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State v. Brett Morrison
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Decision:1998 ME 220
on Briefs:September 2, 1998
Decided:	October 1, 1998




	[¶1] Defendant Brett Morrison appeals from judgments entered in the
Superior Court (Cumberland County, Atwood, J.) on a jury verdict convicting
him of theft by deception (17-A M.R.S.A. § 354(1) & 362(2)(A) (1983)) and
forgery (17-A M.R.S.A. § 703(1)(A) & (2)(A) (1983 & Supp. 1997)).  On
appeal, defendant argues that the court (Saufley, J.) abused its discretion
when it denied his pretrial request for court-appointed counsel and when it
found that he had waived his right to counsel.  Defendant also contends that
there was insufficient evidence to convict him of forgery.  Finding no error,
we affirm the judgments.
	[¶2] Defendant was indicted for theft by deception and forgery, and
filed a motion for appointment of counsel, accompanied by a financial
affidavit.  In his affidavit, he claimed an approximate annual income of
$40,000 and personal property valued in excess of $15,000.  The court
denied his motion and continued his arraignment for four days to permit
him to retain counsel.  Defendant was arraigned as scheduled and retained
counsel for arraignment only.  The court on subsequent occasions continued
the case for trial in order to permit him to retain counsel.  Despite his
earlier representations to the court, defendant was still without counsel on
the day of trial.  The court fully advised him of his right to counsel prior to
trial and on the day of trial.  Although defendant described his unsuccessful
efforts to hire a number of counsel who demanded large retainers, even
when asked, he did not suggest that his financial affidavit was in error.  The
court explicitly found that his actions and statements demonstrated a waiver
of his right to counsel.  After a trial in which he represented himself,
defendant was convicted on both counts.  Prior to sentencing, defendant
again requested the appointment of counsel and  for the first time, revealed
in a corrected financial affidavit that he had no annual income.  The court
appointed counsel for defendant and thereafter sentenced him.  This appeal
	[¶3] Defendant initially contends that the court abused its discretion
in refusing to appoint counsel for trial.  We disagree.  Defendant's initial
financial affidavit claimed sufficient assets to allow the court to determine
that he had the means to employ counsel.  See M.R. Crim. P. 44.
	[¶4] Defendant also argues that the court erred in finding that he
knowingly and intelligently waived his right to counsel.  It is his burden to
persuade us that the court's factual finding of a knowing and intelligent
waiver was clearly erroneous.  See State v. Morrison, 567 A.2d 1350, 1351
(Me. 1990).  The right of a criminal defendant to the assistance of counsel
"cannot be manipulated so as to obstruct the orderly procedure in the
courts or to interfere with the fair, efficient and effective administration of
justice."  State v. Ayers, 464 A.2d 963, 966 (Me. 1983).  Once it is
determined that the defendant has the means to retain counsel, his
seemingly stubborn failure to hire an attorney may constitute a knowing and
intelligent waiver.  Based on the facts defendant presented, the court did
not err in finding such a waiver.
	[¶5] Finally, defendant argues that the evidence was insufficient to
convict him of forgery.  Contrary to his contention, the evidence was
sufficient to allow a jury rationally to find beyond a reasonable doubt that
defendant committed each of the elements of forgery.  See State v. Deering,
1998 ME 23, ¶ 12, 706 A.2d 582, 585.
	The entry is:
				Judgments affirmed.
Attorneys for State: Andrew Ketterer, Attorney General Donald W. Macomber, Asst. Atty. Gen. Kathleen Roberts, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Attorney for defendant: Kevin R. Heffernan, Esq. P O Box 17852 Portland, ME 04112 (appointed for this appeal)