Lamnissos, Marios Michael

Lamnissos was convicted of assault family violence against his wife.  He chose to represent himself and was given shadow counsel.

His wife testified that she was forced to marry him in Syria after he raped her.  She also claimed she had not reported his prior abuse because, inter alia, he forbid her from having a phone or contact with others and withheld her immigration documents.  Her direct testimony was brief; the judge said it was “maybe 15 minutes.”  On cross-examination, Lamnissos asked her about their relationship and her green card.  He also attempted numerous times to ask her about things like the countries to which they moved and why, a time the victim allegedly stabbed him (that fell within his granted motion in limine), whether he installed cameras in his daughter’s house because of the victim’s lewd behavior, and whether she lied about her residence during a protective order hearing.  The judge repeatedly excused the jury to explain the impropriety of his questions and to emphasize that the relevant information had either been adequately covered or not yet reached.  Lamnissos repeatedly told the judge that “everything is relevant” and it all formed the core of his defense.  Shortly after one of those hearings, the judge sustained a State’s objection to relevance and again excused the jury.  The judge noted that the victim had been on the stand for over two hours at that point and told Lamnissos he forfeited his right to represent himself.  The judge appointed shadow counsel who, the following day, filed a written motion for continuance citing his lack of preparation in reliance on Lamnissos’ self-representation.  The judge denied it, citing both the interests of the jury and witnesses and his confidence in counsel’s abilities based on what he had seen.  No record was made of how counsel’s representation prejudiced Lamnisso’s defense.

Lamnissos appealed.  The court of appeals noted that the trial court repeatedly instructed Lamnissos to focus on relevant issues and expressly defined what would be relevant inquiries, and Lamnissos “strayed back into those areas repeatedly[,]” causing unnecessary delay.  As a result, an implicit finding of “deliberate engagement in serious and obstructionist conduct,” Faretta v. California, 422 U.S. 806, 834 n.46 (1975), was not an abuse of discretion.  It also found no abuse of discretion in denying the continuance, citing counsel’s presence from pretrial hearings to his appointment and the lack of record showing any prejudice.

Lamnissos argues on discretionary review that “truly calculated obstruction” on the order of sovereign-citizen-type recalcitrance should be required to justify denial of the right of self-representation to a competent person, citing Lewis v. State, 532 S.W.3d 423 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d), as an example.  Alternatively, a continuance should have been granted.  Lamnissos says he is “not asserting a claim that his counsel was ineffective” but argues he was left “without effective assistance of counsel” because there had been no attorney-client relationship and no collaboration to that point.  He contrasts his situation with a defendant who withdraws a waiver of counsel.  Under Tex. Code Crim. Proc. art. 1.051(h), the trial court has discretion to grant appointed counsel ten days to prepare.  That is fair because that defendant changed his mind midstream; he assumed the risk.  That is not so here.