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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Coos No. 2010-190

THE STATE OF NEW HAMPSHIRE v. ROBERT TOWLE Argued: April 7, 2011 Opinion Issued: December 14, 2011 Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State. Stephanie Hausman, assistant appellate defender, of Concord, on the brief and orally, for the defendant.

DUGGAN, J. The defendant, Robert Towle, appeals his conviction of four counts of aggravated felonious sexual assault, see RSA 632-A:2 (2007) (amended 2008), and four counts of criminal liability for the conduct of another, see RSA 626:8 (2007). He was charged with engaging in fellatio and anal penetration with his minor son, J.T. He was also charged with committing the crime of criminal liability for the conduct of another by encouraging his wife to engage in three sexual acts with J.T., and by encouraging another adult woman to have sex with J.T. On appeal, the defendant argues that the Superior Court (Bornstein, J.) erred by denying his motions to proceed pro se and for a mistrial. We reverse and remand.

I. Background At the final pre-trial conference on December 28, 2009, the defendant's attorney, Lincoln T. Soldati, sought and received a continuance of the trial until January 25, 2010, to allow him to review new evidence with the defendant. Attorney Soldati then advised the court that the defendant was concerned that Attorney Soldati's recent election as mayor of Somersworth created a conflict of interest. The following colloquy between the court and the defendant then occurred: THE COURT: . . . What did you want to tell me about this Office of Mayor issue? THE DEFENDANT: . . . [I]t would seem contrary to Mr. Soldati's position of mayor to try to, you know, keep the community safe, you know, if I was exonerated from these charges. You know, it seemed like, well, he got a sex offender off back into the community. You know, it seems contrary to, you know, his goal as mayor and to have the confidence of his community behind him. That only came to light -- it's not like, well he -- you know, he got elected mayor and now it's an issue. That is not how it is. What had come to mind is, is after he got appointed as counsel in August, it was early September he came and visited me at the prison. .... He only came . . . with this Court's file that was handed to him with the indictments. We went over like my background, like education, family, you know, criminal history, . . . and we only generally and briefly touched about, you know, this case. Right? And then, you know, the visit was over. The next I hear from him, right, in any form is . . . nearly four months later, [when] I'm told that on the next business day I have a final pretrial conference, and then Wednesday we're picking [the jury] . . . . This was unexpected. I was not given any advance notice of [a] trial schedule. I had not met with counsel to discuss the case, to go over trial strategy, any evidence that I may have, expected witness testimony, what witnesses I intend to call. Any evidence whatsoever has not been discussed.

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So when he informed me that we're picking a jury on Wednesday and having the two-day trial, I was befuddled to imagine how counsel would expect to go ahead believing that this case would only involve two days, not knowing who to call for witnesses, or what to even ask the witnesses that are intended to be called, or what evidence I have to bring forward. . . . I believe that counsel should have met with me to some degree instead of automatically assuming what the case is based solely upon information received from the prosecution. I believe that a continuance is necessary. And, Your Honor, I'm not looking forward to a continuance. I want this case over and done with. I want to present my defense, argue it, and move on with my life, and then my family can move on with their life. I'm only asking for a continuance just so long enough to gather my exculpatory evidence. After that, Your Honor, let's schedule it, let's go to trial, let's get it over and done with. I cannot go to trial with no prepared defense. And that's where I stand today before this Court, with no prepared defense. So please, Your Honor, I'm only asking for a continuance just so long enough to gather my evidence, and also in which time I can review the case more thoroughly or even to . . . begin to review my case with counsel. .... Also, and a note that I failed to mention that gave rise to a conflict is that when Attorney Soldati informed me, oh, yeah, you know, we haven't discussed the case, but we're going to trial . . . [,] I was under the impression he was going to sink my defense because it would be ludicrous for any attorney to go forward as such. So I was thinking he was going to sink my defense, go to trial, put on an effort like he gave a representation that was adequate enough, you know, just to sink the case so he can get that conviction so he did his community a favor, and the community around here. That's what gave rise to it. .... THE COURT: Okay. First, with respect to what I understand to be Mr. Towle's motion to -- for new counsel based on the -- his alleged or perceived conflict of interest arising from defense counsel's

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election as Mayor of Somersworth, I'm going to deny that motion to the extent that you're requesting new counsel. . . . With respect to . . . Mr. Towle's motion to continue, again, Mr. Soldati has represented that he can be prepared for trial by January 25th. That's four weeks from now. It would certainly seem to be adequate time in which to prepare for trial and obtain whatever exculpatory evidence or other trial preparation is needed to be accomplished. .... So to the extent that the defendant is making a motion for a further continuance beyond January 25th, that motion is denied as well. The court asked the prosecution and defense if they had anything further to discuss and hearing that neither did, concluded the hearing. The defendant then asked whether he could "move to correct." When the court asked what he wanted to say, the defendant stated: "I was not requesting for a new appointment of counsel, Your Honor." When the court asked why the defendant argued that Attorney Soldati had a conflict of interest, if not to request that new counsel be appointed, the defendant answered: "To proceed pro se, because I don't want to be delayed with appointment of new counsel to go through all this over again, you know. So I'd like to have it amended that I was not asking for appointment of new counsel." The court then said: "Well, at least at this stage -- that's fine. I mean, I'm not removing Mr. Soldati. If there's some further motion dealing with anything, I will address it." II. Analysis The defendant argues that the trial court violated the Sixth Amendment to the Federal Constitution and Part I, Article 15 of the State Constitution by failing to treat his statements as a motion to proceed pro se. He asserts that because he timely and unequivocally invoked his constitutional right to selfrepresentation and "[n]othing about the circumstances suggested that [he] was not making his request knowingly, intelligently, or without awareness of the dangers of self-representation," the trial court erred by not permitting him to proceed pro se. We first consider the defendant's arguments under the State Constitution, using federal cases only to aid our analysis. State v. Ball, 124 N.H. 226, 231, 233 (1983). Both Part I, Article 15 of the State Constitution and

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the Sixth Amendment to the United States Constitution guarantee a criminal defendant the right to self-representation and the right to counsel. State v. Ayer, 154 N.H. 500, 516 (2006); see State v. Barham, 126 N.H. 631, 636 (1985); see also Faretta v. California, 422 U.S. 806, 807 (1975). The two rights are mutually exclusive; the exercise of one right nullifies the other. Ayer, 154 N.H. at 516. Because the two rights "are antithetical, and the exercise of one right nullifies the other[,] . . . we respect a waiver of the right to counsel only if the defendant has evinced an understanding of the right and has asserted an unequivocal desire to relinquish it." State v. Panzera, 139 N.H. 235, 238 (1994) (citation omitted). Thus, to be effective, an assertion of the right to selfrepresentation must be: (1) timely; (2) clear and unequivocal; and (3) knowing, intelligent and voluntary. Ayer, 154 N.H. at 516. The issue in this case is whether it was clear and unequivocal. While the dissent contends that whether a request for self-representation is clear and unequivocal is a question of fact, and, therefore, we review the trial court's decision deferentially, the parties have not addressed this issue in their briefs. We need not decide the proper standard of review in this case because the defendant prevails under either a de novo or a deferential standard of review. See People v. Marshall, 931 P.2d 262, 274 (Cal. 1997). As we said in State v. Sweeney, 151 N.H. 666, 670 (2005), "To invoke the right to self-representation, a defendant need not recite some talismanic formula." (Quotation omitted.) An affirmative, unequivocal, timely request will suffice. Here, there is no dispute that the defendant's request was timely. Based upon this record, we conclude that the defendant's request to represent himself was also affirmative and unequivocal, even though it was conditional. It was only after the court denied his request to dismiss his lawyer and to continue the case beyond January 25 that the defendant asked to represent himself. In other words, the defendant was essentially saying that if the court would not dismiss his lawyer or grant a continuance, then he wanted to represent himself. We adopt the approach of a number of courts, which have held that a conditional request is not equivocal. Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir. 1994) ("[A] defendant is not deemed to have equivocated in his desire for self-representation merely because he expresses that view in the alternative [and] simultaneously requests the appointment of new counsel."); Adams v. Carroll, 875 F.2d 1441, 1445 (9th Cir. 1989) ("[The defendant] repeatedly indicated his desire to represent himself if the only alternative was the appointment of [the public defender]. While his requests no doubt were conditional, they were not equivocal."); State v. Richards, 456 N.W.2d 260, 264 (Minn. 1990) ("The case law is clear that a request to proceed pro se is not

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equivocal merely because it is an alternative position, advanced as a fallback to a primary request for different counsel" (quotation and brackets omitted)); Gallego v. State, 23 P.3d 227, 236 (Nev. 2001) ("[T]he district court erred in finding the request [to proceed pro se] equivocal simply because [the defendant] preferred to have new counsel."). Although a judge may deny a request to proceed pro se when it is "merely a tactic for delay," United States v. Mackovich, 209 F.3d 1227, 1237 (10th Cir. 2000), or an "impulsive response," People v. Barnett, 954 P.2d 384, 411 (Cal. 1998) (quotation omitted), or is "made in passing anger or frustration . . . or to frustrate the orderly administration of justice," id. at 410 (quotation omitted), or is an insincere ploy to disrupt the proceedings, see Marshall, 931 P.2d at 274-75, the record in this case does not support such a conclusion. Here, faced with a timely, unequivocal and clear request to represent himself, the trial court's failure to inquire further constituted structural error requiring automatic reversal and a new trial. State v. Ayer, 150 N.H. 14, 25 (2003). Because the defendant prevails on his state claims, we need not reach the federal issues. See Ball, 124 N.H. at 237. In light of our decision, we also need not address the defendant's remaining arguments. Reversed and remanded. CONBOY, J., concurred; LYNN, J., concurred specially; DALIANIS, C.J., with whom HICKS, J., joined, dissented.

LYNN, J., concurring specially. I join Justice Duggan's opinion for the court, but write separately to address more fully the points raised by the dissent. The dissent asserts that there is record support for the implicit finding of the trial court that the defendant's request for self-representation was "neither unequivocal nor sincere." Post at 20. Even if one assumes that the trial court actually made such a finding sub silencio

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