November 21, 2017



                                                                       Supreme Court

                                                                       No. 2015-204-C.A.
                                                                       (P3/14-809A)

                        State                     :

                          v.                      :

                    Tonya Withers.                :




                    NOTICE: This opinion is subject to formal revision before
                    publication in the Rhode Island Reporter. Readers are requested to
                    notify the Opinion Analyst, Supreme Court of Rhode Island,
                    250 Benefit Street, Providence, Rhode Island 02903, at Telephone
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                                                                   Supreme Court

                                                                   No. 2015-204-C.A.
                                                                   (P3/14-809A)

                   State                     :

                    v.                       :

              Tonya Withers.                 :


             Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                         OPINION

       Justice Indeglia, for the Court. Following a jury trial in Providence County Superior

Court, the defendant, Tonya Withers (Withers or defendant), was found guilty of one count of

simple assault in violation of G.L. 1956 § 11-5-3. On appeal, the defendant argues that the trial

justice erred in denying her motion for a new trial and her request to proceed pro se. This case

came before the Supreme Court on September 26, 2017, pursuant to an order directing the parties

to appear and show cause why the issues raised in this appeal should not be summarily decided.

After hearing the arguments of counsel and reviewing the parties’ memoranda, we are satisfied

that cause has not been shown. Accordingly, we shall decide the appeal at this time without

further briefing or argument. For the reasons set forth herein, we affirm the judgment of the

Superior Court.

                                                 I

                                       Facts and Travel

       In February 2014, Maria DiPaola owned a rental property located at 167 Admiral Street

in Providence. On February 11, 2014, DiPaola was at the property—a “split ranch duplex”—

with her employee, Paul Barros, cleaning the property and preparing it for a rental showing to a




                                              -1-
prospective tenant. The previous renter, Withers, had been a tenant for only two months when

she left a note indicating that she had moved and would pick her mattress up at a later date.

          At trial, DiPaola testified that, as she was cleaning, Barros yelled to her that Withers and

a man—later identified in the police report as Antonio Bryant—were approaching the property.

The property had exterior stairs in the front of the building, and it also had interior stairs leading

up to the apartment door. DiPaola instructed Barros to stop Withers from coming into the

apartment. In response to “yelling and shouting,” DiPaola recalled that she opened the apartment

door to see Withers and Bryant walking up the stairs. DiPaola testified that Withers was walking

backwards up the outside stairwell, using a walker, and Bryant was assisting by pushing the

walker.

          DiPaola walked down the interior stairs and began yelling at Withers, “[y]ou can’t come

in.” At this point, DiPaola observed Withers “barrelling [sic] up the stairs,” before Withers

“grabbed [her] on [her] arm” and “threw [her] down the stairs.” DiPaola tumbled down about

four or five stairs and landed at the very bottom of the stairwell. In response, DiPaola called out

to Barros, “Help me. She threw me downstairs.” DiPaola testified that Barros was located on

the exterior stairs at this time.

          At trial, Barros recalled walking out of the building to the exterior stairs as Withers and

Bryant were walking up those stairs. He called the police to report Withers’ arrival on the

property without DiPaola’s consent, and at the same time he noticed DiPaola “on the floor,

yelling, Call [sic] the police. She just pushed me down the stairs.” On cross-examination,

defense counsel asked Barros whether he had seen Withers walking up the inside stairs, to which

Barros responded, “She went passed [sic] me with the other guy * * * and she started going up




                                                  -2-
the stairs.” Barros then clarified that he did not actually see Withers going up the stairs because

he was looking at his phone, but he stated that he knew she had been walking up the stairs.

        Officer Brian Auclair responded to DiPaola’s apartment building for a reported assault,

and he spoke with DiPaola who “appeared upset. I believe she was crying.” Officer Auclair

testified that DiPaola told him she was pushed down the stairs by the second-floor tenant.

Officer Auclair took a written statement from DiPaola, who was “shaking” while she wrote. In

his police report, Officer Auclair memorialized the events as follows:

                   “DiPaola and Barros stated that Tonya Withers * * * and Antonio
                   Bryant * * * came rushing up the stairs and began to force the door
                   open. When DiPaola ran down the stairs telling her to stop,
                   Withers pushed her causing DiPaola to fall down the stairs. Police
                   observed DiPaola holding her left shoulder but she refused
                   Rescue.”

        In her written statement, DiPaola wrote that Withers “came up to [the] door, and was

pushing it in[.] I ran down the stairs to open [the] door. And she grab[ed] me and push[ed] me

down outside stairs.” On redirect, the prosecutor asked DiPaola what she considered “outside”

stairs, and DiPaola responded that she meant the stairs outside the apartment, meaning the

interior stairs.

        On cross-examination, defense counsel confronted DiPaola with her prior testimony from

a housing court hearing a few weeks after the purported assault. In those proceedings, DiPaola

described the incident: “I came to the front door, and [Withers] started screaming at me, and I

was in front of the door, and she was trying to move me out of the door, and she literally picked

me up and threw me down the stairs.” When defense counsel asked DiPaola at trial to what

stairs she had been referring, DiPaola clarified that she considered the apartment door the front

door, indicating that the stairs she was thrown down were the interior stairs.




                                                  -3-
       After the close of the trial, the jury found defendant guilty of simple assault. The

defendant moved for a new trial, which was denied. The defendant was sentenced to one year of

probation, including mental health counseling. The trial justice also ordered no contact between

defendant and the victim. The defendant timely appealed to this Court. In her appeal, defendant

raises two issues—(1) the trial justice erred in denying a motion for a new trial; and (2) the trial

justice erred in not letting defendant proceed pro se, pursuant to the Sixth Amendment to the

United States Constitution and article 1, section 10 of the Rhode Island Constitution.1

                                                 II

                                       Standard of Review

                                                 A

                                     Motion for a New Trial

       When this Court reviews a motion for a new trial, we give “great weight” to a trial

justice’s ruling when she “articulate[s] sufficient reasoning in support of the ruling.” State v.

Kizekai, 19 A.3d 583, 589 (R.I. 2011) (quoting State v. Guerra, 12 A.3d 759, 766 (R.I. 2011)).

We will disturb a trial justice’s ruling only “if we are convinced that the trial justice committed

clear error or that * * * she overlooked or misconceived material and relevant evidence [relating]

to a critical issue in the case.” Id. (quoting State v. Cardona, 969 A.2d 667, 672-73 (R.I. 2009)).

On appeal, this Court “give[s] great deference” to a trial justice’s “credibility determination” and

“will not itself weigh the credibility of the witnesses.” Id. at 590 (quoting State v. Roberts, 705

A.2d 1380, 1380 (R.I. 1997) (mem.)).




1
 Courts now often refer to pro se parties as “‘self-represented litigants.’” Tworog v. Tworog, 45
A.3d 1194, 1196 n. 3 (R.I. 2012).


                                               -4-
                                                  B

                     Sixth Amendment Right to Proceed without Counsel

       When this Court reviews a trial justice’s determination of whether a defendant’s request

to waive his or her right to counsel is “knowing, voluntary, and intelligent,” the analysis is

conducted de novo.2 State v. Cruz, 109 A.3d 381, 389 (R.I. 2015) (quoting State v. Sampson, 24

A.3d 1131, 1139 (R.I. 2011)). With respect to the trial justice’s “findings of historical fact, and

inferences drawn from those facts,” this Court defers greatly to the trial justice’s determinations.

State v. Eddy, 68 A.3d 1089, 1098 (R.I. 2013) (quoting Thornton v. State, 948 A.2d 312, 316

(R.I. 2008)).

                                                 III

                                             Discussion

                                                  A

                                     Motion for a New Trial

       The defendant contends that the trial justice should have granted her motion for a new

trial because she found the only witness capable of proving that an assault actually happened to

be not credible. In determining whether to grant a new trial, “the trial justice must ‘(1) consider

the evidence in light of the jury charge, (2) independently assess the credibility of the witnesses

and the weight of the evidence, and then (3) determine whether he or she would have reached a

result different from that reached by the jury.’” State v. Moore, 154 A.3d 472, 481 (R.I. 2017)

2
  The state points this Court to a number of federal district court cases in support of its position
that this Court’s relevant standard of review should be abuse of discretion. See State v. Winkler,
698 S.E.2d 596, 602 (S.C. 2010) (collecting cases) (stating that a number of jurisdictions have
held that a defendant’s right to proceed pro se falls within a trial justice’s discretion once a trial
has started). However, in light of our recent decision in Cruz, we review the trial justice’s
decision de novo. See State v. Cruz, 109 A.3d 381, 386, 389 (R.I. 2015) (reviewing a trial
justice’s grant of a defendant’s request to proceed without counsel once the jury selection had
commenced).


                                                -5-
(quoting State v. Fleck, 81 A.3d 1129, 1134 (R.I. 2014)). If the trial justice disagrees with the

verdict, “the motion will be denied if the trial justice determines that the evidence and the

reasonable inferences drawn therefrom are so nearly balanced that reasonable individuals could

differ.” Id. (quoting State v. DiCarlo, 987 A.2d 867, 870 (R.I. 2010)).

       The trial justice cited to her role as the “13th juror” in passing “independent judgment on

the credibility of the witnesses and on the weight of the evidence.” The trial justice first

remarked on her concerns with DiPaola’s credibility as a trial witness, especially given DiPaola’s

conflicting statements and “jumbled” version of events. The apartment building had two sets of

stairs—one interior and one exterior. DiPaola’s description of Withers’ assault “troubled” the

trial justice as DiPaola placed the assault on the interior stairwell, while she had referred to the

location in the witness statement as occurring on the “outside stairs.”

       The trial justice also commented on the trial version of DiPaola’s account of the incident,

explaining that she found “the version [DiPaola] offered at trial” was “really difficult to

understand logistically how it occurred.” She suggested that the confusing aspect of DiPaola’s

testimony was how DiPaola could have been “thrown down the stairs” without “hit[ting] the

body of the [d]efendant * * * [or] the walker,” but rather, “she just went down the stairs.”

Referring to the housing court transcript, the trial justice also remarked that Barros testified in

those proceedings that he found DiPaola on the floor inside the house “pretty upset.” While

questioning the portion of DiPaola’s testimony describing how she fell, the trial justice did

believe her when she testified that the police came quickly, which the trial justice found to be

consistent with the testimony of Officer Auclair. The trial justice again referred to a transcript

from housing court proceedings, where Barros testified that the incident occurred inside while he

was outside.




                                                -6-
       Based on her disbelief of the sequence of events as relayed at trial, the trial justice

concluded that she would have found that the state had failed to prove its case beyond a

reasonable doubt. However, given the standard for a motion for a new trial, the trial justice

proceeded to decide whether reasonable minds could have differed. The trial justice ultimately

found that there was sufficient evidence, even after discrediting DiPaola’s testimony that

defendant committed an assault.3 In making her determination, the trial justice relied on the

testimony of Officer Auclair and Barros, both of whom she found credible. Officer Auclair

recalled arriving on the scene soon after the incident and found DiPaola “shaking and crying”

while she relayed that she had been pushed down the stairs and her arm was sore. Barros stated

that he saw DiPaola on the floor, telling him to call the police because Withers had pushed her

down the stairs.

       After a close review of the record, we cannot conclude that the trial justice clearly erred

or “overlook[ed] * * * material inconsistencies.” State v. Ferreira, 21 A.3d 355, 366 (R.I. 2011).

Even discounting DiPaola’s testimony at trial, two other witnesses testified that they encountered

DiPaola after the incident, visibly upset, and she told them Withers had pushed her—declarations

a reasonable jury could have found to have been credible based on the circumstantial evidence

presented at trial. Here, the trial justice found that the circumstantial evidence surrounding

DiPaola’s fall down the stairs was sufficient to overcome the confusing portion of her testimony

regarding the incident. See State v. Whitaker, 79 A.3d 795, 804 (R.I. 2013) (upholding denial of



3
  A “simple assault [is] an ‘unlawful attempt or offer, with force or violence, to do a corporal
hurt to another, whether from malice or wantonness.’” State v. Lomba, 37 A.3d 615, 620 (R.I.
2012) (quoting State v. Pope, 414 A.2d 781, 788 (R.I. 1980)). Often charged with assault, a
battery is “an act that was intended to cause, and does cause, an offensive contact with or
unconsented touching of or trauma upon the body of another, thereby generally resulting in the
consummation of the assault.” State v. Albanese, 970 A.2d 1215, 1221 (R.I. 2009) (quoting State
v. Messa, 594 A.2d 882, 884 (R.I. 1991)).


                                              -7-
a motion for a new trial where the trial justice found numerous witnesses not credible, but still

determined that the testimony was supported by circumstantial evidence). Affording the trial

justice great deference in her determination, we conclude that Withers’ assault of DiPaola is

supported by the evidence. Therefore, after a close review of the lower court record and the trial

justice’s remarks, we are convinced that she did not err in denying defendant’s motion for a new

trial.

         We affirm her denial of that motion.

                                                B

                      Sixth Amendment Right to Proceed without Counsel

         The defendant also argues that the trial justice erred in denying defendant the right to

proceed pro se at trial. The state counters that defendant’s request to represent herself on the

second day of trial was untimely. It is not clear whether defendant expressly requested to

proceed pro se at trial; but, in any event, we address defendant’s argument now.

         “[A] [s]tate may [not] constitutionally hale a person into its criminal courts and there

force a lawyer upon him, even when he insists that he wants to conduct his own defense.” State

v. Kennedy, 586 A.2d 1089, 1091 (R.I. 1991) (quoting Faretta v. California, 422 U.S. 806, 807

(1975)). However, a defendant may proceed pro se if he or she wishes only so long as the

waiver of his or her right to counsel is valid. Cruz, 109 A.3d at 390. A defendant’s waiver must

be made “voluntarily, knowingly, and intelligently.”       Id.   First, the Court must determine

whether the waiver was voluntary, and then the Court should proceed to decide whether it was

“knowing and intelligent.” Id. (quoting State v. Laurence, 848 A.2d 238, 253 (R.I. 2004)).

Where a defendant is competent, we have articulated six factors that the trial justice may use as a




                                                -8-
guide in reviewing a defendant’s request under a totality of the circumstances approach. 4 Id. at

391. The factors are as follows:

               “(1) the background, the experience, and the conduct of the
               defendant at the hearing, including his age, his education, and his
               physical and mental health; (2) the extent to which the defendant
               has had prior contact with lawyers before the hearing; (3) the
               defendant’s knowledge of the nature of the proceeding and the
               sentence that may potentially be [ ]imposed; (4) the question of
               whether standby counsel has been appointed and the extent to
               which he or she has aided the defendant before or at the hearing;
               (5) the question of whether the waiver of counsel was the result of
               mistreatment or coercion; and (6) the question of whether the
               defendant is trying to manipulate the events of the hearing.” State
               v. Chabot, 682 A.2d 1377, 1380 (R.I. 1996).

       The defense contends that the trial justice failed to determine whether Withers was

knowingly, voluntarily, and intelligently waiving her right to counsel. We disagree. The trial

justice explicitly referenced Cruz, 109 A.3d at 390, and cited the “voluntarily, knowingly, and

intelligently” test. She expressed the test as follows: “When confronted with a purported waiver

of counsel, the [c]ourt applies a two-prong analysis to determine the validity of the waiver. The

[c]ourt first determines whether it was voluntary, and then whether it was knowing and

intelligent. It must be all three. I have to examine the totality of the circumstances.” Then, “[a]

valid waiver of counsel is effective only if a defendant knows what he or she is doing, and his or

her choice is made with eyes open. A criminal defendant certainly should be made aware of the

dangers and disadvantages of self-representation.”



4
   If there is a question of a defendant’s mental competency, a trial justice must consider the six
factors in deciding whether a defendant’s waiver of his or her right to counsel is knowing,
voluntary, and intelligent. See Cruz, 109 A.3d at 391. However, the trial justice need not
explicitly apply these six factors when the mental competency of a defendant is not at issue. Id.
at 392. Here, neither party addresses Withers’ competency in their briefs, and the trial justice did
not indicate any concern on the record regarding Withers’ competency when she denied the
defendant’s request to proceed pro se; and so we assume defendant was competent and review
the trial justice’s decision accordingly.


                                               -9-
       In this case, the trial had already commenced when defendant expressed dissatisfaction

with her lawyers. In fact, DiPaola had already testified, and her cross-examination had been

completed by defense counsel. As the defense noted, the trial justice did refer to the timing of

defendant’s request in relation to the trial proceedings, noting also that defendant had been

absent for one-and-one-half days of the trial after the jury was sworn. Although defendant

voiced a number of excuses for her absence, the trial justice determined that her failure to show

up to court was voluntary.

       Additionally, defendant stated her desire to avoid the trial entirely:

               “And I still say my lawyers, they don’t—they don’t, um—they
               don’t impress me. And I’m fine. Again, you wanted to do it. I’m
               going prepared to drop them, drop this whole court crap, because,
               okay, it’s on the phone where I was. It’s going to go to Supreme
               Court on you, like I said before. I want to go back to my cell.
               “* * *
               “I don’t want to be here anymore. I spoke.
               “* * *
               “Leave me alone. I don’t care. I don’t care. Whatever. I don’t
               care. I’m going to Supreme. I don’t care. I don’t care. You’re
               fired. Leave me alone. Can I go back to my cell now?”

       The trial justice also asked defendant to specify her issues with her counsel.         The

defendant expressed concern with defense counsel’s jury selection because there were no

African-American jurors. The trial justice attempted to explain to defendant that there had been

no African Americans stricken from the jury because there were simply no African Americans

selected—something beyond defense counsel’s control.

       The trial justice concluded that she did not believe defendant had “made the requisite

intelligent and knowing decision to discharge counsel at this stage to meet the standard,” and she

gave the defense attorneys an opportunity to address the matter. Defense counsel represented




                                               - 10 -
that they were prepared to continue defending Withers notwithstanding her request for them to

withdraw. Subsequently, the trial justice denied Withers’ request to discharge her attorneys.

       We agree with the trial justice. The defendant’s contentions regarding her counsel

elucidated her lack of understanding of the jury selection process, which is evidence that

defendant was not knowingly, intelligently, and voluntarily waiving her right to counsel. Put

differently, defendant raised a complaint about her counsel that, had she represented herself, she

could not have done better.     But see State v. Spencer, 783 A.2d 413, 417-18 (R.I. 2001)

(upholding a grant of a defendant’s request to proceed pro se where the defendant explained that

there were issues he wished to address with the witnesses that were important to his defense).

        Furthermore, defendant had not been present for the testimony of key witnesses,

including that of DiPaola. As such, her choice to represent herself pro se after a significant

absence could certainly not be said to be knowing or intelligent where such nonattendance put

her at a substantial disadvantage in completing the trial. See Cruz, 109 A.3d at 390 (“A valid

waiver is effective only if a ‘defendant knows what he [or she] is doing and his [or her] choice is

made with eyes open.’” (quoting Faretta, 422 U.S. at 835)). It is inconceivable to us that

defendant would knowingly put herself at such a disadvantage. Moreover, although the timing

of defendant’s midtrial request was not dispositive to the trial justice’s analysis, as the defense

suggests, it certainly indicates that defendant’s waiver was not knowing or intelligent. See

Spencer, 783 A.2d at 417 (acknowledging that the totality of the circumstances analysis used in

determining whether a waiver is knowing, voluntary, and intelligent must be conducted “in light

of the particular stage of the proceedings at the time the waiver is proposed”). Likewise,

defendant’s stated wish to abandon the trial altogether and “go back to [her] cell” demonstrates a




                                              - 11 -
lack of understanding that firing her attorneys would still result in defendant’s required

appearance in court for the remainder of the trial.

        Although we have expressed a preference for trial justices to have more than a brief

discussion with a defendant before deciding whether a waiver of right to counsel is effective, the

defendant’s failure to attend the initial portion of the trial indicates that the defendant was not

making a knowing and intelligent waiver of her constitutional rights. See Cruz, 109 A.3d at 393

(“[A]lthough an explicit Chabot discussion would have been preferable, the absence of such a

colloquy does not infect [a] defendant’s waiver of counsel with any constitutional defect.”). In

view of that, we find that the trial justice engaged in an appropriate inquiry with the defendant in

order to establish whether her requested waiver of her right to counsel was voluntary, knowing,

and intelligent.

                                                 IV

                                            Conclusion

        For the reasons stated herein, we affirm the judgment of the Superior Court. The record

shall be returned to that tribunal.




                                               - 12 -
STATE OF RHODE ISLAND AND                                  PROVIDENCE PLANTATIONS



                         SUPREME COURT – CLERK’S OFFICE

                                 OPINION COVER SHEET

Title of Case                        State v. Tonya Withers.
                                     No. 2015-204-C.A.
Case Number
                                     (P3/14-809A)
Date Opinion Filed                   November 21, 2017
                                     Suttell, C.J., Goldberg, Flaherty, Robinson, and
Justices
                                     Indeglia, JJ.
Written By                           Associate Justice Gilbert V. Indeglia

Source of Appeal                     Providence County Superior Court

Judicial Officer From Lower Court    Associate Justice Netti C. Vogel
                                     For State:

                                     Aaron L. Weisman
                                     Department of Attorney General
Attorney(s) on Appeal
                                     For Defendant:

                                     Kara J. Maguire
                                     Office of the Public Defender




SU-CMS-02A (revised June 2016)
