by a
       defendant.

               No attorney should be required to maintain and stay on a case under
       those circumstances so I find that it was very justifiable that [the trial court]
       relieved [Counsel] of representation at that particular time. But I’m also going
       to find that as a result of his physical action against [Counsel], that
       [Defendant] forfeited his right to be represented by appointed counsel and as
       a result was required to represent himself in the trial of these cases.

       Defendant appealed the trial court’s ruling. In a split decision, the majority of the
Court of Criminal Appeals affirmed the trial court on the basis that Defendant’s “physical
assault against counsel, combined with his earlier verbal threat, qualifies as the sort of
extremely serious misconduct sufficient to warrant the trial court’s finding that [Defendant]


                                              -6-
forfeited his right to the assistance of counsel.” State v. Holmes, No. W2008-00759-CCA-
R3-CD, 2009 WL 536930, at *5 (Tenn. Crim. App. Mar. 2, 2009). The dissenting judge on
the panel acknowledged that “[o]f course a lawyer should not be subjected to abusive or
offensive physical contact from a client,” id. at *6 (Thomas, J., dissenting), but disagreed that
Defendant’s conduct “rose to the level of extremely serious misconduct [sufficient] to
warrant forfeiture of his right to counsel.” Id.

        We granted Defendant’s application for permission to appeal.

                                           Standard of Review

        A trial court’s determination after a hearing that a defendant has behaved in such a
manner as to forfeit his constitutional right to legal counsel at trial is a mixed question of law
and fact. See Abdur’Rahman v. Bredesen, 181 S.W.3d 292, 305 (Tenn. 2005) (“A
constitutional claim that is resolved after an evidentiary hearing generally presents a mixed
question of law and fact.”). This Court reviews mixed questions of law and fact de novo,
accompanied by a presumption that the trial court’s findings of fact are correct.5 Id.; see also
United States v. Goldberg, 67 F.3d 1092, 1097 (3rd Cir. 1995) (reviewing de novo the
defendant’s claim that the trial court erroneously forced him to proceed to trial pro se
following death threats to his appointed lawyer); Commonwealth v. Means, 907 N.E.2d 646,
655 (Mass. 2009) (“Factual findings related to the loss of the right to counsel, such as
voluntary waiver, are entitled to substantial deference, but we review claims of violations of
the right to counsel de novo, making an ‘independent determination of the correctness of the
judge’s application of constitutional principle to the facts found.’”) (quoting Commonwealth
v. Currie, 448 N.E.2d 740, 745 (Mass. 1983)).

                                                   Analysis

       Both our federal and state constitutions guarantee to criminal defendants the right to
legal counsel at trial. U. S. Const. Amend. VI; Tenn. Const. art. I, § 9; Gideon v.
Wainwright, 372 U.S. 335, 339 (1963); State v. White, 114 S.W.3d 469, 475 (Tenn. 2003);
Poindexter v. State, 191 S.W.2d 445, 445 (Tenn. 1946). The United States Supreme Court
has long recognized that this right is one of the constitutional safeguards “deemed necessary


        5
         The State asserts in its brief to this Court that we should review the trial court’s ruling of forfeiture
for an abuse of discretion, relying on State v. Huskey, 82 S.W.3d 297, 305 (Tenn. Crim. App. 2002), and
State v. Rubio, 746 S.W.2d 732, 737 (Tenn. Crim. App. 1987). We disagree. Huskey dealt with the trial
court’s appointment of new counsel to represent the defendant on his retrial, to which the defendant objected.
82 S.W.3d at 302-04. Rubio dealt with the trial court’s refusal to appoint new counsel to represent the
defendant upon the defendant’s complaints about his appointed lawyer. 746 S.W.2d at 732-35. In neither
of these cases was the defendant deprived entirely of his constitutional right to counsel at trial.

                                                       -7-
to insure fundamental human rights of life and liberty.” Johnson v. Zerbst, 304 U.S. 458, 462
(1938). Indeed, the high court has declared that “[t]he Sixth Amendment [right to counsel]
stands as a constant admonition that if the constitutional safeguards it provides be lost, justice
will not ‘still be done.’” Id.; see also United States v. Cronic, 466 U.S. 648, 654 (1984)
(“‘Of all the rights that an accused person has, the right to be represented by counsel is by
far the most pervasive for it affects his ability to assert any other rights he may have.’”)
(quoting Walter V. Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1,
8 (1956)). Accordingly, indigent defendants are entitled to the appointment of counsel at no
cost to themselves. Gideon, 372 U.S. at 339-40; State v. Carruthers, 35 S.W.3d 516, 546
(Tenn. 2000); see also Tenn. R. Crim. P. 44(a). Moreover, the wrongful deprivation of a
criminal defendant’s right to counsel is a structural error which so contaminates the
proceeding that reversal is mandated. See United States v. Gonzalez-Lopez, 548 U.S. 140,
148-51 (2006); Penson v. Ohio, 488 U.S. 75, 88-89 (1988); Chapman v. California, 386 U.S.
18, 23 & n.8 (1967); State v. Rodriguez, 254 S.W.3d 361, 371 (Tenn. 2008).

        Although the right to counsel at trial is fundamental, it is not without limits. A
criminal defendant may be deemed to have forfeited this right when he or she engages in
“extremely serious misconduct,” Carruthers, 35 S.W.3d at 548 (citing Goldberg, 67 F.3d at
1102), or engages in an “egregious manipulation” of the right to counsel “so as to delay,
disrupt, or prevent the orderly administration of justice.” Id. at 550. Whether a defendant
engages in some form of conduct that justifies a ruling of forfeiture may generally be
determined only after an evidentiary hearing at which the defendant is present and permitted
to testify.6 Means, 907 N.E.2d at 662; King v. Superior Court, 132 Cal. Rptr. 2d 585, 598-99
(Cal. Ct. App. 2003). The State bears the burden of establishing that the defendant
committed such actions as to justify a forfeiture. See Brewer v. Williams, 430 U.S. 387, 404
(1977). Factors relevant to the trial court’s consideration include (1) whether the defendant
has had more than one appointed counsel; (2) the stage of the proceedings, with forfeiture
“rarely . . . applied to deny a defendant representation during trial”; (3) violence or threats
of violence against appointed counsel; and (4) measures short of forfeiture have been or will
be unavailing. Means, 907 N.E.2d at 659-661.

       This Court has previously addressed the issue of forfeiture of counsel in only one case.
In Carruthers, the defendant was facing three counts of first degree murder. His initially
retained lawyer was permitted to withdraw because of a conflict of interest. New counsel
Larry Nance was then appointed. When the State filed notice of its intent to seek the death
penalty, an additional attorney was appointed. Several months later, the defendant filed a
motion for substitution of counsel. Mr. Nance was subsequently permitted to withdraw


        6
         An exception to this general rule may obtain where the defendant engages in the conduct at issue
in open court. See, e.g., United States v. Leggett, 162 F.3d 237, 250 (3rd Cir. 1998).

                                                  -8-
“because of ‘personal physical threats’ made by [the defendant] that escalated to the point
that Nance did not ‘feel comfortable or safe, personally safe, in continuing to represent [the
defendant].’” Carruthers, 35 S.W.3d at 535. The trial judge appointed a new lawyer, and
later authorized a third lawyer to assist on the case as an investigator.

        The three lawyers representing the defendant were subsequently permitted to
withdraw, and the trial court appointed two new lawyers, Mr. Massey and Counsel. Several
months later, Mr. Massey requested permission to withdraw on the grounds that the
defendant was threatening him and that Mr. Massey “‘fear[ed] for his safety and those around
him.’” Id. at 538. The trial court denied Mr. Massey’s motion, characterizing the
defendant’s actions as “part of an overall ploy on his part to delay the case forever until
something happens that prevents it from being tried.” Id. at 539. A few weeks later, Mr.
Massey renewed his motion to withdraw, explaining to the trial court that he “had continued
to receive [from the defendant] threatening letters at his home and was concerned for his
daughter’s safety because [the defendant] had described the car she drove.” Id. at 540. The
trial court again denied Mr. Massey’s motion but informed the defendant that he had the
choice between making things work with Mr. Massey and Counsel, or representing himself.
Mr. Massey sought and obtained an interlocutory appeal, and the Court of Criminal Appeals
allowed Mr. Massey to withdraw from the case. The trial court subsequently allowed
Counsel to withdraw because the defendant “apparently had no confidence or trust in [him]
and because [the defendant] was launching personal, verbal attacks upon” him. Id. at 545.
The defendant eventually represented himself at trial over his repeated objections and
requests for counsel. The jury convicted the defendant of three counts of first degree murder.
Id. at 523.

        On appeal, this Court recognized the fundamental state and federal constitutional
rights to the assistance of counsel at trial. Id. at 546. We also recognized that “the right to
counsel is not a license to abuse the dignity of the court or to frustrate orderly proceedings.”
Id. Thus, “the right to counsel can be implicitly waived or forfeited if a defendant
manipulates, abuses, or utilizes the right to delay or disrupt a trial.” Id. at 547.

        In Carruthers, we distinguished between an implicit waiver of the right and a
forfeiture of the right. On the one hand, we noted that,

       [o]rdinarily, waiver of the right to counsel must be voluntary, knowing, and
       intelligent. Typically, such a waiver occurs only after the trial judge advises
       a defendant of the dangers and disadvantages of self-representation and
       determines that the defendant “knows what he is doing and his choice is made
       with eyes open.”



                                              -9-
Id. at 546 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942))
(citations omitted). In contrast to this type of affirmative waiver, we concluded that “an
implicit waiver may appropriately be found where, as here, the record reflects that the trial
court advises the defendant [that] the right to counsel will be lost if the misconduct persists
and generally explains the risks associated with self-representation.” Id. at 549 (emphasis
added). That is, compared to an affirmative waiver expressed through words, an implicit
waiver is presumed from the defendant’s conduct after he has been made aware that his
continued misbehavior will result in the dangers and disadvantages of proceeding pro se.

        On the other hand, we determined that “forfeiture results regardless of the defendant’s
intent to relinquish the right and irrespective of the defendant’s knowledge of the right.” Id.
at 548. Accordingly, we recognized that a defendant may be found to have forfeited his right
to counsel where he or she “engages in extremely serious misconduct . . . even though the
defendant was not warned of the potential consequences of his or her actions or the risks
associated with self-representation.” Id.

        As to the defendant in Carruthers, this Court upheld the trial court’s refusal to appoint
yet more lawyers after the withdrawal of the seventh attorney on the dual bases that the
defendant had both implicitly waived his right to counsel and had forfeited the right. With
respect to waiver, we held that the defendant “implicitly waived his right to counsel, because,
after being warned by the trial court that he would lose his attorney if his misconduct
continued, [the defendant] persisted in his misconduct.” Id. at 549. With respect to
forfeiture, we held as follows:

       [The defendant] repeatedly and unreasonably demanded that his appointed
       counsel withdraw and that new counsel be appointed. [The defendant’s]
       demands escalated as his scheduled trial dates drew near. As the trial court
       recognized, the “ploy” to delay the trial became increasingly apparent with
       each new set of attorneys. In addition, [the defendant’s] conduct degenerated
       and his outrageous allegations and threats escalated markedly with each new
       set of attorneys. As the trial court emphasized, [the defendant] was the author
       of his own predicament and sabotaged his relationship with each successive
       attorney with the obvious goal of delaying and disrupting the orderly trial of
       the case. Under these circumstances, the trial court was fully justified in
       concluding that [the defendant] had forfeited his right to counsel.

Id. at 550.7


       7
           Similarly, in State v. Willis, No. E2008-01105-CCA-R9-D[sic]D, 2009 WL 1929161, at *1 (Tenn.
                                                                                         (continued...)

                                                  -10-
        In Carruthers, we described the difference between an implicit waiver and a forfeiture
as “slight,” id. at 549, and observed that “many courts considering this issue do not
distinguish between the two concepts and have used the terms implicit waiver and forfeiture
interchangeably.” Id. at 548. Under the facts and circumstances of the Carruthers case, our
description was apt. Under the facts and circumstances of the instant case, however, the
difference is much more pronounced. Applying the Carruthers distinction between implicit
waiver and forfeiture to this case, we cannot conclude that Defendant implicitly waived his
right to counsel. The record is clear that the trial court never warned him about his conduct
or the consequences of failing to conform his conduct to acceptable norms. On the contrary,
Defendant was brought before the trial court only on his original attorney’s oral request to
withdraw. The judge sua sponte and immediately refused to appoint new counsel, without
warning and without even giving Defendant the opportunity to be heard on his objection.
Defendant had no pattern of abusive behavior or conduct aimed at delaying the proceedings.
Thus, Defendant’s deprivation of counsel in this case is properly analyzed as a forfeiture.
Means, 907 N.E.2d at 659 (“The sanction of forfeiture recognizes that a defendant may
engage in misconduct that is so serious that it may justify the loss of his right to counsel even
if he was not warned that his conduct may have that consequence.”).

       Carruthers was an extreme case, involving a significant pattern of verbal threats and
manipulation of the system resulting in the ultimate withdrawal of seven lawyers and
deliberate delay of the judicial process, all occasioned by the defendant. Carruthers does not,
however, address the situation where, as here, there is a single incident involving a single
attorney but including a physical assault and an ambiguous verbal threat. In determining
whether such conduct is sufficient to amount to forfeiture of the fundamental constitutional
right to counsel, we look to other courts that have considered assaultive conduct in a
comparable context.

        For instance, in United States v. Jennings, 855 F.Supp. 1427 (M.D. Pa. 1994), the
defendant asked the district (trial) court to substitute his appointed counsel prior to jury
selection. The district court denied the motion. “Whereupon, in open court, [the defendant]
hit his counsel in the side of the head with his closed fist, causing counsel to reel to the
courtroom floor. The blow caused swelling and redness on the cheek and just below the left


        7
            (...continued)
Crim. App. July 6, 2009), the Court of Criminal Appeals affirmed the trial court’s ruling that the defendant
had both implicitly waived and forfeited his right to counsel following seven changes of counsel. Relying
on Carruthers, the Court of Criminal Appeals determined (1) that “[d]espite the trial court’s warnings and
explanations of the law, the defendant persisted in intentional conduct that prompted the disqualification of
counsel,” id. at *7, and (2) that the defendant’s conduct “was egregiously manipulative and abusive of the
judicial process.” Id. This Court denied the defendant’s application for permission to appeal. Willis, 2009
WL 1929161, perm. appeal denied (Tenn. Nov. 23, 2009).

                                                    -11-
ear of counsel.” Id. at 1432-33. The district court allowed counsel to withdraw and refused
to appoint substitute counsel. Shortly thereafter, the defendant “made threatening remarks,
particularly against the Assistant United States Attorney, corrections officers, and his former
counsel. These remarks, interspersed with foul language, included threats to cut the throat
of former counsel and ‘drink his blood,’ to ‘slaughter’ corrections officers, and to murder the
Assistant Untied States Attorney.” Id. at 1433. The court noted that, “[s]ince [the defendant]
possesses enormous physical strength, such threats were and are taken seriously by the
court.” Id.

         In memorializing its decision that the defendant had forfeited his right to counsel at
trial, the district court stated:

              In short, then, [the defendant’s] conduct was, at an absolute minimum,
       unacceptable: it was a threat to the operation of the judicial system and the
       public confidence therein. The response taken by the court was a measured
       response to the conduct. It removed from [the defendant’s] control that which
       he sought to abuse physically and misuse legally. And it is a means, perhaps
       the only means, of deterring repetition of the conduct by [the defendant] or
       others similarly situated. We hold that an indigent defendant who, without
       provocation or justification, physically assaults court-appointed counsel,
       thereby waives the right to appointed counsel.

Id. at 1445.

        While acknowledging that deeming a defendant to have forfeited his right to counsel
was “an extreme sanction,” the district court observed that the defendant’s conduct “was
extreme and outrageous.” Id. at 1444. The court reasoned that “[t]he sanction [of forfeiture]
is appropriate under the circumstances and is commensurate with both the nature and extent
of [the defendant’s] conduct.” Id. The defendant represented himself during his ensuing jury
trial and was convicted. The United States Court of Appeals for the Third Circuit affirmed
the defendant’s convictions in an unpublished opinion. United States v. Jennings, 61 F.3d
897 (3d Cir. 1995) (unpublished table decision).

       In United States v. Leggett, 162 F.3d 237 (3rd Cir. 1998), appointed counsel
represented the defendant through trial. The jury convicted the defendant. At the sentencing
hearing, the defendant

       entered the courtroom in the company of two United States Marshals. Upon
       seeing [his lawyer] in the courtroom, [the defendant] lunged at his attorney and
       punched him in the head, knocking him to the ground. While [the attorney]


                                             -12-
        lay, supine, [the defendant] straddled him and began to choke, scratch and spit
        on him. [After the defendant was removed from the courtroom, the attorney]
        was taken to a hospital by emergency medical personnel and treated for cuts,
        scratches and bruises.

Id. at 240. The trial court allowed the attorney to withdraw “and concluded that [the
defendant] had forfeited his right to counsel for the sentencing hearing.” Id. On appeal, the
Court of Appeals affirmed the trial court’s ruling, characterizing the defendant’s conduct as
“an unprovoked physical battery” that “qualifies as the sort of ‘extremely serious
misconduct’ that amounts to the forfeiture of the right to counsel.” Id. at 250 (quoting
Goldberg, 67 F.3d at 1102). The appellate court noted that an evidentiary hearing was not
necessary prior to a finding of forfeiture because the defendant had assaulted his lawyer “in
full view” of the trial court. Id.

       Significantly, the Court of Appeals in Leggett emphasized that “the forfeiture of
counsel at sentencing does not deal as serious a blow to a defendant as would the forfeiture
of counsel at the trial itself.” Id. at 251 n.14 (emphasis added). The appellate court stated
specifically that it “express[ed] no opinion as to whether [the defendant’s] misconduct would
have been sufficient to justify the forfeiture of counsel during the trial.” Id. (emphasis
added).

       The United States Court of Appeals for the Second Circuit considered the effect of
a criminal defendant’s physical assault on his lawyer in the context of a habeas corpus
proceeding in Gilchrist v. O’Keefe, 260 F.3d 87 (2d Cir. 2001). In Gilchrist, the state trial
court allowed the defendant’s lawyer to withdraw from representing the defendant during
sentencing after the defendant “punched” his lawyer “in the ear and ruptured his eardrum
during a pre-sentencing meeting in a courthouse holding cell.” Id. at 90. The trial court
refused to appoint new counsel for sentencing.

        Under the “deferential” standard of review applicable to habeas corpus proceedings,8
id. at 89, the federal appellate court affirmed the state trial court’s ruling but issued a
significant caveat:

        Although, of course, under no circumstances do we condone a defendant’s use
        of violence against his attorney, had this been a direct appeal from a federal

        8
         A federal appellate court reviewing a state court judgment on habeas corpus review is limited to
granting relief “with respect to any claim that was adjudicated on the merits in State court proceedings” to
such claims that “resulted in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United States.” Gilchrist, 260
F.3d at 93 (quoting 28 U.S.C. § 2254(d)(1)).

                                                   -13-
       conviction we might well have agreed with [the defendant] that the
       constitutional interests protected by the right to counsel prohibit a finding that
       a defendant forfeits that right based on a single incident, where there were no
       warnings that a loss of counsel could result from such misbehavior, where
       there was no evidence that such action was taken to manipulate the court or
       delay proceedings, and where it was possible that other measures short of
       outright denial of counsel could have been taken to protect the safety of
       counsel.

Id. The court continued:

       In response to incidents of this nature, trial courts have the discretion to take
       intermediate steps short of complete denial of counsel, and we think that courts
       should exercise that discretion wherever possible and consider whether the
       protection of counsel can be thoroughly assured by other means–for example,
       keeping a defendant in restraints when meeting with counsel and during
       courtroom proceedings.

Id. at 100.

       State courts, too, have struggled with this issue. In King, 132 Cal. Rptr. 2d at 589-90,
the California Court of Appeal considered a defendant who “head-butted” his first appointed
lawyer and “grabbed” a subsequent appointed lawyer by the lawyer’s coat, pulling the lawyer
towards him, and telling the lawyer that he would “crush” the lawyer’s head if the lawyer
continued. The trial court ruled that this conduct resulted in the defendant forfeiting his right
to counsel with respect to two new charges.

       On review of a petition for writ of mandate regarding the denial of counsel, the Court
of Appeal acknowledged that a defendant could be found to have forfeited his right to
counsel “in certain circumstances based on misconduct, even without a prior warning,” id.
at 595, but cautioned that “trial courts should take intermediate steps to protect counsel
before a complete denial of the right to counsel.” Id. at 596. As to defendants who
physically assault their lawyers, the appellate court stated that such defendants “can–and
should–be physically restrained in future meetings with counsel” and that, “[i]f necessary,
additional measures can be taken to protect counsel, such as noncontact meetings between
defendant and counsel.” Id. The court emphasized:

              We recognize the utmost importance of the right to counsel and its role
       in assuring a fair trial and believe that most instances of misconduct by a
       defendant can be dealt with by measures less severe than forfeiture of counsel.


                                              -14-
       Where defendant engages in a course of misconduct towards counsel that is
       unprovoked and intended to cause counsel to withdraw and to delay or disrupt
       proceedings, and it reasonably appears that measures to curtail the misconduct
       are inadequate or futile, the right to counsel may be forfeited. Yet only in
       those rare cases of extremely serious misconduct towards counsel where it is
       apparent that any lesser measures will be patently inadequate to protect counsel
       may the right to counsel be forfeited in the first instance.

Id.

        The appellate court suggested that, “[w]hile a warning is not always required before
forfeiture of counsel can occur, in instances where the misconduct does not rise to the most
serious level, a warning should be given. The warning will serve to alert defendant to the
seriousness of his misconduct and perhaps forestall future misconduct.” Id. The court also
suggested that, in conjunction with issuing an explicit warning “that if the defendant persists
in his misconduct he will forfeit the right to counsel and have to proceed pro se,” the trial
court have a colloquy with the defendant “in which the defendant is made aware of the
dangers of self-representation.” Id. at 597. In considering whether the trial court had
appropriately ordered forfeiture in the case before it, the Court of Appeal determined that the
hearing preceding the forfeiture was deficient, ordered the trial court to vacate its order
finding that the defendant had forfeited counsel, ordered that counsel be appointed, and
remanded for further proceedings. Id. at 601.

        In State v. Montgomery, 530 S.E.2d 66 (N.C. Ct. App. 2000), the North Carolina
Court of Appeals considered a defendant who was determined to be indigent and was
appointed counsel. The defendant’s family thereafter retained counsel, resulting in the
withdrawal of appointed counsel. When retained counsel withdrew, the public defender was
again appointed. A few months later, another privately-hired lawyer (Mr. Duncan) appeared
on behalf of the defendant, again resulting in the withdrawal of appointed counsel. Duncan
subsequently sought to withdraw on the day of trial on the basis that the defendant’s
girlfriend had retained him and that the defendant no longer desired his services. The trial
court denied counsel’s motion to withdraw, denied a motion for continuance, and informed
the defendant “that he had a right to represent himself, to proceed with Mr. Duncan, or to
retain another attorney, but that he was not entitled to the appointment of another attorney.”
Id. at 68. The defendant appeared with Duncan the next day, again objected to Duncan’s
representation, and disrupted the court with profanity. The trial court found the defendant
in contempt and sentenced him to thirty days in jail.




                                             -15-
        The defendant appeared in court with Duncan a few days later and counsel again
sought to withdraw. Counsel’s motion was denied and the defendant again became
disruptive, resulting in another sentence for contempt. On the day trial was scheduled to
begin, the defendant was conferring with Duncan and threw water in Duncan’s face. The
defendant was again found in contempt and charged with simple assault. Duncan was then
permitted to withdraw, and the trial court informed the defendant that he could hire another
lawyer but that no new lawyer would be appointed to represent him. The defendant went to
trial with “stand-by” counsel and was convicted. Id. at 68.

       On appeal, the Court of Appeals upheld the forfeiture:

               In the present case, defendant was afforded ample opportunity over the
       course of fifteen months, to obtain counsel. He was twice appointed counsel
       as an indigent; twice he released his appointed counsel and retained private
       counsel. Apparently dissatisfied with Mr. Duncan, and upset at Mr. Duncan’s
       inability to secure additional continuances of his trial, defendant was disruptive
       in the courtroom on two occasions, resulting in the trial being delayed. After
       being advised by [the trial court] that the case would not be further continued
       and that Mr. Duncan would not be permitted to withdraw, defendant refused
       to cooperate with Mr. Duncan and assaulted him, resulting in an additional
       month’s delay in the trial. Such purposeful conduct and tactics to delay and
       frustrate the orderly processes of our trial courts simply cannot be condoned.
       Defendant, by his own conduct, forfeited his right to counsel and the trial court
       was not required to determine . . . that defendant had knowingly,
       understandingly, and voluntarily waived such right before requiring him to
       proceed pro se.

Id. at 69 (citation omitted).

        In State v. Boykin, 478 S.E.2d 689 (S.C. Ct. App. 1996), the defendant was facing
trial for armed robbery. The defendant’s appointed counsel moved to withdraw prior to trial
on the basis that the defendant had “verbally abused him and physically threatened him.” Id.
at 689. The trial court held a hearing at which counsel testified that he had been meeting
with the defendant to discuss trial strategy. Counsel told the trial judge that the defendant

       became more and more hostile, and at that time, I told him I’d come back in
       another couple of days, and if he thought up any more that he wanted to use as
       [a] defense, to get that ready. And then as I was walking down the hallway to
       go back up to the front of the jail, he got more and more hostile. He came after
       me, starting cussing me real bad. And then we got in the waiting room out


                                             -16-
       there where the other two guards were, he started coming after me, and I was
       sidestepping around this way (indicating). I had my folders in my hand. And
       as I was sidestepping, one of the guards out there finally had to come over and
       bump him with one shoulder. I guess he didn’t think he was really serious.
       And [the defendant] came around the guard, and the guard had to come around
       and grab him and get in front of him, and the other guard told me to go back
       down the hallway until they could get him back in his cell. And that took
       about two or three minutes. They finally got him back in his cell and they let
       me leave.

Id. at 689-90. The security guards’ report confirmed the attorney’s testimony. The defendant
testified that he was unhappy with his lawyer but denied hitting or touching him. The trial
court granted counsel’s motion to withdraw and refused to appoint new trial counsel. The
trial court later appointed elbow counsel for the defendant’s jury trial. The jury convicted
the defendant of two counts of armed robbery.

       On appeal, the Court of Appeals held that the trial court had acted prematurely in
depriving the defendant of counsel: “Although we do not condone [the defendant’s] actions,
we do not believe they were so severe as to permanently deprive him of appointed counsel,”
adding that the defendant’s conduct “in the one event related by [his lawyer] was not
sufficient to constitute forfeiture.” Id. at 692. The Court of Appeals reversed the defendant’s
convictions and remanded for a new trial. Id.

        In Commonwealth v. Babb, 625 N.E.2d 544 (Mass. 1994), appointed counsel had
worked on the defendant’s case for several months when the defendant filed a pro se motion
for his lawyer’s withdrawal. After ascertaining that the defendant did not wish to represent
himself, the trial court treated the motion as one for the appointment of new counsel and
denied it. The defendant tried this tactic twice more with the same result. The attorney
subsequently filed a motion to withdraw on the basis that the defendant was refusing to assist
in his defense and, additionally, had physically assaulted him. The assault consisted of the
defendant shoving a table against the lawyer during their final meeting. The defendant’s
action resulted in the lawyer being knocked against a wall, whereupon the defendant “struck
[his lawyer], bruising his cheek, and knocking off his glasses.” Id. at 546.

       After a hearing, the trial court determined that the defendant was “attempting to
forestall his trial and disrupt the prosecution by forcing a last minute change of his court-
appointed counsel,” and concluded that, if the defendant were to be appointed new counsel,
the defendant “would be attempting to force a withdrawal by that attorney before his case
could be brought to trial.” Id. The trial court ruled that the defendant had forfeited his right
to court-appointed counsel. Id. at 545.


                                              -17-
       The trial judge “reported the propriety of his ruling” to the intermediate appellate
court, and the Massachusetts Supreme Judicial Court transferred the matter to itself on its
own motion. Id. Upon its review of the record, the high court held that the defendant
“refused without good cause to proceed with [court-appointed counsel] and this constitutes
abandonment, a term perhaps more consistent with the defendant’s conduct than the judge’s
choice of the word ‘forfeiture.’” Id. at 546. The court observed that the record lent
“abundant support to the judge’s findings that the defendant’s complaints about [appointed
counsel] were unwarranted and in some instances false.” Id. The court affirmed the trial
court’s ruling. Id. at 547.

        Though the individual facts vary widely, these cases make clear that a criminal
defendant’s constitutional right to the assistance of counsel is so fundamental, particularly
at trial, that only the most egregious misbehavior will support a forfeiture of that right
without warning and an opportunity to conform his or her conduct to an appropriate
standard.9 We agree with the Massachusetts Supreme Court that “[f]orfeiture is an extreme
sanction in response to extreme conduct that imperils the integrity or safety of court
proceedings,” that it should be utilized only under “extraordinary circumstances,” and that
it should be a “last resort in response to the most grave and deliberate misconduct.” Means,
907 N.E.2d at 658, 659, 660. We also agree with the United States Court of Appeals for the

        9
          Our Court of Criminal Appeals dealt with a defendant’s physical assault on his lawyer in State v.
Small, No. W2007-01723-CCA-R3-CD, 2009 WL 331323 (Tenn. Crim. App. Feb. 10, 2009). In Small, the
defendant was represented by appointed counsel during his jury trial for aggravated robbery. The jury
convicted the defendant. Immediately thereafter, counsel was meeting with the defendant in “the lockup
area.” Id. at *1. The defendant was upset and so counsel informed the defendant that he would come back
to see the defendant after the defendant had calmed down. As counsel turned to leave, the defendant struck
him in the face twice before being subdued. Counsel returned to the courtroom, informed the judge of what
had happened, and was immediately relieved from representation. The trial court refused to appoint new
counsel for the defendant’s sentencing hearing.

         The Court of Criminal Appeals concluded that a “defendant’s physical [attack] of his attorney is the
kind of extreme and egregious behavior that may support a finding of forfeiture of counsel,” id. at *4 (citing
Leggett, 162 F.3d at 250), and held as follows:

        The record establishes that Defendant struck counsel in the face from behind, bloodying
        counsel’s lip. Counsel, who was caught completely off-guard, characterized the attack as
        a “sucker punch.” We agree with the trial court and the State that Defendant’s behavior was
        sufficiently egregious to warrant a forfeiture of the right to appointed counsel . . . . We
        conclude, therefore, that the trial court did not err in finding that Defendant forfeited his
        right to the assistance of appointed counsel at the post-trial phases of his case.

Id. This Court did not review the intermediate appellate court’s decision on direct appeal, and we express
no opinion on the correctness of the trial court’s or the intermediate appellate court’s conclusion of forfeiture
in Small.

                                                      -18-
Second Circuit that a defendant should not be found to have forfeited (or implicitly waived)
his right to counsel at trial on the basis of a single incident of physical violence unless the
violence was extreme and (1) the defendant was previously warned that he could lose the
right to counsel for such behavior; (2) there is evidence that the defendant engaged in the
violence in order to manipulate the court or delay the proceedings; or (3) it is not possible to
take other measures that will protect the safety of counsel. Gilchrist, 260 F.3d at 89.

       In this case, the record indicates that Defendant became unhappy with his lawyer
shortly before his trial was scheduled to begin and informed counsel that he knew how to get
“rid” of counsel. The record does not reveal whether this threat referred to Counsel’s
representation or to Counsel’s life. Defendant took no action to remove counsel from his
case, and Counsel did not report this threat to the court. Nor did Counsel request that
Defendant be restrained in any manner during their next meeting. At Defendant’s next
meeting with his lawyer, Defendant demanded to know whether Counsel believed he was
innocent. When Counsel did not respond in the manner Defendant apparently wanted,
Defendant became agitated, stood up, told Counsel “you’re going to do what I tell you to do,”
and physically assaulted his lawyer by pushing his finger into the glasses that Counsel was
wearing. The record does not indicate that Defendant took these actions to delay or disrupt
the proceedings, and the record does not reflect that Defendant took any other actions aimed
at manipulating the court or obstructing the orderly progression of his trial. There is no
indication that Counsel was anything other than original counsel. Finally, there is no
evidence that other, less onerous corrective measures, such as shackling Defendant during
meetings with his lawyer, would not have been adequate to insure his lawyer’s future safety.

       As we indicated in Carruthers, an indigent criminal defendant should be deemed to
have forfeited his right to counsel at trial only after he or she engages in “extremely serious
misconduct.” 35 S.W.3d at 548. We do not hesitate to conclude that any physical attack on
counsel is serious misconduct, is not to be condoned, and warrants the lawyer’s withdrawal
from the case if requested. Whether a given physical attack constitutes extremely serious
misconduct sufficient to warrant forfeiture of counsel at trial without prior warning, however,
depends upon the particular facts and circumstances of the attack at issue.10

       In this case, we hold that Defendant’s behavior toward his lawyer does not justify the
extreme sanction of total forfeiture of his right to counsel. We emphasize five aspects of the
particular facts and circumstances of this case: (1) Defendant’s behavior occurred prior to


        10
          We do not imply by our decision in this case that a criminal defendant may not be found to have
forfeited his right to counsel in the absence of a physical assault. A forfeiture (or an implicit waiver) may
withstand constitutional scrutiny where, for instance, a defendant repeatedly threatens harm to his lawyer
and/or his lawyer’s family and it is apparent that the defendant has the ability to deliver on his threats.

                                                    -19-
his trial such that a forfeiture affected his right to counsel at trial rather than at a later
proceeding such as sentencing; (2) there is no indication in the record that Defendant
attacked his lawyer in order to obstruct, delay, or manipulate the proceedings; (3)
Defendant’s attack did not result in bodily injury to his lawyer; (4) Defendant’s assault was
limited to a single incident committed against his first lawyer; and (5) other means of
protecting the lawyer’s safety were available. We hold, therefore, that the trial court erred
in ruling that Defendant forfeited his right to counsel at trial.

       A trial court’s erroneous ruling to deprive a defendant of his fundamental
constitutional right to counsel is per se reversible error. Chapman, 386 U.S. at 23 & n.8
(1967); Rodriguez, 254 S.W.3d at 371. Accordingly, we must reverse Defendant’s
conviction and remand this matter for appointment of trial counsel and a new trial.

       For the benefit of trial courts in future cases where a criminal defendant is alleged to
have physically attacked his lawyer, we suggest that the following procedure be followed.
Counsel should be allowed to withdraw if requested. Then, unless the attack occurred in full
view of the court, the trial court should conduct promptly an evidentiary hearing, with the
defendant present and permitted to testify, and make findings of fact on the basis of the proof
presented. The trial court should determine, on the basis of the facts found, whether the
defendant engaged in “extremely serious misconduct” sufficient to justify the extraordinary
sanction of an immediate forfeiture (or implicit waiver) of counsel. In making this
determination, the trial court should consider (a) the stage of the proceedings; (b) whether
the lawyer attacked is initial counsel or is a successor to other lawyers allowed to withdraw
due to problems with the defendant; (c) whether the defendant had previously been warned
about the potential loss of counsel as a result of misbehavior; (d) whether the defendant
engaged in the misconduct deliberately and with the aim of disrupting, delaying, or otherwise
manipulating the proceedings; (e) the degree of violence involved and the seriousness of any
injury inflicted; and (f) whether measures short of forfeiture will be adequate to protect
counsel. If the trial court concludes that the defendant did not commit “extremely serious
misconduct” so as to justify a forfeiture, the trial court should (1) appoint new counsel
(assuming prior counsel withdrew); (2) inform the defendant of the potential consequences
of future misbehavior and the risks of proceeding pro se; and (3) order such measures as are
necessary to protect new counsel from future misbehavior by the defendant.

                                        CONCLUSION

        The trial court and the Court of Criminal Appeals erred in determining that Defendant
forfeited his fundamental constitutional right to counsel at trial as a result of his verbal threat
and physical assault upon counsel. Because this error compromised the integrity of
Defendant’s trial, it is a structural constitutional error. Accordingly, we reverse Defendant’s


                                               -20-
conviction of aggravated rape and remand this matter to the trial court for appointment of
new counsel and a new trial.

        The costs of this cause are taxed to the State of Tennessee, for which execution may
issue if necessary.


                                          _________________________________
                                          CORNELIA A. CLARK, JUSTICE




                                            -21-
