# Record and brief — Morris v. Slappy > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1936%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1983 - **Citation:** 461 U.S. 1 ## Text WON Nad Supreme Cour FILED pec 42 1981 ALEXANDeR L. STEVAS. CLERK IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 JOHN PAUL MORRIS, Warden, Petitioner, v. JOSEPH D. SLAPPY, Respondent. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GEORGE DEUKMEJIAN, Attorney General ROBERT H. PHILIBOSIAN, Chief Assistant Attorney General-Criminal Division WILLIAM D. STEIN Assistant Attorney General W. ERIC COLLINS Deputy Attorney General DANE R. GILLETTE Deputy Attorney General 6000 State Building San Francisco, CA 94102 Telephone: (415) 557-1475 Attorneys for Respondent QUESTIONS PRESENTED 1. Does the Sixth Amendment entitle a criminal defendant to demand continued representation by a particular deputy public defender who had represented him earlier in the proceedings? 2. If it does, is a generalized complaint on the morning of trial that successor counsel is not prepared, suf- ficient to inform the state trial judge that previous counsel is being demanded? 3. If a state trial judge refuses to honor such a demand, must there be a reversal per se, or must prejudice be shown? Table of Contents Gpinion Below .« «cee es Jurtegietion ..e«eseee Constitutional Provision Involved — = 7 - — o - 7 Statement of the Case ... Reasons for Granting the Writ Argument . 8 &.0 © ©&- ss 2s .@ Conclusion . «© :e«eesreee Argersinger v. Hamlin ii Table of Authorities (1972) 407 U.S. 25 Avery v. Alabama (1940) 308 U.S. 444. Chambers v. Maroney (1970) 399 U.S. 42 Geders Vv. United States (1976) 425 U.S. 80 Gideon v. Wainwright (1963) 372 U.S. 335. Glasser v. United States (1942) 315 U.S. 60 Greenfield v. Gunn (9th Cir. 1977) 556 F.2d 935 Herring v. New York (1975) 422 U.S. 853 . Holloway v. Arkansas (1978) 435 U.S. 475. Majeske v. United States (9th Cir. 1959) 266 F.2d 947 Maynes v. People 178 Colo.188 (1972) People (1961) People (1951) Vv. 22 Vv. 36 Cox I11.2d 534 Stroble Cal.2d@ 615 14 14 iii. Table of Authorities (Continued) Page Powell v. Alabama (1932) 287 U.S. 45 . . . 7 . o . . 17 Releford v. United States (9th Cir. 1961) 288 F.2d 298 ... 20 Sumner v. Mata (1981)__—iU~S. » 4013 8,Ce. 7646. . 17 United States v. Joyce (2nd Cir. 1976) 542 F.2d 158 20 United States v. Poulack (lst Cir. 1977) 556 F.2d 83 20 Wainwright v., Sykes (1977) 433 U.S. 73 17 Williams v. United States (7th Cir. 1964) 332 F.2d 36 20 iv. Constitutional Provisions United States Constitution Ame ndment Six oO . . 7. _ - . . . Statutes 28 U.S.C. Section 1254 (1) a. =’ Se 2 oe. es Rules Rules of the Supreme Court Rule 21.1(k) (iii) . . « © © « « Other Authorities Wice & Suwak, "Current Realities of Public Defender Programs: A National Survey and Analysis" 10 Crim. Law Bull. 161 (1974). Annotation, “Indigent Accused's Right to Choose Particular Counsel Appointed to Assist Him" 66 ALR. 3d 996 . . . >. >. . . . > IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 JOHN PAUL MORRIS, Warden, Petitioner, Vv. JOSEPH D. SLAPPY, Respondent, PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT The petitioner, John Paul Morris, respectfully prays that a writ of cer- tiorari issue to review the judgment of the United States Court of Appeals for the Ninth Circuit entered in this pro- ceeding on June 29, 1981. 2. OriNION BELOW The opinion of the Court of Appeals is reported at 649 F.2d 718 and is attached to this petition as Appendix A. The order of the Court of Appeals amend- ing its opinion, denying the petition for rehearing and rejecting the suggestion for rehearing en banc is unreported, and is attached to this petition as Appendix B. JURISDICTION The judgment of the Court of Appeals was entered on June 29, 198%. The order of the Court of Appeals amending its opi- nion, denying the petition for rehearing and rejecting the suggestion for rehearing en banc was filed on October 19, 1981. This petition is timely filed within 60 days of October 19, 1981. The juris- diction of this Court is invoked under 3. Title 28, United States Code section 1254(1). CONSTITUTIONAL PROVISION INVOLVED The Sixth Amendment to the United States Constitution states in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel for his defense." STATEMENT OF THE CASE Respondent Joseph D. Slappy was charged in San Francisco Superior Court with committing rape, forcible oral copulation, burglary, robbery and false imprisonment. The San Francisco Public Defender's Office was appointed to represent him. On the first day of trial, Thursday, September 23, 1976, Slappy complained that Bruce Hotchkiss, the Deputy Public Defender assigned to the case had 4. had insufficient time to prepare (RT 5-6).2/ Specifically he asserted that Hotchkiss had only had the case for a day and a half (RT 5-6). Hotchkiss told the judge that he had been assigned the case the previous Friday, six days t-fore trial, had reviewed the investigation and file and was fully prepared. The trial judge denied Slappy's request for a con- tinuance based on the assurances from Hotchkiss that he was ready (RT 5-6). The case had been transferred to Hotchkiss because Deputy Public Defender Harvey Goldfine, who had handled the pre- liminary hearing and investigation, was in the hospital following an operation for appendicitis (RT 7). Slappy said 1. RT designates portions of the transcript from Slappy's first trial attached as Exhibit B to the return to the petition for writ of habeas corpus filed in the United States District Court, and subsequently lodged in the United States Court of Appeals. 5. that he was “satisfied with the Public Defender," but was still concerned about whether Hotchkiss was adequately pre- pared (RT 7). The trial then began. On the second day of trial Slappy asked to address the court. He repeated his complaint that Hotchkiss had not had time to prepare (RT 80). The judge stated that he had known Hotchkiss as a deputy public defender for over nine years and accepted his assurances that he had had adequate time to prepare (RT 80-81). Slappy then repeated his Claim that Hotchkiss had only had the case for a day and a half, and therefore could not be prepared (RT 81). In response, Hotchkiss once more reviewed his preparation for trial, which which included three interviews with Slappy, familiarization with the volu- minous investigation" and prepara- tion for cross-examination of the 6. prosecution witnesses (RT 82-83). It was then that Slappy stated for the first time, "Mr. Harvey Goldfine was my attorney, and he still is” (RT 83). The judge said that because of the weekend and other court commitments on Monday, the case would be continued for three days until the following Tuesday. He urged Slappy to cooperate with Hotchkiss (RT 83-85). On Tuesday, September 28, 1976, eleven days after Hotchkiss had been assigned to represent Slappy, trial resumed. Slappy now took the position that he did not have an attorney because his counsel was in the hospital (RT 152- 153). He then said that he would not participate in the trial, and asked to be excused from the courtroom (RT 154-156). Rejecting advice from both the judge and Hotchkiss, Slappy remained adamant in his refusal to cooperate (RT 152-156), 7. Slappy was convicted of robbery, burglary and false imprisonment, but the jury hung on the two sex offense charges. At his retrial on October 7, Slappy again refused to cooperate with Hotchkiss, and would not take the stand to testify despite repeated pleas from his attorney that he do so (RT II 85-87; RT III 24-28) .2/ Slappy was convicted of rape and forcible oral copulation. Slappy's convictions were affirmed by the California Court of Appeal in an unpublished opinion filed on January 25, 1978,3/ The California Supreme Court denied hearing. 2. RT II and RT III designate por- tions of the Reporter's Transcript from Slappy's second trial, attached as Exhibits C and D to the return filed in the United States District Court. 3. While not included in the return filed in District Court, a copy of this opinion is attached as Appendix C pur- suant to Rule 21.1(k) (ii), Rules of the Supreme Court. On April 12, 1978 Slappy filed a petition for writ of habeas corpus in the United States District Court for the Northern District of California, alleging a violation of his right to counsel under the Sixth Amendment to the United States Constitution. The petition was denied, and judgment of dismissal was entered, on December 7, 1978. (The memorandum and Order of the district judge is unpub- lished, and is attached as Appendix D. The judgment of dismissal is attached as Appendix E). Slappy appealed to the United States Court of Appeals for the Ninth Circuit. In an opinion filed on June 29, 1981, that court concluded that Slappy had been deprived of his right to counsel, and found the error to be reversible per se (Appendix A). The opinion was amended when rehearing was denied on October 19, 1981 (Appendix B). REASONS FOR GRANTING THE WRIT When the Ninth Circuit Court of Appeals held that respondent Joseph Slappy, an indigent criminal defendant, had a Sixth Amendment right to demand that deputy public defender Harvey Goldfine continue to represent him, it created a totally new Sixth Amendment right -- the right of continued repre- sentation. This giant stride is not supported by any decision of this or any other federal court. Indeed, it cuts across the grain and flow of the law, and is contrary to one of this Court's decisions. By creating this unprecedented right, the Ninth Circuit injected federal courts into the allocation by state public defender offices of their resources. Once the initial assignment of a deputy has been made, control of deputies is removed from state officials, 10. and effectively placed in the hands of indigent defendants and the courts. The distribution of scarce state legal resources has been put under federal management. The Ninth Circuit did not have to do this. The record shows, and the state trial court and the state Court of Appeal found, that Slappy asked for a continu- ance because, and only because, he Claimed assigned deputy public defender Hotchkiss was not prepared for trial. In fact, Hotchkiss was fully prepared. In its zeal to reach its issue and create its new right, the Ninth Circuit read into the first day's proceedings statements made by Slappy on the second and third days of trial. By so doing, the federal court not only misread the record, it did not give the deference to the state courts which this Court has commanded. ll. The Ninth Circuit decided to enforce its newly created right by requiring automatic reversal. No showing of pre- judice was required. This is a refusal to tailor the remedy to suit the wrong and also offends the basic thrust of this Court's decision in Chambers v. Maroney (1970) 399 U.S. 42 that belated appointment of counsel would not result in reversal per se. The Sixth Amendment is an evolu- tionary concept. Argersinger v. Hamlin (1972) 407 U.S. 25, 44 (Chief Justice Burger, concurring). Action by the federal Court of Appeals in this case, on these facts, is revolutionary rather than evolutionary. For these reasons, petitioner asks that a writ of cer- tiorari issue to restrain the Ninth Circuit. 12. ARGUMENT 1. In Gideon v. Wainwright (1963) 372 U.S. 335, this Court held that all indigent criminal defendants are entitled to the appointment of a lawyer to repre- sent them. Implementation of this man- date is a process uniquely suited to the individual states. The approach taken by many states to ensure the availability of counsel for indigents has been the estab- lishment of public defender offices. Given the increasingly heavy case loads such offices have been compelled to handle, many have found that a division of responsibility, with consequent speci- lization, is the most efficient method of utilizing their limited resources. Thus, some attorneys handle preliminary hearings, others motions and still others trials. See, e.g., Wice & Suwak, "Current Realities of Public Defender 13. Programs: A National Survey and Analysis,” 10 Crim. Law Bull. 161, 172-173 (1974). Laudable though the goal of providing continuous, sequential representation for each defendant by a _...3le deputy public defender may be, such a procedure is simply not feasible with present resources. The Ninth Carcuit's intervention in the state's determination of how best to allocate limited resources transfers to the federal courts supervision of a process in which local regulation and control is particularly appropriate. While claiming to defer to the gener- ally accepted rule that indigent criminal defendants may not demand representation by a specific attorney ,+/ the Ninth 4. See generally, Annotation, "Indigent Accused's Right To Choose Particular Counsel Appointed To Assist Him,” 66 ALR.3d 996. 14, Circuit nevertheless has effectively held that once a deputy public defender has been assigned to represent one indigent defendant, he may be required to handle the case at all stages, regardless of demands made by other indigents for him to represent them. In effect, once the initial allocation of a deputy public defender is made, that decision substan- tially removes any further control over allocation of deputies from the public defender, and transfers it to the defen- dants. Until now, no court which has considered the issue has held that a defendant may insist upon representation by a particular deputy public defender, See, e.g., People v. Stroble (1951) 36 Cal.2d 615, 226 P.2d 330; Maynes v. People (1972) 178 Colo. 188, 495 P.2d 551; People v. Cox (1961) 22 111.2d 534, 177 N.E.2d 211. Indeed, the 15. Ninth Circuit itself has recently recognized this proposition. See Greenfield v. Gunn (9th Cir. 1977) 556 F.2d 935. The Ninth Circuit's pre- ference in the Slappy opinion for con- tinuous representation by a single deputy public defender does not support the conclusion that such continuity is constitutionally compelled. 2. The Ninth Circuit manufactured the entire issue by choosing to read Slappy's initial complaint on the morn- ing of trial as a demand for Goldfine's services. In fact, the record on that date is totally bereft of any concern by Slappy other than with the amount of time Hotchkiss had had to prepare. Slappy's claim that Hotchkiss had only had the case for a day and a half was refuted on the record by Hotchkiss, who said he had had the case for six days, and was in fact prepared. 16. Slappy's first mention of Goldfine did not occur until the second day of trial, and it was only on the third day of trial, eleven days after Hotchkiss received the case, that Slappy refused to cooperate unless Goldfine represented him. It is clear from these facts that Slappy did not insist upon representation by Goldfine rather than Hotchkiss until all other ploys for delaying or obstructing the trial had failed. MThis was pointed out to the Ninth Circuit in the petition for rehearing. Not only did that court misstate petitioner's position by concluding in its amended opinion that "the state has not contended that Slappy was acting in bad faith," its holding failed to give proper deference to the contrary factual findings of the state trial and appellante judges. 17. Sumnec v. Mata (1981) ___—U.S. __, 101 S.Ct. 764, 66 C.Ed.2d 722. Clearly, if a trial judge is obli- gated to determine the availablity of a particular deputy public defender, there must be a sufficiently specific, and timely, objection by the defendant to the attorney assigned to his case, coupled with a demand that the sought- after deputy represent him. That did not happen in this case. Absent such warning to the trial judge, Slappy's Claimed right to a particular counsel must fail. Cf. Wainwright v. Sykes (1977) 433 U.S. 73, 91. 3. This Court has long recognized that the right to counsel includes the right to effective assistance of coun- sel. Powell v. Alabama (1932) 287 U.S. 45; Avery v. Alabama (1940) 308 U.S. 444, In Chambers v. Maroney (1970) 399 U.S.42 18. however, a case involving the last minute substitution of attorneys by the Legal Aid Society appointed to represent the defendant, the Court refused to fashion a per se rule of reversal in every case involving the belated appointment of coun- sel. 399 U.S. at 54. The Court of Appeals acknowledged the holding in Chambers, but effectively refused to follow it by finding that a failure to conduct an adequate inquiry into Slappy's demand for representation by a different deputy public defender effectively resulted in a denial of his right to counsel. The inquiry was inadequate only because the state trial judge did not Perceive the issue created by the Ninth Circuit's reading of the record. This is not a case where no counsel was provided to the defendant, nor where the court did something to prevent the 19. attorney from discharging his functions. The case does not involve an allegation that trial counsel's representation was ineffective. Indeed, this case does not even involve a substitution of counsel by the trial court; the decision to assign Hotchkiss to Slappy's case was made by the public defender. Rather, it involves a defendant who simply refused to cooperate with his attorney, and finally found in the Ninth Circuit a court gullible enough to elevate his recalcitrance to a constitutional prin- ciple. No decision by this Court, including those relied upon by the Ninth Circuit, >/ requires automatic reversal 5. Gideon v. Wainwright (1963) 372 U.S. 335; Geders v. United States (1976) 425 u.S. 80; Herring v. New York (1975) 422 U.S. 853; Glasser v. United States (1942) 315 U.S. 60, Powell v. Alabama (1932) 287 U.S. 45; Holloway v. Arkansas (1978) 435 U.S. i736. 20. of a conviction under such cir- cumstances. 9/ Unless the defendant can demonstrate that he was prejudiced, the refusal to grant his request that a par- ticular deputy public defender continue to represent him should not result in a reversal. The Ninth Circuit's per se rule places a premium on disruption and noncooperation by defendants. It further erodes the ability of the criminal justice system to fairly balance its Obligation to ensure all defendants a 6. The Court of Appeals decision is also inconsistent with the requirement of other circuits that prejudice be shown when counsel is substituted over the defendant's objection. See, e.g., United States v. Poulack (Ist Cir. 1977) F. 3; United States v. Joyce (2nd Cir. 1976) 542 F.2d 158; Williams v. United States (7th Cir. 1964) 332 F.2d - Indeed, there appears to be a conflict within the Ninth Circuit itself on this point. Compare Releford v. United States (9th Cir. 1961) 288 F.2d 298 with Majeske v. United States (9th Cir. 1959) F.2d 947. 21. fair trial, with its obligation to the general public to try, and punish, those persons guilty beyond a reasonable doubt of committing crimes, CONCLUSION The decision of the Court of Appeals represents an unprecedented and unwar- ranted departure from this Court's hold- ings on the Sixth Amendment right to counsel. The petition for a writ of certiorari should be granted. DATED: December 8, 1981 GEORGE DEUKMEJIAN, Attorney General ROBERT H. PHILIBOSIAN, Chief Assistant Attorney General-Criminal Division WILLIAM D. STEIN Assistant Attorney General W. ERIC COLLINS puty B46 General DANE R. GILLETTE Deputy Attorney General Attorneys for Respondent -xIpuaddy APPENDIX A Joseph D. SLAPPY, Petitioner-Appellant, Ve Paul John MORRIS, Warden, Respondent-Appellee. No. 79-2519. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 14, 1980. Decided June 29, 1981. Appeal from the United States District Court for the Northern District of California. Before GOODWIN, ALARCON and NEISON, Circuit Judges. ALARCON, Circuit Judge: Joseph D. Slappy, a California state prisoner, petitioned for a writ of habeas corpus alleging, inter alia, that in his state trial he was deprived of his sixth amendment right to counsel. The district court denied the petition. A-2 Because we find that Slappy was deprived of his sixth amendment right to counsel, we hold that the writ of habeas corpus should issue. PERTINENT FACTS Petitioner Slappy was charged by information in state court proceedings with rape, robbery, burglary, oral copu- lation, and false imprisonment. At Slappy's arraignment, the San Francisco public defender's office was appointed to represent him. Deputy Harvey Goldfine of that office represented Slappy at his preliminary hearing, and also conducted the investigation into Slappy's case. Slappy's trial was scheduled to begin on a Thursday. On the Friday pre- ceding trial, Deputy Bruce Hotchkiss, also of the San Francisco public defen- ders office, met Slappy at his jail cell, and advised him that he, Hotchkiss, would represent Slappy in trial. This A-3 change in representation was due to Goldfine's appendicitis attack. Hotchkiss again visited Slappy on the Tuesday before trial. On the day of trial, Slappy com- ~-..ned to the trial judge about the short amount of time between Hotchkiss’ assignment to Slappy's case and the trial. The trial judge interpreted this complaint as a motion for a continuance, and denied the motion. Slappy continued to insist that Hotchkiss had insuffici- ent time to prepare for trial. Hotchkiss, however, claimed that he was prepared. He explained the background of his assignment to the case, stating to the court that "Mr. Goldfine, who was to try this case, was operated on for appendicitis, that is how it was transferred." The trial judge did not inquire as to how long Goldfine would be incapacitated. A-4 Throughout the trial, Slappy refused to cooperate with Hotchkiss and i.isisted that Goldfine, not Hotchkiss, was his lawyer. Slappy was so dissatisfied with his representation that he continually interrupted the proceedings, insisting that his right to counsel was being infringea.* 1. For example, at one point in the trial the record shows the following occurred: THE DEFENDANT: Your Honor, I'm leaving that part up to you. I asked you may I be excused. If you don't want to excuse me, I'll sit right here. What difference does it make? THE COURT: Well, I would urge you then ir. Slappy to reniain seated and in the Courtroom, and should you desire to discuss this case further with your Counsel, why you certainly can let me know, or through you Counsel let me know. THE DEFENDANT: What do I have to say to get through to you, your Honor, what do I have to say to make you understand, I have told you two or three times, and then you keep telling me about talking to my Counsel. I don't have no attorney, I told you I don't have no attorney. (Footnote continued on next page.) A-5 Slappy was convicted of rob- bery, burglary, and false imprisonment. The jury was unable to agree on the rape and oral copulation charges and a mis- trial was declared on those charges. A second trial on the remaining charges began the next week, with Hotchkiss remaining as Slappy's counsel. Slappy continued to insist that Goldfine, Footnote 1 continued: My attorney's in the hospital, my attorney's name is Mr. P.D. Goldfine, Harvey Goldfine, that's my attorney, he's in the hospital. THE COURT: Well, I am going to ask you then under the circumstances, Mr. Slappy, to remain in the Court- room and to listen to the proceed- ings and listen to the progress of this case. THE DEFENDANT: That's up to you, that's up to you what you do, your Honor. If you say so I'll remain here, but I am not participating in the trial, I'm through with it, as of now I am through with this trial. I was through with it the 24th when this P.D. told me that I didn't have no defense from my charges. I was through then, and that's why I didn't see him when he come down to see me. A-6 not Hotchkiss, was his attorney. Com- munication between Slappy and Hotchkiss broke down to such a point during the second trial that Hotchkiss asked the court to remove him as counsel because he felt he could not render effective assis- tance in the face of such conflict. After a conference in chambers, Hotchkiss withdrew his motion. Slappy was ulti- mately convicted of rape and oral copula- tion in this trial. In both trials, Hotchkiss advised Slappy to testify. Slappy refused to testify in the first trial, and only decided to testify in the second trial after the jury was instructed. This request was denied by the trial court. Slappy's convictions were affirmed by the California Court of Appeal, and the California Supreme Court refused to grant a hearing. Slappy thereafter filed a petition for writ of habeas corpus in A-7 the District Court for the Northern District of California. The issues raised in the petition for habeas corpus were fairly presented to the California courts. DISCUSSION Slappy contends that the trial court's refusal to grant a reasonable continuance until his attorny, Harvey Goldfine, was well enough to represent Slappy at trial was a denial of his sixth amendment right to counsel. We recognize at the outset that an indigent defendant does not have an unqualified right to the appointment of counsel of his own choosing. See Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970). Sout cf. Harris v. Superior Court, 19 Cal.3d 786, 567 P.2d 750, 140 Cal.Rptr. 318 (1977) (under certain circumstances it may be an abuse of discretion not to appoint an attorney designated by an A-8 indigent). This is not a case of a defendant seeking to choose a particular attorney in the first instance. Here the trial court had appointed Harvey Goldfine to represent Slappy. Slappy was merely seeking a continuance of the trial date so that his attorney would be able to represent him at trial. The record Clearly establishes the fact that Slappy and Goldfine had entered into an attorney- Client relationship at least as of the time of the preliminary hearing. The right to counsel includes more than just the right to representa- tion by competent counsel at trial. This right would be without substance if it did not include the right to a meaningful attorney-client relationship.“ The 2. Recognizing the importance of the attorney-client relationship, courts and legislatures have instituted attorney- client evidentiary privileges to facili- tate communication between attorney and (Footnote continued on next page.) A-9 special nature of the attorney-client relationship was explained by the Alaska Supreme Court in McKinnon v. State: The attorney-client relationship involves "an intimate process of consultation and planning which culminates in a state of trust and confidence between the Client and his attorney." Often, the outcome of a criminal trial may hinge upon the extent to which the defendant is able te Footnote 2 continued: Client. See, e.g., J. Weinstein & M. Berger, 2 Weinstein's Evidence ; Baird v. Koerner, 279 F.2d 623, 629-30 (Sth Cir. 1960); Cal.Evid.Code §§ 950-955 (West 1980). These privileges, by protecting communications from the client to the attorney, facilitate com- munication. The existence of a privi- lege, however, conflicts with the objective of truth seeking. Despite this negative effect on the truth seek- ing process, the importance of open com- munication between client and attorney has resulted in the institution and acceptance of these privileges. A-10 communicate to his attorney the most intimate and embarassing details of his personal life. Complete candor in attorney- client consultations may disclose defenses or mitigating circum- stances that defense counsel would not otherwise have uncov- ered. At the very least, an open exchange between attorney and client will often foreclose the possibility of surprise at trial. McKinnon v. State, 526 P.2d 18, 22 (Alaska 1974) (Footnotes omitted). The attorney-client relationship is accorded special protection because of its impact on the truth-finding process. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court held that a defendant in a state court proceeding could not get a A-11 fair trial unless he had assistance of counsel at trial. But representation at trial is without substance if the defendant does not have confidence in his attorney's ability to represent the defendant's best interests. It is un- likely that a criminal defendant will have a legal education. He, therefore, will have to rely on his attorney's advice for the most basic decision in a criminal trial--whether to plead guilty, whether to testify, whether to present a defense, and which witnesses to call. If the defendant does not trust his attorney, he may be unwilling to follow his attorney's advice in these most important areas. Several appellate courts have found unconstitutional the trial court's failure to take measures to allow the defendant to continue at trial with his retained counsel. In Releford v. United A-12 States, 288 F.2d 298 (9th Cir. 1961), this court held that there was a denial of the right of counsel under the fol- lowing facts: The defendant had retained counsel (Kay) to represent him on crimi- mal charges. Kay became ill shortly before trial, and was expected to be unable to participate in trial for about two week. The trial court refused to grant a continuance to allow Kay to rep- resent the defendant at trial or to allow the defendant to secure a chosen substi- tute for trial. Instead, the judge forced the defendant to go to trial with a second, unwanted, attorney. The Ninth Circuit reversed the defendant's convic- tion, holding that the defendant had been deprived of his right to counsel because the trial judge refused to grant a con- tinuance. Similarly, in Gandy v. Alabama, 569 F.2d 1318 (5th Cir. 1978), the Fifth A~13 Circuit held that a habeas petitioner was deprived of his right to due process when the trial judce refused to grant a continuance or otherwise insure coun- Sel's presence. In Gandy, petitioner's retained counsel could not be present at the day of the scheduled trial because of a conflicting civil trial. The trial judge refused to grant a continuance, and forced another attorney on the peti- tioner. The Fifth Circuit, while noting that the decision to grant a continuance is generally vested in the trial judge's discretion, held that the refusal to grant a continuance in such circum- stances was so unfair as to deny the petitioner his right to due process. The Seventh Circuit, in United States v. Seale, 461 F.2d 345 (7th Cir. 1972), held that forcing a defendant to Proceed with unwanted counsel, when retained counsel was ill, was an abuse A-14 of discretion. The Seale court noted that the defendant should have been given a reasonable continuance to obtain the services of either his retained ccunsel, or some chosen substitute. We recognize that the cases dis- cussed above involved retained counsel. We see no reason to distinguish between appointed and retained counsel in the context of preserving an attorney-client relationship. We find ourselves in agreement with the California Supreme Court's statement in Smith v. Superior Court, 68 Cal.2d 547, 440 P.2d 65, 68 Cal.Rptr. 1 (1968), A superficial response is that the defendant does not pay his fee, and hence has no ground to complain as long as the attorney currently handling his case is competent. But that attorney- Client relationship is not that A-15 elementary: it involves not just the casual assistance of a member of the bar, but an inti- mate process of consultation and Planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the Client's life or liberty. F.i- thermore, the relationship is independent of the source of compensation, for an attorney's responsibility is to the person he has undertaken to represent rather than to the individual or agency which pays for the ser- vice. . .. It follows that once counsel is appointed to represent an indigent defendant - « « the parties enter into an A-16 attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to sub- ject that relationship to an unwarranted and invidious dis- Crimination arising merely from the poverty of the accused. Id. at 561-62, 440 P.2d at 74, 68 Cal. Rptr. at 10. See also Cuyler v. Sullivan, 446 U.S. 335, 344-45 & n.9, 100 S.Ct. 1708, 1716 & N.9, 64 L.Ed.2d 333 (1980) (no reason to distinguish between retained and appointed counsel when determining whether defendant received adequate representation). Because of the importance of the attorney-client relationship to the substance of the defendant's sixth amend- ment right to counsel, we hold that the sixth amendment (as incorporated by the A-17 fourteenth amendment) encompasses the right ko have the trial judge accord weight to that relationship in deter- mining whether to grant a continuance founded on the temporary unavailability of a defendant's particular attorney. In considering the continuance, the trial court must balance the defendant's constitutional right to counsel against the societal interest in the “prompt and efficient administration of justice." Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978). In the instance case, the trial judge failed to inquire as to the probable length of Goldfine's un- availability. In the absence of the information such an inquiry would have revealed, the trial judge could not engage in the balancing required to pro- tect defendant's rights. In refusing to grant a continuance, therefore, the A-18 trial judge violated Slappy's constitu- tional right to counsel.> Determining that Slappy was denied his sixth amendment right to coun- sel does not dispose of this claim; we must also determine whether this type of sixth amendment violation requires the defendant to establish prejudice before a writ of habeas corpus can issue. We con- Clude that prejudice need not be shown 3. We do not, of course, mean to imply that a continuance must be granted whenever a defendant's particular attorny is unavailable. What is required is that the appropriate balancing take place. See Ungar v. Sarafite, 376 U.S. 575, 589, B41, , 11 L.Ed.2d 921 (1964). Compare Gandy v. Alabama, 569 F.2d 1318, 1 - th Cir. 1978) (granting habeas petition because trial court's evaluation of fac- tors and reconciliation of values in refusing to grant a continuance was so arbitrary as to violate principles of due process) with Giacalone v. Lucas, 445 F.2d 1238 (6th Cir. 1971), cert. denied, 405 U.S. 922, 92 S.ct 960, 30 L.Ed.2d 793 (1972) (dening habeas petition based on conclusion that trial court's denial of continuance based on medically related absence of attorney was in accordance with due process). A-19 under these facts. In Releford v. United States, 288 F.2d 298 (9th Cir. (1961), this court stated: Apart from the question as to whether [the second attorney] had time to prepare, no actual prejudice was shown with respect to his participation in the trial as counsel for Releford. In our view, however, where there has been complete disre- gard of the defendant's right to choose his own counsel, preju- dice will be presumed. Id. at 302 (emphasis added). In another portion of the opinion, the court stated that the denial of the right to counsel under those facts "is reversible error regardless of whether prejudice is shown.” Id. at 301. A-20 © In holding that under these facts no showing of prejudice is required for reversal, we are acting consistently with Supreme Court and Ninth Circuit prece- dents. There are two lines of Supreme Court cases which deal with right of counsel: one holding that no showing of prejudice is required for reversal; the other requiring a showing of prejudice for reversal. This case fits within the former, not requiring a showing of prej- udice for reversal. These two lines of cases were dis- cussed, compared and distinguished in Cooper v. Fitzharris, 568 F.2d 1325, 1331-33 (9th Cir. 1978) (en banc) cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979). In Cooper, a habeas petitioner asserted that he received in- effective assistance of counsel based on defense counsel's acts and omission at trial. This court held that: “When the A-21 Claim of ineffective assistance of coun- sel rests upon specific acts and omis- sions of counsel at trial, as it does in this case, relief will be granted only if it appears that the defendant was prejudiced by counsel's conduct." Id. at 1331. As support for this statement, the Cooper court cited Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). In Chambers, a habeas petitioner alleged that a belated appearance of counsel resulted in his being rendered ineffective assistance of counsel. Specifically, he alleged that defense counsel failed to make certain suppression motions. The Supreme Court held that an inquiry into prejudice was warranted before reversal.‘ 4. In holding that prejudice is not required in the instant case, we are not ignoring the following language in Chambers: “But we are not disposed to (Footnote continued on next page.) A-22 In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976); Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975); Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and Footnote 4 continued: fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel. .. ." 399 U.S. at 54, 90 S.Ct. at 1982-1983. The instant case presents an unusual claim arising from a case of attorney substi- tution and a consequential belated appointment. The allegation here is not that the belated appointment prevented counsel from performing acts at trial resulting in effective assistance; the Claim is that the court, in not allowing a reasonable continuance, prevented coun- sel from fulfilling normal functions-- from forming and exploiting an attorney- Client relationship with defendant. The crux of Slappy's claim is that the court's actions denied him of his right: to counsel. Chambers is readily distin- guishable. Its language, therefore, does not suggest that we must require some showing of prejudice to justify a rever- sal in this case. A-23 Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932) and Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978), the Supreme Court held that, under the facts presented therein, prejudice was irrelevant when the right to counsel was denied. In these cases, either no counsel was pro- vided, or counsel was prevented by the court from fulfilling normal functions. In Gideon, no defense counsel was appointed. In Geders, the court prohib- ited counsel from consulting with his Client during an overnight, midtrial recess. In Herring, a state statute allowed the trial judge to prohibit defense counsel from making a summation. In Glasser, as in Holloway, the court required defense counsel to represent defendants with conflicting interests. In Powell, the court did not provide A-24 defense counsel with adequate opportunity to consult with defendants and prepare for trial. In reconciling these cases with Chambers, the Cooper court wrote: "When no counsel is provided, or counsel is prevented from discharging his normal functions, the evil lies in what the attorney does not do, and is either not readily apparent on the record, or occurs at a time when no record is made." 586 F.2d at 1332. The instant case is analo- gous to the Gideon-Geders-Glasser line of cases. The trial court's failure to con- sider adequately Slappy's attorney-client relationship when ruling on the continu- ance denied Slappy his sixth amendment rights to counsel. The second attorney's effectiveness at trial was irrelevant to the impact of the denial of the right to counsel. A-25 Slappy also contends that he was deprived of effective assistance of counsel because the trial judge refused to remove his attorney, Hotchkiss, after a showing of irreconcilable conflict. Because we reverse and remand on grounds mentioned above, it is unnecessary to reach the merits of this issue. Slappy's contention that he was denied due process because the trial judge refused to allow him to testify also has been renderd moot by our dis- position of the matter. The judgment is REVERSED. On remand, the district court may tem- porarily hold Slappy's petition in abeyance and shall grant the petition unless California authorities, within a reasonable period, not exceeding sixty days, grant Slappy a new trial. APPENDIX B UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSEPH D. SLAPPY, ) ) Petitioner-Appellant, ) No. 79-2519 ) v. ) QRDER ) cauu JOHN MORRIS, Warden, ) Filed ) October 19, Respondent-Appeliee. ) 1981 ) Before: GOODWIN, ALARCON and NELSON, Circuit Judges The Opinion filed on June 12, 1981, in the above-entitled case has been amended as follows: On the slip op. 3172, add the fol- lowing (such addition to follow the last Paragraph on said page 3172): The record clearly demonstrates the sincerity of Slappy's desire to be represented by Goldfine, and the state has not contended that Slappy was acting in bad faith. In con- cluding that Slappy was denied his B-2 sixth amendment right to counsel, we find it significant that there is nothing in the record from which it can be inferred that Slappy's request for a continuance was meti- vated by a desire to delay his trial for an improper purpose. We need not reach the question here of whether the same result would obtain if it were shown that the defend- ant's request for a continuance was made in bad faith. On the slip op. 3174, add the following Paragraphs just prior to the first full Paragraph on the second column of page 3174: "Our holding that Slappy need not establish prejudice is not incon- sistent with United States v. Veatch, 80-1567 (9th Cir. June 12, 198)). In Veatch, on the second and last morning of trial, one of the B-3 defendant's three lawyers received word that his father died during the night. The defendant moved for a continuance so that the attorney could return home and make the nec- essary arrangements. The district court denied the motion. The attor- ney decided to remain at trial and participated in the closing argu- ments. On appeal, the defendant contended that the denial of the continuance required reversal of the conviction. The circuit court dis- agreed, stating that "“[a]ctual prej- udice to the defendant must be shown before the denial of a continuance will be reversed.” Id., slip op. at 2846. In the instant case, however, the question is not whether the district court properly denied a continuance. Rather, the question B-4 here is what inquiry a trial court judge must make before ruling on a continuance motion. We have held that because the attorney-client relationship is so important to the right to counsel, it must be accorded weight in the trial judge's decision as to whether to grant a continuance. If a trial court does not attempt to ascertain the length of continuance necessary to insure counsel's presence at trial, and the attorney with whom the defendant has an attorney-client relationship does not appear at trial, then the defen- dant has been deprived his or her right to counsel. The conviction must be reversed, irrespective of any showing of prejudice. Veatch is distinguishable in that the attorney remained at trial and therefore the av.:corney-client B-5 relationship was not affected by the denial of the continuance. Also, in Veatch, it is not apparent from the opinion whether the court ascer- tained the length of continuance necessitated because of the death of the attorney's father. The panel as constituted above has voted to deny the petition for rehearing and ing the and to reject the suggestion for rehear- en banc. The full court has been advised of suggestion for rehearing en banc, has been further advised of the amended opinion, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed, R. App. P. 35(b). The petition for rehearing is denied and the suggestion for rehearing en banc is rejected. APPENDIX C IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT, DIVISION FOUR THE PEOPLE, Plaintiff and Respondent, 1/Crim 16217 vs. (Superior Court JOSEPH DAVID SLAPPY, No. 92747) Defendant and Appellant, Filed Jan. 25, _f 1978 Joseph David Slappy appeals from judgments of imprisonment which were rendered after jury trials resulted in verdicts finding him guilty of rape (Pen. Code, § 261.3), second degree burglary (Pen. Code, § 459), second degree robbery (Pen. Code, § 211), oral copulation (Pen. Code, § 288a) and false imprisonment (Pen. Code, § 236). Appellant accosted the victim in a liquor store and was ordered by the manager to leave, When the victim later left the store, she saw that appellant was waiting outside. She got free from C-2 him briefly but when she entered her apartment nearby, appellant was waiting in the lobby. Appellant forced her into the basement of the building, where he committed the offenses mentioned above. Finally, the victim escaped from appellant. She immediately gave a description of appellant to the police. Appellant was captured two blocks away. Earrings and other jewelry belonging to the victim were found on his person. Appellant contends, citing People v. Marsden (1970) 2 Cal.3d 118, that it was an abuse of discretion for the court to decline to substitute new counsel for appellant in place of the deputy public defender who represented him in both trials. It is claimed that relationships between appellant and his counsel had broken down, to the point that communica- tion was impossible and appellant was, as a result, deprived of effective C-3 assistance of counsel (citing People v. Williams (1970) 2 Cal.3d 894). No con- tention is made that defense counsel was incompetent or unprepared. The record does indicate that appellant's conduct at trial was refractory and inappro- priate. But his own misconduct and failure to cooperate adequately with counsel does not establish entitlement to appointment of new counsel (People v. Walker (1976) 18 Cal.3d 232.) Appel- lant's real object at trial apparently was that he preferred to be assisted by another deputy public defender who had Originally been assigned to the case but had been relieved in order to have surgery for appendicitis. Appeilant told the court: "I'm happy with the public defender, but it's just no way, no possible way, that he has had enough time to prepare this case." But the c-4 deputy who had been substituted repre- sented to the court that he was ready for trial. He participated vigorously and appropriately in the defense of the action and there is no indication that he was unprepared or incompetent. There- fore, it was not an abuse of discretion to decline to appoint other counsel. Appellant contends that it was error for the court to refuse to allow him to testify. The request was not made until after arguments and instructions, at a time when the jury was about to leave the courtroom to commence deliberating. At a reported hearing in chambers, it was established of record that appellant had earlier rejected the advice of his attor- ney that he should testify. The question whether a party should be allowed to re- open a case for the presentation of more evidence after counsel have argued is left to the sound discretion of the trial C-5 judge. (People v. Newton (1970) 8 Cal. App.3d.359, 383.) Where appellant had earlier refused to testify, it was not an abuse of discretion to decline to re- open the case for taking his testimony. Appellant contends that the court should have granted a motion made by defense counsel to have the jury view the entrance of the victim's apartment. The trial judge has discretionary power to determine whether to order a view. (People v. Wheeler (1971) 23 Cal.App.3d 290.) Here, there was substantial show- ing that a view of the entryway would assist the jury to understand the testi- mony. As the trial court appropriately observed, photographs were in evidence that clearly showed the area in ques- tion. It was not an abuse of discretion to deny the motion for a view of the scene. Cc-6 Affirmed. Christian, J. We concur: Caldecott, P. J. Ragan, J. APPENDIX D IN THE UNITED STATES DISTRICT COURT FOR THE, NORTHERN DISTRICT OF CALIFORNIA JOSEPH D. SLAPPY, No. C-78-0796 ) ) Petitioner, ) RFP Vv. ) ) Filed Parry, JOHN MORRIS, ) December 7, waLruen, Folsom State ) 1978 Prison, ) ) MEMORANDUM Respondent. ) AND ORDER ) In 1976 petitioner, Joseph D. Slappy, was charged with rape, burglary, robbery, Oral copulation, and false imprisonment. When he was arraigned on the information, the San Francisco Public Defender's Office was appointed to represent him. The preliminary hear- ing and investigation of the case were handled by Deputy Harvey Goldfine. Shortly before trial, however, Goldfine was operated on for appendicitis, and the case was reassigned to Deputy Bruce Hotchkiss. Although Hotchkiss assured the court that he had had adequate time D-2 to prepare for trial, petitioner was con- vinced that Hotchkiss had not had time to prepare. Petitioner refused to cooperate with Hotchkiss, insisting that his attor- ney was Goldfine and not Hotchkiss. Following a trial in the Superior Court for the City and County of San Francisco, petitioner was convicted of second degree burglary, second degree robbery, and false imprisonment, but the jury was hung on the other two charges, as to which a mistrial was declared. A second jury convicted petitioner of rape and oral copulation. Petitioner, who is in the custody of the California Depart- ment of Corrections, now petitions this court for a writ of habeas corpus, alleg- ing that he was denied his right to assistance of counsel and the opportunity to testify. As his principal ground for relief, petitioner alleges that a substitution of D-3 counsel should have been ordered and that he was denied his right to assis- tance of counsel. It is clear from the record that petitioner's complaint is not that Hotchkiss was incompetent but rather is that Hotchkiss was assigned to the case only a few days before peti- tioner's first trial commenced and that petitioner wanted to be defended by Goldfine. Both of these objections are without merit, however. Hotchkiss assured the court before the first trial commenced that he had had adequate preparation time. He also had three days (including a weekend) between the conclusion of the prosecu- tion's case and the presentation of the defense's case and a week between the first and second trials. The record supports the trial judge‘s conclusion that Hotchkiss had adequate time to D-4 prepare for the trials and that he pre- sented an able defense despite peti- tioner's lack of cooperation with him. Petitioner's suggestion that he should have been represented by Goldfine is likewise not persuasive. While a defendant's choice of counsel should not be subject to unnecessary interference, the right to pick a particular attorney is not unlimited. United States v. Vargas-Martinez, 569 F.2d 1102, 1104 (9th Cir. 1978). A defendant may not insist upon substituting another attorney if that will delay or obstruct reasonable court procedure. See, e.g., Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir. 1978); United States v. Poulack, 556 F.2d 83, 86 (lst Cir.), cert. denied, 434 U.S. 986 (1977). In this case, it was not un- reasonable to conclude that the efficient administration of justice required that petitioner be represented by Hotchkiss D-5 rather than by Goldfine after the latter had fully recovered from his surgery. Petitioner also alleges that he was denied the opportunity to testify. The record shows, however, that petitioner refused to testify at his first trial despite his attorney's request that he Go so and that petitioner had the oppor- tunity to testify at his second trial but did not ask to do so until after the jury instructions had been given. While a defendant has a fundamental right to testify at his trial in California, People v. Robles, 2 Cal.3d 205, 215, 466 P.2d 710, 85 Cal.Rptr. 166 91970), this privilege “must be claimed or it is waived." United States v. Ives, 504 F.2d 935, 939 (9th Cir. 1974), vacated mem., 421 U.S. 944 (1975), rein- stated on this point, 547 F.2d 1100 (9th Cir. 1976), cert. denied, 429 u.S. 1103 (1977). The privilege to testify may be D-6 waived by the conduct of the defendant. Id. at $41. In light of defendant's opportunities to testify and his conduct during the second trial, the trial judge did not abuse his discretion by refusing to allow petitioner to testify after the jury instructions had been given. For the foregoing reasons, the peti- tion for writ of habeas corpus is denied. IT IS SO ORDERED. Dated: December 6, 1978 ROBERT F, PECKHAM (signed) United States District Judge APPENDIX E IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JOSEPH D. SLAPPY, No. C-78-0796 — — Petitioner, RFP Vv. ) Filed PAUL JOHN MORRIS, ) December 7, Warden, Folsom State ) 1978 Prison, ) ) JUDGMENT OF Respondent. ) DISMISSAL ) The petition for habeas corpus having come before the court, the Honorabale Robert F. Peckham, District Judge, presiding, and the issues having been presented, and a decision having been duly rendered, It is ordered and adjudged that: The petition for writ of habeas corpus is hereby denied and the action dismissed. IT IS SO ORDERED. Dated: December 6, 1978 ROBERT F. PECKHAM (signed) United States District Judge xpuadly yop No. 81-1095 IN THE SUPREME COURT OF THE UNITED STATES — OCTOBER TERM, 1981 JOHN PAUL MORRIS, Warden, Petitioner, Vv. JOSEPH D. SLAPPY, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit —— — \| | — JOINT APPENDIX GEORGE DEUKMEJIAN, Attorney General ROBERT H. PHILIBOSIAN, Chief Assistant Attorney General--Criminal Division WILLIAM D. STEIN Assistant Attorney General W. ERIC COLLINS Deputy Attorney General DANE R. GILLETTE Deputy Attorney General 6000 State Building San Francisco, CA 94102 Telephone: (415) 557-1475 Attorneys for Petitioner MICHAEL B. BASSI A Law Corporation 605 Market Street Suite 900 San Francisco, CA 94105 (415) 546-1155 Attorney for Respondent ————— PETITION FOR CERTIORARI FILED DECEMBER 11, 1981 CERTIORARI GRANTED MARCH 29, 1982 1. CHRONOLOGICAL LIST OF RELEVANT DOCKET FILES September 28, 1976 -- Conviction of second degree burglary (California Penal Code section 459), second degree robbery (California Penal Code section 211) and false impris- onment (California Penal Code section 236) by jury in the Superior Court of California, City and County of San Francisco, September 29, 1976 -- Jury hung on two other charges and aé- mistrial declared. October 7, 1976 -- Conviction of forcible rape (California Penal Code section 261.3) and forcible oral copulation (California Penal Code section 288a) by jury. October 20, 1976 -- Abstract of Judgment filed reflecting sentence to California State Prison for the term 2. prescribed by law on first three convictions. October 28, 1976 -- Abstract of Judgment filed reflecting sentence to California State Prison for the term prescribed by law on remaining two convictions. January 25, 1978 -- Affirmance of the judgments of conviction by the California Court of Appeal, First Appellate District, 1/Crim. 16217. March 23, 1978 -- Denial of petition for hearing by the California Supreme Court. April 12, 1978 -- Petition for Writ of Habeas Corpus filed in United States District Court for the Northern District of California. May 31, 1978 -- Supplement to Petition for Writ of Habeas Corpus filed. August 22, 1978 -- Order to Show Cause filed. 3. September 11, 1978 -- Return to the Order to Show Cause filed. September 22, 1978 -- Traverse to the Return filed. December 7, 1978 -- Memorandum and Order denying Petition for Writ of Habeas Corpus filed. December 7, 1978 -- Judgment of Dismissal filed. December 19, 1978 -- Application for Certificate of Probable Cause to Appeal filed. December 21, 1978 -- Order granting Certificate of Probable Cause to Appeal filed. January 30, 1979 -- Motion for appoint- ment of counsel on appeal filed in the United States Court of Appeals for the Ninth Circuit. April 21, 1979 -- Order granting Motion for Appointment of Counsel on Appeal filed. June June 17, 1979 -- Appellant Slappy's Opening Brief filed. 26, 1979 -- Appellee's Brief filed. May 14, 1980 -- Matter argued and June July submitted before Judges Goodwin, Alarcon and Nelson. 29, 1981 -- Opinion and judgment entered reversing the District Court judgment and remanding to the District Court to hold the Petition in abeyance and grant it unless California authorities granted appellant a new trial within 60 days. 13, 1981 -- Petition for Rehearing and Suggestion for Rehearing En Banc filed. October 19, 1981 -- Order amending opinion, denying rehearing and rejecting a rehearing en banc filed. October 22, 1981 -- Motion for Stay of Mandate filed. 5. November 5, 1981 -- Order granting Stay of Mandate until November 21, 1981 filed. November 16, 1981 -- Motion for addi- tional stay of mandate filed. November 30, 1981 -- Order granting additional stay of mandate until December 21, 1981 filed. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO THE PEOPLE OF THE STATE OF No, 92747 CALIFORNIA, Plaintiff & Respondent, vs. JOSEPH DAVID SLAPPY, Defendant & Appellant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) REPORTER'S TRANSCRIPT Before HONORABLE HARRY W. LOW, JUDGE, San Francisco, California, September 23, 1976 through September 28, 1976 APPEARANCES: For the People: Joseph Freitas, Jr., District Attorney By: Robert Dondero Assistant District Attorney For the Defendant: Robert Nicco, Public Defender By: Bruce Hotchkiss Assistant Public Defender 7. [1] THURSDAY, SEPTEMBER 23rd, 1976, 3:15 p.m. [5] THE DEFENDANT: That is why I say in the first place I only have this P.D. for a day and a half, we have not had time to prepare this case. He came in Tuesday night, last Tuesday night was the first time I saw him was Tuesday night, this past Tuesday night, and today is Thursday. We have not had enough time to prepare this case. THE COURT: Do you want to present any evidence challenging the fact that you were convicted of a robbery in 1973, or do you want to give up the right to challenge that at this time? THE DEFENDANT: I don't -- I want this case represented properly, this case, now this present case, this is the case I am interested in. THE COURT: I understand your request, but any continuance will be denied in this matter, Mr. Slappy, I have been informed by the District Attorney and the Public Defender in this case, this case has been assigned to Mr. Hotchkiss since last Friday, he's investigated the case, studied it -- THE DEFENDANT: Right your Honor, excuse me, he was assigned last Friday, but I never got a chance to -- he never interviewed me until the next week, the following Tuesday he came up, this past Tuesday was the first time. He said he was busy and he couldn't make it up there. He only been on this case one day {6] and a half your Honor, he can't pos- sibly have had enough time to investigate all these things in this case. Some of the major issues have not been investi- gated. It's impossible for him to have time enough to take care of this case to represent this case properly, the way it should be represented. My life is at stake, I am the one on trial, ain't nobody to be responsible for serving time for me, I am the one. THE COURT: Well, I examined the preliminary hearing transcript and I am satisfied that the Public Defender's Office has very adequately represented you up to now. I am confident from the assurances that have been given to me partly by Mr. Hotchkiss and by the District Attorney that an able and ade- quate defense can be presented for you. I am not going to grant you a con- tinuance. Mr. Slappy, as to the prior convictions here alleged that you were convicted of these two prior felonies, do you want to give up your right to question and cross-examine any evidence that the District Attorney might present saying that you were convicted in 1968 and 1973? 10. THE DEFENDANT: I don't want to give up my rights, no I don't. THE COURT: Before you do say that, Mr. Slappy, I want you to understand that if you want to question that evidence, then the Jury will hear the fact that you possibly were convicted of these two prior felonies. THE DEFENDANT: That's right, alright, they can hear it, that's okay, that's right. THE COURT: Do you want to discuss this with your client a little more and we could take this up tomorrow morning? [7] MR. HOTCHKISS: Yes your Honor. THE COURT: Perhaps we ought to do that. MR. HOTCHKISS: There are certain other matters I would like to present, your Honor. Mr. Slappy stated his posi- tion, his feelings. I would only state this for the record. I did speak with ll. Mr. Slappy on Friday and based upon the state of the case, the investigation that has been done, I feel that I am prepared. My own feeling is that a further continuance would not benefit me in presenting the case. That is based upon, and again for Mr. Slappy's bene- fit, that is based upon the file as I received it from Mr. Goldfine, and the investigation that had been done pre- viously. Mr. Slappy has indicated to me that he desires a Jury view, I think this is something that should be deve- loped later, he desires a Jury view of the premises. I think it will become obvious during the trial what we are talking about, 120 Ellis Street. I would concur in that and I do intend to make that motion when it is appropriate. That is the only comment I have. One other thing by way of background. Mr. Goldfine, who was to try this case, was 12. operated on for appendicitis, that is how it was transferred. THE DEFENDANT: Your Honor, let me say this sir, I appreciate it. I'm satisfied with the Public Defender, but it's just no way, no possible way, that he has had enough time to prepare this case. There is no way a day and a half, there is no way. Some of the major issues have not been investigated. That is why if you just going to push me on anyway like that, there is nothing I can do but just let you push me. At least I'd like for the Jury to go the scene where this incident took place, go [8] inside and look at the place. MR. HOTCHKISS: I would concur with Mr. Slappy's request, I think it's valid, and I believe we'll present evidence that will convince the Court of that. MR. DONDERO: For the record, your Honor, I should state I have a couple of 13. weeks ago gone down to the scene of some of the incidents, talked to some wit- nesses who indicated to me they were interviewed by an investigator from the Public Defender's Office, some of them 3 or 4 times at least way before two weeks ago. I submit that the Public Defender apparently has had investigators out there, they have talked to the owner of Lambo's, they have talked to the grocery store people, talked to several people in this case 2, 3, and 4 times. I sub- mit they have prepared issues that were presented by Mr. Slappy to them at the early presentation of the case. {70} THE DEFENDANT: I object sir, your Honor, I object. Everytime he asks a question he answers it. Let's let the witness answer the question. Ask her direct, ask her a question, and then she can give a direct answer yes or no. 14, Don't anticipate her, let her answer the question. THE COURT: Mr. Slappy, you have no standing to object and your Counsel -- THE DEFENDANT: I have got no Gefense counsel, this man has only been on this case a day and a half, I don't know what he's doing. MR. DONDERO: If the Defendant per- sists, I am going to ask he be physically removed as being disruptive of the Court proceedings. MR. HOTCHKISS: I object to that, your Honor. THE COURT: I want to warn you, Mr. Slappy, if you do persist in this activ- ity I will have to remove you. I would appreciate it and it would be to your benefit -- THE DEFENDANT: Yes, I am trying to. [71] THE COURT: Please keep quiet and you will have full opportunity to 15. discuss this matter with your attorney. Ladies anc gentlemen, once again please disregard the statements that have been made, and they are cert ‘nly not under Oath, and the accuracy of those state- ments are not to be considered by you in anyway. Mr. Hotchkiss, would you kindly proceed. [79] FRIDAY, SEPTEMBER 24, 1976, 11:05 a.m. (The District Attorney, Counsel for the Defendant and_ the Defendant were present. The following proceedings were had out of the presence of the Jury.) THE COURT: Let the record show we are in open court out of the presence of the Jury. Mr. Slappy wishes to make a Statement to the Court. Mr. Hotchkiss do you have any objection to his doing s0? 16. MR. HOTCHKISS: As long as, I assume you are not going to talk about the facts of the case. THE DEFENDANT: The Judge said I could make a statement. MR. HOTCHKISS: I have no objection to Mr. Slappy making a statement as long as he does not discuss the facts. It is my understanding that Mr. Slappy has not told me what he wants to discuss with the Court. Just from my brief conversation with him, it is my understanding he wants to discuss his feelings about Counsel. That I have no objection to. I think he was every right [80] to do that. I would advise Mr. Slappy if he discusses the facts of the case, I would advise him not to discuss the facts of the case. THE COURT: Alright, go ahead Mr. Slappy. THE DEFENDANT: Your Honor I am merely saying as I told you, as I told 17. you before, this P.D. only had -his case one day and a half, and there's no way he could pessibly have had time to pre- pare this case, no way. It's just, it's not fair, your Honor, it's just not fair. I'm being tried, I have feelings just like everyone else have, I don't have representation here, I am not qualified to represent myself, and I know I'm not. I need Counsel. THE COURT: Well, I would say to you once again, I have known Mr. Hotchkiss in the Public Defender's Office for prob- ably all of his career in the Public Defender's Office, having sat in the Court for more than 9 years, almost 10 years. THE DEFENDANT: That's not what I mean. THE COURT: I have every confidence in Mr. Hotchkiss. 18, THE DEFENDANT: I don't mean he's not a good P.D., I don't have anything against him. It's just that he didn't have time to prepare the case, one day and a half. THE COURT: He tells me that this case was assigned to him last Friday, a week ago, and he read the transcript, that the case was well prepared by Harvey Goldfine who is also a very capable Assistant Public Defender, and who I have known for substantially all his career in the Public Defender's Office. When Mr. Hotchkiss makes a representation that he has prepared the case, reviewed all the matters, obtained the pictures, and other items that he intends to produce into evidence, I have no reason [81] to dispute, doubt that. THE DEFENDANT: Yes sir. THE COURT: I am satisfied in the way the case im progressing’ that 19. Mr. Hotchkiss is doing a more than ade- quate job, a very fine job. I think that maybe a matter that you are con- cerned about is that he didn't see you until about a day or two ago, or two or three days, but that is one phase of the preparation of the case, so I would urge you to cooperate with your Counsel as much as possible, and if this case extends beyond the weekend, as it cer- tainly appears it will, there will be a three day period of time, and perhaps additional things you wish done can be considered and examined and might even be done if that is necessary. I would certainly urge you to cooperate with your Counsel. THE DEFENDANT: I am trying to your Honor. We've got to be together, we've got to be together, that's the thing. As far as Mr. Goldfine, I haven't seen Mr. Goldfine in five weeks. I saw him 20. twice, I haven't seen him in five weeks, and last Friday Mr. Hotchkiss comes up and introduces himself to me and tells me that he would be back the following Monday to go over my case with me, because we were suppose to start trial the following Thursday. I didn't see Mr. Hotchkiss until Tuesday night. He told me that he was busy and he couldn't get there. Now, that only left him, your Honor, one day and a half to prepare my case, one day and a half, and there is no possible way he could prepare this case in a day and a half. There's some major things that have not been investigated. That is why, your Honor, I would like very much for the Jury to go on the scene and investigate that place, It's only fair. I'd like to go with them. [82] THE COURT: Do you have anything further? 21. MR. HOTCHKISS: Your Honor, I would like to make a brief record and state for the record, it is true I received the case Friday. I recall telling Mr. Slappy I would see him the following Monday in Court. I don't recall, I may very well have, I don't believe I told him I would see him Monday except in Court, which I did. I did see him Tuesday morning -- no, Tuesday afternoon when I discussed the case with him from possibly a little after 1:00 until abcut 4:20. Then on Wednesday I talked with him, if I recall correctly, Wednesday morning, and late Wednesday afternoon. That is my recollection, Mr. Slappy, I am not absolutely positive. The point I want to make is to protect Mr. Slappy's record, when I announced I am ready, I feel I am ready. Mr. Goldfine did volu- minous investigation in the case. My feeling is that all investigation that 22. needed to be done and that should be done and quite possibly that could be done has been done. To protect Mr. Slappy the investigation -- the memorandum of inves- tigation is in the file and will remain in the file. I don't intend to lose this case, but if I do I think that ought to be opened to the Appellate Court. When I announce ready, my position was that all I had to do to prepare this case for trial was to come in and familiarize myself with the material that was in the file, to prepare myself with the material that was in the file, to prepare myself for the cross-examination of the prosecu- tion witnesses. I anticipated having the weekend free and I believe that anticipa- tion is correct, to go over and discuss with Mr. sieser both his direct and cross-examination. To that extent, to the extent that I would have to put Mr. Slappy on the stand this afternoon, I 23. would not be prepared. I do anticipate and i [83] did anticipate and I announced ready on the assumption I would have the whole weekend to go through the neces- sary things that I would have to do to put Mr. Slappy on the stand and to pre- pare him both for direct examination and cross-examination. Therefore when I did announce ready, it was when the idea I was concentrating on familiarizing myself with the case and this would be both with Mr. Slappy's view of the case, and to cross-examine the prosecution's witnesses. I do think Mr. Slappy for the record, to make it in a nutshell, by announcing ready, it was based upon the file. As I say I don't anticipate on losing but if I should lose the file would be available. THE DEFENDANT: As I was saying, your Honor, there is no possible way 24. that my P.D. could be prepared for this case, there is just no way, no possible way. When he come up Tuesday afternoon, he never went over the case with me. He did do one thing for me, I appreciate it, he said he would go get my clothing, he did that, I appreciate it, but now Mr. Harvey Goldfine was my attorney, he was my attorney, and he still is. I haven't seen him in five weeks because he's in the hospital. Mr. Harvey Goldfine didn't even have time enough to go over my case with me, he didn't even have time. Then five weeks ago I saw Mr. Harvey Goldfine. Then at the last day before trial Mr. Hotchkiss comes up and tells me he's my attorney. He hasn't had any kind of way at all to prepare this case, he hasn't had any kind of way at all to prepare this case, he hasn't been on the scene, he hasn't investigated anything, he 25. hasn't gone over anything with me or nothing. THE COURT: As I say there will be additional time Saturday, Sunday, and Monday morning. We'll resume this case on Tuesday. We'll continue to proceed, and I urge you to cooperate with your Counsel, and I also urge you to do it in a manner that will not possibly offend the Jury, because I think when you do interrupt, the Jury loses tract, and they may take the matters in an adverse way and that would not be beneficial to your case. THE DEFENDANT: I'm sorry, your Honor. THE COURT: I do appreciate your emotional involvement in this case, Mr. Slappy. It's a difficult thing for everyone involved in the case. I'm sure it's difficult for the Jurors, the wit- nesses, and the members of the Court. We all try to control ourselves. It will be to your advantage to do so in this matter. You will have additional time this weekend. I again urge you to work as closely as you can with your attorney. THE DEFENDANT: Yes sir. The only way he represents me, and I know we are suppose to be together, but the only thing, your Honor, when you ask the vic- tim a question, let her answer instead of him answer. I notice several times it looked like he was doing the answering, he anticipated her, he wouldn't let her answer the question. Half the time I couldn't even hear what she was saying. THE COURT: If you can't hear you certainly should let Counsel know. THE DEFENDANT: He's my P.D., he's for me or against me, he's suppose to be for me. THE COURT: Counsel was trying to Marrow the answer, one of the best tech- 27. niques of cross-examination is to narrow the answer so the witness cannot go on and give an expansive answer. I think this was the purpose of your Counsel's questions and that certainly is a good trial technique. Perhaps he will explain to [85] you more the reason for his very narrow questioning of this witness. It certainly appears to be a good method, a proved method that would work to your benefit, Mr. Slappy. MR. HOTCHKISS: I would like to make one short comment. I did go to the scene and I did discuss the scene with Mr. Slappy. THE DEFENDANT: No sir, you haven't discussed no scene with me. You told me you had not been over there. I am not going to stand up here and let you tell me that you told me you hadn't been ever to the scene, and you haven't discussed it with me. 28. THE COURT: Let me urge you again to cooperate with your Counsel. [151] TUESDAY, SEPTEMBER 28, 1976, 9:30 a.m. (The following proceedings were had out of the presence of the Jury.) THE COURT: Let the record show we are in open court out of the presence of the Jury. Mr. Slappy has asked that he address the Court, and Mr. Slappy you are welcomed to do so. I mentioned this already to both Counsel, and they have told me that you wanted to address the Court. There has been no objection by either Counsel, you are privileged to do so. THE DEFENDANT: Your Honor, I have here a petition, a Writ of Habeas Corpus against this Court. THE COURT: Do you want to file it, is that what you want? 29. [152] THE DEFENDANT: I want to file it. THE COURT: Fine. Will you take it then. THE CLERK: Yes. THE COURT: Would you like to say anything in support of it? THE DEFENDANT: Oh yes. On the grounds that my attorney's in the hospital, and I don't legally have no attorney, and this P.D. here told me, this P.D., Mr. Hotchkiss, Bruce Hotchkiss, told me I didn't have no defense to my charges. THE COURT: Well -- MR. HOTCHKISS: I didn't make that statement, your Honor. THE DEFENDANT: Then he told me that if I wanted to I could represent myself, and I told him I wasn't qualified to represent myself. 30. MR. HOTCHKISS: I didn't make that statement, your Honor, Friday I believe, I told him he had a constitutional right to represent himself. THE COURT: Well, Mr. Slappy, this is a matter that we did discuss last week, and there appears to be nothing new that has been added to what your claims are at this time. As I stated to you previously this case was well prepared, the Public Defender's Office reviewed the entire file, sent out its investi- gators, Mr. Hotchkiss is a senior trial attorney in the office, and has repre- sented that he is prepared to proceed, had three days between the conclusion of the People's case and the Defense case, and there was adequate time to do further investigation to prepare for this case. A good deal of this case is one of credit- ability [sic], [153] creditability [sic] of the complaining witness, the alleged 31. victim in this case, and your credit- ability [sic] in this matter, which I gather is one of your defenses. So your request of a Writ of Habeas Corpus is denied, and it is our intentin to con- tinue in this case, Mr. Slappy, and once again I would urye you to cooperate with your Counsel and assist him in anyway you can. THE DEFENDANT: Your Honor, I'd like to have a copy of this writ. If you want to have the trial you just take it and go ahead and do what you want to do with it. I would ask at this time to be excused, I would like to go back to my cell. I would like to have a copy of that writ. THE COURT: Well, you certainly can get a copy of the writ. We'll see that one is made and returned to you showing the file stamp. With respect to your desire not to participate in this case 32. any further, before you make that final decision, I would urge you to consider it carefully, discuss it with your Counsel. THE DEFENDANT: I don't have any Counsel, I just got through telling you, I don't have no Counsel. My attorney's in the hospital, you know, he's in the hospital. THE COURT: Is there any comment that you would like to make Mr. Hotchkiss? MR. HOTCHKISS: Your Honor, here's the situation I'm in. As I indicated to the Court on Friday, I had announced ready based upon the facts, in my review of the file I felt that I could prepare the case, prepare myuself for cross- examination of prosecution witnesses, and had anticipated having the weekend to go over with Mr. Slappy both his direct and cross-examination. In [154] light of what was developed through the prosecu- tion's case, and over the weekend, and 33. I had anticipated having the weekend available when I announced ready for trial on Thursday, over the weekend I went to see Mr. Slappy on Saturday, and he refused to see me on Saturday. I again went to see him Monday morning, he against refused to see me. I spoke with him in the holding cell this morning and asked him what he wanted to do, and he indicated, he said he would let me know when he got into Court. I feel that's necessary, and the whole theory of Mr. Slappy's case, based upon my discussion with Mr. Slappy, the theory of his case Gepends and hinges greatly upon him taking the witness stand. Because I have been unavailable or have not had the opportunity to talk with him, I am not ready to put him on the witness stand. I don't know if he wants to take the witness stand or not. That's sort of the position I'm in. 34. THE DEFENDANT: Your Honor, let me say this just one more time, maybe I can make myself clear. On or about the 24th day of September, last week, Mr. Bruce Hotchkiss told me that I didn't have no defense for my charges. MR. HOTCHKISS: That is incorrect, I didn't make that statement. THE DEFENDANT: That's it. I am asking you sir may I be excused, you can take the trial and continue to do what you want to do with it, just excuse me. I'm ready to go back to my cell. MR. HOTCHKISS: May I just for the record, I have never told Mr. Slappy he had no defenses to the charges. I have always proceeded along the lines of the Gefense as outlined to me by Mr. Slappy. [155] THE COURT: I'd like to look at this one Code Section 1043. Would you get that for me. Is there anything the District Attorney wishes to comment upon? 35. MR. DONDERO: Not at this time your Honor. I think Mr. Hotchkiss being an Officer of the Court has made certain representations. I think the record is Clear he had the time to prepare, he's Gone an adequate cross-examination of the witnesses, based upon the suggested line of defense of the opening state- ment, and I think in view of the record that the representations Mr. Hotchkiss made are correct and accurate. The Defendant I don't think has admitted he is capable of representing himself. By his own admission he is not able to do so. Mr. Hotchkiss is the attorney representing the Defendant. THE COURT: I take it Mr. Slappy if we are to proceed in this case that you intend to not take the witness stand? THE DEFENDANT: Your Honor, I already told you, I repeat, I have told you I'm through, I am ready to go back 36. to my cell. You take the trial and go ahead and do what you want to do with it. That is my final decision. THE COURT: Now, I want to encourage you once again -- THE DEFENDANT: I'm through. THE COURT: It would be to your advantage to be able to hear all the testimony -- THE DEFENDANT: I'm through. As far as I'm concerned, this is not a fair trial, I am just through, that's all I've got to say, I'm through. THE COURT: Should you voluntarily absent yourself, then the Court can make a finding, should the Court make a finding that [156] you voluntarily absented yourself we could proceed, we'll proceed, without your being present. In order for you voluntarily to do so, I want to assure myself that you understand that the case will proceed. I want you 37. to further understand you have a right to remain and it's to your benefit to remain. Should you choose to absent yourself, it may do damage to your defense. For that reason it will be beneficial for you to remain. THE DEFENDANT: Your Honor, I'm leaving that part up to you. I asked you may I be excused. If you don't want to excuse me, I'll sit right here. What difference does it make? THE COURT: Well, I would urge you then Mr. Slappy to remain seated and in the Courtroom, and should you desire to discuss this case further withyour Counsel, why you certainly can let me know, or through your Counsel let me know. THE DEFENDANT: What do I have to say to get through to you, you Honor, what do I have to say to make you under- stand. I have told you two or three 38. times, and then you keep telling me about talking to my Counsel. I don't have no attorney, I told you I don't have no attorney. My attorney's in the hospital, my attorney's name is Mr. P.D. Goldfine, Harvey Goldfine, that's my attorney, he's in the hospital. THE COURT: Well, I am going to ask you then under the circumstances, Mr. Slappy, to remain in the Courtroom and to listen to the proceedings and listen to the progress of this case. THE DEFENDANT: That's up to you, thet's up to you what you do, your Honor. If you say so I'll remain here, but I am not participating in the trial, I'm through with it, as of now I am through with this trial. I was through with it the 24th when [157] this P.D. told me that I didn't have no defense from my charges. I was through then, and that's 39. why I didn't see him when he come down to see me. [158] MR. HOTCHKISS: Your Honor, I would object to the form of proof on the 211 and ask that a certified copy of the judgment of conviction -- for the record I would object to that. THE COURT: Overruled, objection overruled, that may go in and be con- sidered. THE DEFENDANT: I don't talk to you, I told you people not to talk to me, I'm through with this trial. THE COURT: Would you seat the Jury then. MR. HOTCHKISS: Por the record, I would again encourage Mr. Slappy to admit the priors. I have discussed them with him. May I have a moment, I have an investigator out here. [164] MR. HOTCHKISS: Your Honor, only to this extent: I would again 40. encourage and implore Mr. Slappy to take the witness stand, [165] because 1 believe his testimony would be essen- tially, not essentially, but highly help- ful to my position. From what he has discussed with me, I think it would bolster the reason why I want a Jury view. I don't think it's essential. I would again implore him to take the wit- ness stand and to testify. THE COURT: With respect to that, Mr. Slappy, I take it you've heard Mr. Hotchkiss’ request and I take it -- do you have anything you want to add to that at all Mr. Slappy? THE DEFENDANT: No, you heard my statement. [171] (The Jury, District Attorney, Counsel for the Defendant, and _ the Defendant were present.) TEE DEFENDANT: Your Honor, sir, you mean you would make me stay here against 41. my own will, that's against my constitu- tional rights. THE COURT: I'd appreciate your remaining. THE DEFENDANT: As I told you in the first place, I told you this morning when I got here, as of the 24th of September, last Friday, the Public Defender told me that I didn't have no defense on my charges. MR. HOTCHKISS: That is not true, your Honor, I said he did have a defense. THE DEFENDANT: My attorney which is Harvey Goldfine is in the hospital and this man comes up a day and a half ago saying he's my attorney. THE COURT: Mr. Slappy, we went through this once before, I'll ask you to stay and -- THE DEFENDANT: Why should I stay, your Honor? 42. THE COURT: Please disregard these statements ladies and gentlemen. THE DEFENDANT: I can't defend myself. THE COURT: We went through this once before. THE DEFENDANT: He said "if you want to you can go ahead, [172] if you don't like the way I'm running it, go ahead and defend yourself." I told him that I was not qualified to defend myself and I am not. So why would you just want to make me stay? I can't defend myself, I am helpless. 43. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO THE PEOPLE OF THE STATE OF No. 92747 CALIFORNIA, Plaintiff, JOSEPH DAVID SLAPPY, ) ) ) ) ) vs. ) ) ; Defendant. ) ) REPORTER'S TRANSCRIPT Before HONORABLE VICTOR M. CAMPIiONGO, JUDGE, San Francisco, California, October 6, 1976 October 7, 1976 through APPEARANCES: For the Plaintiff: Joseph Freitas, Jr., District Attorney By: Robert Dondero Assistant District Attorney For the Defendant: Robert Nicco, Public Defender By: Bruce Hotchkiss Deputy Public Defender 44. [92] MR. HOTCHKISS: May I, Your Honor? I am in a position that is rather unusual and unique in my experience. My client at this juncture is refusing to talk to me. It has become a detriment in defending him. When I got this case I discussed it with Mr. Slappy and there was -- he had been interviewed by Mr. Goldfine from our office and an investi- gator from our office several times. I knew the defense. I was prepared to engage in direct or in cross-examination of the prosecution witnesses. I feel that there is such a conflict between us, I can't -- he is not talking with me. I can't put him on the witness stand in this sort of situation. I don't know whether he wants to take the witness stand in his own defense. I believe that communications have broken down such that I am running out of -- I don't think I 45. am of effective assistance as Counsel because he has not cooperated with me. I think we have reached a_ situation where there is a conflict. [93] I am aware of at least one case where there is a conflict when the com- munications breakdown. This usually occurs prior to trial. THE COURT: Well, the Court is aware that Mr. Slappy assisted you. I observed him myself in the selection of the jury. MR. HOTCHKISS: Since that time things have deteriorated to such an extent that he is not talking with me right now and I feel that there is such a lack of communication, that our com- munication has broken down to such an extent that private counsel should be appointed that can communicate with Mr. Slappy. 46. THE COURT: Well, let's go off the record. Let's go in Chambers and discuss it. (Thereupon the proceedings in the Courtroom outside of the presence of the Jury were recessed after which the following proceedings were had in Chambers as follows, to wit:) THE COURT: Let the record reflect the presence of the Defendant, Defense Counsel and the District Attorney. We are out of the presence of the Jury. We are involved at this time in a matter of law. MR. HOTCHKISS: May I state for the record, the People versus Stewart, 6 Cal.App.3d, at page 457 and at page 464 and the People versus Williams, 1 Cal.3d 694 at pages 704 through 705. Based upon a further study of those cases, it's my understanding that simply a refusal to cooperate during trial is not a basis 47. for a conflict and I would withdraw my request to declare a conflict. 48. IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO THE PEOPLE OF THE STATE OF CALIFORNIA, No. 92747 , (SUPPLEMENTAL) Plaintiff, JOSEPH DAVID SLAPPY, ) ) ) ) ) vs. ) ) Defendant. ) ) REPORTER'S TRANSCRIPT Before HONORABLE VICTOR M. CAMPILONGO, JUDGE, San Francisco, California, October 7, 1976 APPEARANCES: For the Plaintiff: Joseph Freitas, Jr., District Attorney By: Robert Dondero Assistant District Attorney Por the Defendant: Robert Nicco, Public Defender By: Bruce Hotchkiss Deputy Public Defender 49. [26] All right, Mr. Slappy, I am going to -- Mr. Slappy, I am going to allow you to speak so that you can make a record, It's obvious what you have Gone throughout this case. You have conducted yourself in a manner although not obstreperous in a sense, you have yelled out. You have taken’ occasion at points in the trial to stand up and say something when you knew you should not have. You have done things in Court such as sleep throughout these pro- ceedings which you did just earlier this morning. You made all kinds of noises and it's obvious what you are trying to do. I am willing to make this record for the Appellate Court. Your Counsel, who is an extremely competent Counsel, has gone out of his way to get you to participate in this trial and you are just trying to make a record for appeal 50. and the record is being made. So you go right ahead, Mr. Slappy. MR. SLAPPY: I have no business being here in Court in the first place but the thing I want to say is when the P.D. comes in the holding cell and asks me did I want to make -- did I want to take the stand, I told him I did not know yet. I had no inspirations yet and I did not know. That is what I told him. I did not know whether I wanted to take the stand or not. I did tell Mr. Hotchkiss that but then after I got out of there, I wanted to take the stand. I told him before, you know. What can I do. I did want to take the stand. I told Mr. Hotchkiss I wanted to take the stand. THE COURT: Mr. Hotchkiss, is that a true statement? MR. HOTCHKISS: As I recall it, I went in the holding cell this morning and I asked Mr. Slappy if he wanted to take 5i. [27] the witness stand. He said no. He did not. I told Mr. Slappy, and I am not quoting him verbatum [sic], I told him, "No, I don't think so. No, I am not going to," or words to that effect. I said, “Okay, I will call the janitor and we will have final argument." MR. DONDERO: In fact, I observed the Defendant during the Court's instructions to the jury make some utterances to Mr. Hotchkiss. That is the only time I have seen him move since we started the proceedings this morning. THE COURT: Mr. Slappy has indicated throughout this case he did not want to participate, as I recall and, again, this is for the record. I know it's going to be reviewed on appeal. I am convinced Mr. Slappy has been given every opportunity to participate. He has had the opportunity. He does not seem to be willing. Mr. Slappy's rights 52. have been protected. I have seen Counsel plead with Mr. Slappy before this Court to admit the allegations of the prior explaining why it was important. The Court inquired on its own. Mr. Slappy was not interested. Now, Mr. Slappy -- MR. DONDERO: Mr. Hotchkiss asked the Defendant to take the stand during the question on a miranda warning. THE COURT: That is correct. MR. SLAPPY: I did not know. Please, sir, please, sir, may I please, sir, take the witness stand, just please, and ft will feel better. THE COURT: At this point, Mr. Slappy, I am denying it because I am not convinced, All you're trying to do is make a record for appeal and you're trying to -- [28] MR. SLAPPY: No, I just want to try to do the best I can. 53. THE COURT: Well, you had that opportunity, Mr. Slappy. You know you could have asked to see the Court out- side of the presence of Counsel. You stood up with a purpose in front of the jury when I just got through instructing and you got up in front of that jury on purpose and stated what you wanted to say here so they would be affected by it. MR. SLAPPY: No, sir, I told the Public Defender. THE COURT: When the Public Defender came back to you all you had to do -- MR. SLAPPY: So he could approach you. THE COURT: That is right. I made my decision. You have come in here and made your motion. You did what you wanted purposely. You have done it throughout the trial. The motion is denied. Uonsoddg No. 81-1095 MAR @ 1062 ALEXANDER L. STEVAS CLERK IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 JOHN PAUL MORRIS, Warden, Petitioner, v. JOSEPH D. SLAPPY, Respondent. RESPONSE TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL B. BASSI A Law Corporation 605 Market Street Suite 900 San Francisco, CA 94105 (415) 546-1155 Attorney for Respondent QUESTIONS PRESENTED 1. Can the decision of the Ninth Circuit Court of Appeals be construed to allow a criminal defendant to demand the continued representation by a parti- cular deputy public defender as a Sixth Amendment constitutional right? 2. Does the trial transcript indi- cate a genuine conflict with the trial attorney sufficient to justify an inquiry into the need for a continuance of the trial? 3. When the trial court forces an unwanted deputy public defender upon a criminal defendant without inquiry into the reasons for and length of a requested continuance, must prejudice be shown when a claim is made that counsel was denied? Table of Contents Statement of the Case Reasons for Denying the Writ Argument Conclusion 11 21 ii Table of Authorities Avery v. Alabama (1940) 308 U.S. 444 Chambers v. Maroney (1970) 399 U.S. 42 Geders v. United States (1976) 425 U.S. 80 Gideon v. Wainwright (1913) 372 U.S. 335 Glasser v. United States (1942) 315 U.S. 60 Herring v. New York (1975) 422 U.S. 853 Holloway v. Arkansas (1978) 435 U.S. 475 McMann v. Richardson (1969) 397 U.S. 759 People v. Pope (1979) 23 C.3d 412, 424-425 Powell v. Alabama (1932) 287 U.S. 45 Sumner v. Mata (1981) _—sviui. SS. 101 S.Ct. 76 Tollet v. Henderson (1973) 411 U.S. 258 16 12 iii. Table of Authorities Continu Ungar v. Sarafite (1963) 367 U.S. 575 United States v. DeCoster (D.C., 1973) 487 F.2d 1197 Statutes 28 U.S.C.A. §2254(d) 16 No. 81-1095 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 JOHN PAUL MORRIS, Warden, Petitioner, Vv. JOSEPH D. SLAPPY, Respondent. RESPONSE TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 2. STATEMENT OF THE CASE Respondent Joseph D. Slappy was charged in the San Francisco Superior Court with committing rape, forcible oral copulation, burglary, robbery and false imprisonment. The San Francisco Public Defender's office was appointed to represent him. Mr. Harvey Goldfine handled the case through the arraign- ment and preliminary hearing and did “voluminous investigation" (CT 5, 6; RT g2)2/ On Friday preceding the Thursday trial day, Mr. Hotchkiss met Mr. Slappy in his cell and advised him that he was going to represent him at trial because Mr. Goldfine was in the 1. CT designates portions of the clerk's transcript from Slappy's first trial, subsequently lodged in the United States Court of Appeals. RT designates the Reporter's transcript from the first trial lodged in the United States Court of Appeals. 3. hospital with an appendicitis (RT 81, 83). Mr. Slappy hadn't seen Mr. Goldfine in five weeks (RT 83). At that initial meeting between Slappy and Hotchkiss, Mr. Hotchkiss advised Mr. Slappy, that he, Mr. Hotch- kiss, would be his trial attorney and that he would return to see him the following Monday (RT 82). Mr. Hotchkiss didn't return until Tuesday afternoon because he was busy (RT 5, 81). Although Mr. Hotchkiss claimed otherwise, Mr. Slappy expressed to the court that Mr. Hotchkiss didn't review the case with him and advised Mr. Slappy that he had no defense to the charges (RT 32, 83, 156-157, 171). Contrary to the assertions of the Petitioner, Respondent was satisfied 4. not with the Public Defender, but with Public Defender Harvey Goldfine, the public defender whom he felt was familiar with and was prepared to try his case (RT 4-5). The three days of the trial record indicate Mr. Slappy's complete enmity towards and dissatisfaction with Public Defender Bruce Hotchkiss. This dissatis- faction was expressed on the first day of trial when he advised the court that Mr. Hotchkiss saw him initially on Friday but was too busy to consult with him in preparation of the case until the next Tuesday (RT 5). Mr. Slappy's eyphatic assertions that Mr. Hotchkiss was not prepared to try the case reflect his belief that one and one- half cays is insufficient to prepare a case in which there had been 5. “voluminous discovery". They reflect the belief that Mr. Hotchkiss coulé not ably defend him especially when he had just previously been informed by Mr. Hotchkiss that there were no defenses to the charges (RT 6-7). Respondent's rejection of and con- flict with his counsel was again expressed on the second day of trial, Friday, September 24, when he indicated to the court " .. .I don't have repre- sentation here, I am not qualified to represent myself, and I know I am not. I need counsel." (RT 83). Mr. Slappy also indicated to the court that ". . « but now Mr. Harvey Goldfine was my attorney, and he still is." (RT 83) The conflict was further evident when Mr. Slappy wondered aloud: “He's my P.D., he's for me or against me, he's supposed to be for me." (RT 84) Mr. Slappy and Mr. Hotchkiss then had a heated exchange concerning whether or not Mr. Hotchkiss visited the site of the crimes (RT 84). On the third day of trial, September 28, 1976, after a continuance from the 24th of September, Slappy indicated that he had prepared and wished to file a Writ of Habeas Corpus against the trial court (RT 151). The grounds he enumerated to the court were that his attorney was in the hospital; that he didn't legally have an attorney; and that his present attorney told him that he had no defenses to the charges (RT 152). The court considered the Petition for a Writ of Habeas Corpus to be a reiteration of the grounds presented in the previous sessions of the trial 7. i.e., a request for a continuance. (RT 152). At this point Mr. Slappy refused to cooperate further insisting that he had no covwnsel at the trial, that his counsel, Mr. Harvey Goldfine, was in the hospital (RT 153-158). The sequence of events thereafter is as is set forth in the Petitioner's brief at pages 7-8. REASONS FOR DENYING THE WRIT The Ninth Circuit did not create a right which would allow any criminal defendant to demand continued represent- ation by a particular public defender. The Court acknowledged that an indigent defendant did not have an unqualified right to seek appointed counsel of his choice. (Slip Op. 3170). The Court simply held that the right to counsel is an important right guaranteed by the Sixth Amendment to the constitution and that right encom- passes a meaningful relationship with counsel. (Slip Op. 3170-3172). The Court went on to hold that when the Court's interest in the “prompt and efficient administration of justice" (Slip Op. 3172) conflicts with the defendant's right to counsel, the court must weigh and evaluate the 9. respective interests. A court should weigh the defendant's interest in a relationship with his attorney arising out of the Sixth Amendment against the interests of the Court in moving its calendar. The decision is a reaffirmation of this Court's decisions that the unjusti- fied denial of a continuance could reduce the right to defend with counsel to nothing more than a mere formality. Ungar v. Sarafite (1963) 367 U.S. 575, 588-591; Avery v. Alabama (1940) 308 U.S. 444. There is no need for the defendant to demonstrate prejudice. The Ninth Circuit limited its opinion to the specific facts in this case (Slip Op. 3173). The Court reaffirmed the rule of Chambers v. Maroney (1970) 399 U.S. 42 10. demanding a demonstration of prejudice by a defendant claiming ineffective assistance of counsel. But the Court found that when the trial court refused to give consideration to Mr. Slappy's Sixth Amendment right to an effective counsel in which he could place his confidence and trust, it effectively denied him counsel and thus prejudice need not be demonstrated (Slip Op. 3174), following the line of cases Gideon v. Wainwright (1963) 372 U.S. 335, Geders v. United States (1976) 425 U.S. 80, Herring v. New York (1975) 422 U.S. 853, Glasser v. United States (1942) 315 U.S. 60, Powell v. Alabama (1932) 287 U.S. 45, Holloway v. Arkansas (1978) 435 U.S. 475. ll. ARGUMENT 1. The decision of the Ninth Circuit cannot be construed to allow one defen- dant to demand a particular attorney at all stages of the proceedings "“regard- less of demands made by other indigents for him to represent him” and does not "substantially (remove) any further control over tne allocation of deputies from the public defender." (Petition for Writ of Certiorari, p. 14). The Ninth Circuit acknowledged that an indigent defendant does not have an unqualified right to demand a parti- cular attorney. (Slip Op. 3170). The ruling acknowledged that the Sixth Amendment right consists of more than just the right to an attorney pre- sent in the courtroom. McMann v. Richardson (1969) 397 U.S. 759, 771, 12. Tollet v. Henderson (1973) 411 U.S. 258, 264, United States v. DeCoster (D.C. 1973) 487 F.2d 1197, 1203-1204, People v. Pope (1979) 23 Cal.3d 412, 424-425. The decision of the court allows the trial court to assess this impor- tant right to counsel by an indigent (Gideon v. Wainwright (1963) 372 U.S. 335) when it conflicts with the effi- cient administration of justice and the court's responsibilities in administering crowded dockets. The court has enunciated a simple balancing test in which the trial court must balance the respective rights of parties. The trial court must consider a defendant's right to the relationship he had established with a particular attorney, impliedly to determine whether 13. he has obtained through the stages of representation, trusts and confidences of the defendant that a new attorney may not have yet obtained. This must be done in order to insure that the defendant's right to competent effective representation is not curtailed or denied. This interest must be balanced against the interests of the court in seeing that justice is accomplished in a timely and orderly fashion. This court has recognized that the denial of a continuance can result in the denial of the right to counsel. Ungar v. Sarafite (1963) 367 U.S. 575, 588-591, Avery v. Alabama (1940) 308 U. S. 444. The decision of the Ninth Circuit takes into consideration the import of Ungar and Avery and gives the trial 14. court a standard for insuring the indi- gent's right to competent counsel and the trial court's responsibility in administrating the court system. The Petitioner's claim that the decision of the Ninth Circuit will dis- rupt the offices of the Public Defender is not substantiated by an unimpassioned reading of the decision. The balancing test set forth by the court allows the trial court to substitute new counsel once the court has made an inguiry into and is satisfied that the defendant's right to counsel is not infringed. In the instant case, the trial court's refusal to inquire into the length of the unavailability of Mr. Slappy's original attorney effectively precluded the court from having 15. sufficient information to protect the Sixth Amendment right and as a result denied his right to counsel (Slip Op. 3172). The court also found that the desires of Slappy to be represented by Goldfine were sincere with no evidence of bad faith to delay his trial. (Amended Slip. Op. 3172). The court's failure to consider the request for a continuance in light of Sixth Amendment considerations resulted in the denial of the right to counsel. The decision of the Ninth Circuit is not “revolutionary”. It is in accord with the present status of the law and provides the trial court with an orderly standard to balance the conflicting rights guaranteed by the Sixth Amendment with the need of society to see that justice is accomp- lished in a timely fashion. 16. 2. The Ninth Circuit has the power to review state court findings. Sumner v. Mata (1981) __—*auwS. __,, 101 S.Ct. 764, 66 L.Ed.2d 722, 28 U.S.C.A. §2254(b). The court may inguire as to the correct- ness of the state court rulings if one of the seven conditions set forth in 28 U.S.C.A. §2254(d) fails to exist. Sumner v. Mata, supra, at p. 771. The Appellate Court ruled as a matter of fact that the right to counsel was violated because of the absence of the fact finding process and the failure to weigh the right to counsel against the trial court's concerns. (Slip Op. 3172). Mr. Slappy should not be penalized for his inability to correctly arti- culate the precise legal and constitu- tional grounds of his demand for a 17. continuance so that Mr. Goldfine could represent him. Petitioner's suggestion that on the third day of trial Mr. Slappy raised the issue of who his counsel was for the first time is misleading. The trial lasted three days .2/ a fair reading of the transcript and the complaints indicate a genuine desire to be represented by counsel whom the defendant feit competent to represent him and a compiete distrust and hostility towards the attorney who was forced upon him by the trial court. The trial court considered Mr. Slappy's protests on the third day of trial to be a reiteration of the complaints pre- viously made (RT 152). 2. The complaints of Mr. Slappy in the first trial, the one at issue in this Petition, can be found at pages 5-8, 79-85, 150-158. 18. The Ninth Circuit also found the record contained a sincere desire to be represented by the attorney with whom he had established an attorney- client relationship and was not motivated by bad faith or an improper desire to delay his trial (Amended Slip Op. 3172). Attempts by the Petitioner to isolate the requests of the Respondent to different days of the trial mis- construes the protestations of an inarticulate and indigent individual who realized that in the criminal justice system "My life is at stake, I am the one on trial, ain't nobody to be responsible for serving time for me, I am the one." (RT 6). 19. 3. Petitioner's argument that Respondent should be required to demon- strate prejudice is incorrect. The Ninth Circuit's ruling was that when ruling on the continuance, the failure to adequately consider tie relationship between Mr. Slappy and his original attorney Mr. Goldfine denied Mr. Slappy his right to counsel (Slip Op. 3174). This interpretation is further reinforced by Mr. Slappy's complete and total rejection of Mr. Hotchkiss, his refusal to cooperate with Mr. Hotchkiss, his refusal to take the witness stand, and his act of complete frustration: filing the Writ of Habe2s Corpus on the third day of trial (RT 5-8, 80-86, 15l- 157). Appellant's claims are not that specific acts of Mr. Hotchkiss denied 20. him effective assistance of counsel in which a demonstration of prejudice _ would be necessary, Chambers v. Maroney (1970) 399 U.S. 42, but that the court's failure to consider the importance of the right to counsel and the rights inherent in that (attorney-client privilege, trust and confidence in the attorney) denied the Sixth Amendment right, and hence no prejudice need be demonstrated. Gideon v. Wainwright (1963) 372 U.S. 335, Geders v. United States (1976) 425 U.S. 80, Herring v. New York (1975) 422 U.S. 853, Glasser v. United States (1942) 315 U.S. 60, Powell v. Alabama (1932) 287 U.S. 45, Holloway v. Arkansas (1978) 435 U.S. 475. 21. CONCLUSION The decision of the Ninth Circuit Court of Appeals is consistent with the past decisions of this Court and its concern that an indigent and inarticu- late and uneducated defendant have counsel at trial, and it reaffirms this right while allowing the trial court to take into consideration the concerns of the Court in the orderly administration of justice. The Petition for Writ of Certiorari should be denied. Dated: February 25, 1982 MICHAEL B. BASSI A Law Corporation # Michael BRB Bact MICHAEL B. BASSI Attorney for Respondent Joseph D. Slappy JOUg $ JOUONaq ica |p IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 JOHN PAUL MORRIS, Warden, Petitioner, Vv. JOSEPH D. SLAPPY, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit | BRIEF FOR PETITIONER GEORGE DEUKMEJIAN, Attorney General ROBERT H. PHILIBOSIAN, Chief Assistant Attorney General-Criminal Division WILLIAM D. STEIN Assistant Attorney General W. ERIC COLLINS Deputy Attorney General DANE R. GILLETTE Deputy Attorney General 6000 State Building San Francisco, CA 94102 Telephone: (415) 557-1475 Attorneys for Petitioner QUESTIONS PRESENTED 1. Does the Sixth Amendment entitle a criminal defendant to demand continued representation by a particular deputy public defender who had represented him in the pretrial proceedings? 2. If it does, is a generalized complaint on the morning of trial that Successor counsel is not prepared suf- ficient to inform the state trial judge that previous counsel is being demanded? 3. If a state trial judge refuses to honor a demand to delay trial until preferred counsel becomes available, must there be a reversal per se, or must the defendant show prejudice? Table of Contents Page Opinion below * 7 7 7 . > > 7 . a . >. 1 Jur isdiction . . 7 i . 7 . . a . 7 aa 2 Constitutional provision | i nvolved 7 . . o . 7 om . * * . o . 2 Statement of the case ....+«-e-e«e« 3 Summary of argument ..-.-e«-+-«-+-. 10 Argument I. The Sixth Amendment Does Not Entitle A Criminal Defendant To Demand Continued Representation By A Particular Deputy Public Defender Who Had Represented Him In Pretrial Proceedings. ... 15 II. The Ninth Circuit's Conclusion That Slappy's Initial Complaints Were A Demand For Continuous Representation By A Single Deputy Public Defender Misconstrues The Record And Fails To Accord The Required Presumption Of Correctness To The State Court Findings. 33 III. Where An Indigent Criminal Defendant Claims Error Because A Preferred Attorney Was Not Appointed As Trial Counsel, He Must Demonstrate Prejudice Before Reversal Is Warranted. ..+s+.ee«- 39 GURGENGGn « oe eo eo 6 6 ee ewe oe ii. Table of Authorities Cases Page Argersinger v. Hamlin (2972) 467 UB. Becccvccecvecse 17 Avery v. Alabama (1940) 308 U.S. 444 J om . . . . 7 — . 44 Chambers v. Maroney (1970) 399 U.S. —heéseee 6 6 & 42 Chandler v. Fretag ipeee, See Bebe BDeoeceoeeoeecee sé 41 Cooper v. Fitzharris (9th Cir. 1978) 586 F.2d 1325 .... 42 Davis v. State (1974) 292 Ala. 210 291 So. 2d 346 * >. e . 7 * a — >. . . 51 Faretta v. California (1975) 422 U.S. 806 ~ 7 a . . 7 . . . 29 Gandy v. State of Alabama (Sth Cir. 1978) 569 F.2d 318 .... 45 Geders v. United States (agree, 689 BeBe Tec ccececesees 20 Giacalone v. Lucas (6th Cir. 1971) 445 F.2d 1238 . ... 30 Gideon v. Wainwright (1963) 372 U.S. 335 * . os . . . > . . 17 Glasser v. United States blo. ie te ee a ee 40 Grady v. State of Alabama (Sth Cir. 1978) 569 F.2d 1318 .... 50 iii. Table of Authorities Cont'd. Cases Page Greenfield v. Gunn (9th Cir. 1977) 556 F.2d 935 cert. denied 434 U.S. 928 (1977) .. 22 Harris v. Superior Court (1977) 19 Cal.3d 786 140 Cal.Rptr. 318 567 P. 2d 750 —_ >. - 7 * 7 . 7 . 7 . 49 Herring v. New York (4873S) 422 U.8. S33 «ec cececvevse 2 Holloway v. Arkansas (2976) €35 U.8. 475 wceocevcesvsce Kwaitkowski v. Superior Trading Co. (1981) 123 Cal.App.3d 324 ave GCOL.MpGE. GOP cco ecsesevovsvesne § Long v. State (1969) 119 Ga.App.82 266 8.8.26 365 . ws cc cececeeceee SA Majeske v. United States (9th Cir. 1959) 266 F.2d 947 .... 50 Maynes v. People (1972) 178 Colo. 188 $953 P.26 SFL ec ce ececececeeeee McMann v. Richardson 5.) we of * Se, aa ae Miller v. State (Tex.Crim.App. 1976) 537 S.W.2d 725 51 Moore v. Jamieson (1973) 451 Pa. 299 306 A.2d 283 a 7 . > — > . 7 . >. * - 30 iv. Table of Authorities Cont'd. Cases Page Moore v. United States (3rd Cir. 1970) 432 F.2d 730 .... 22 Mulkovich v. State (1976) 73 Wis.2d 469 243 N.W. 2d 198 > os a . 7 — . 7 > > 51 Nettleton v. State Welk, Bre, aan aoee Peep e eo ee ee 22 People v. Chavez (1980) 26 Cal.3d 334 161 Cal.Rptr. 762 605 P. 2d 401 +. . 7 . o oa . ° . . . . 24 People v. Cox (1961) 22 111.2d 534 177 N.E. 2d 211 . - o > 7 * 7 * om . . 18 People v. Cummings (1978) 84 Mich.App. 509 269 N.W. 2d 658 . * . . . . 7 > 7 . . 22 People v. DeLosa (1960) 184 Cal.App.2d 681 7 Cal.Rptr. 753 ° 26. © €-& £2.06 Se 50 People v. Hidalgo (1978) 22 Cal.3d 826 150 Cal.Rptr. 788 587 P. 2a 230 . 7. +. - 7 - + . > . . > 22 People v. Johnson (1980) 26 Ual.3d 557 162 Cal.Rptr. 431 606 P. 2d 738 7 7 7. . . os . o . . . 7 29 Vv. Table of Authorities Cont'd. Cases People v. Lewis (1978) 20 Cal.3d 496 143 Cal.Rptr. 138 573 P. 2d 40 . 7 - ° . > > . + People v. Maese (1980) 105 Cal.App.3d 710 164 Cal.Rptr. 485 a a a ee People v. Marsden (1970) 2 Cal.3d 118 84 Cal.Rptr. 156 465 Pe 2d 44 . * 7 . . 7 > . . . People v. Pompa-Ortiz (1980) 27 Cal.3d 519 165 Cal.Rptr. 51 612 P. 2d 941 . . >. . . 7. > > . . People v. Stroble (1951) 36 Cal.2d 615 226 P. 2d 330 . . . . * . 7 . . om Polk County v. Dodson (1981) U.S. , 70 L.Ed. 2d 132 S.Ct. 445 . - . — 7 . - . > Powell v. Alabama a er i. Me 6 6« 6 « 6 8 & Releford v. United States (9th Cir. 1961) 288 F.2d 298 .. Slappy v. Morris (9th Cir. 1981) 649 F.2d 718 .. State v. Torres (1973) 54 Haw. 502 510 P. 2d 494 . . . . 7 . . o . Page 22 24 22 49 18 51 vi. Tabie of Authorities Cont'd. —_—_— Cases Page Sumner v. Mata (1981) 449 U.S. 539 ° . . . . . . . Tollett v. Henderson (1973) 411 U.S. 258 . 7 > _ — . — _ . United States ex rel Carey v. Rundle (3rd Cir. 1969) 409 F.2d 1210 .... United States ex rel Thomas v. Zelker (S.D.N.¥. 1971) 332 F.Supp. 595... United States v. Calabro (2nd Cir. 1972) 467 F.2d 973, cert. denied 410 U.S. 926 (1973) .. United States v. Burton (D.C. Cir. 1978) 584 F.2d 485 .... United States v. Fowler (Sth Cir. 1979) 605 F.2d 181 .... United States v. Morrison faweae Gee Wels Bee 6 © © © © ee 6 6 United States v. Sellers (8th Cir. 1979) 603 F.2d 53 > 0 6s United States v. White (8th Cir. 1976) 529 F.2d 1390 e © « United States v. Calabro (2nd Cir. 1972) 467 F.2d 973, cert. denied 410 U.S. 926 (1973) .. United States v. DeCoster @.G. GSS. 3979) Gee BeBe 31906 « « co 36 45 30 50 23 30 38 31 50 38 23 40 vii. Table of Authorities Cont'd. Cases United States v. Johnston (6th Cir. 1963) 318 F.2d 288 ... United States v. Joyce (2nd Cir. 1976) 542 F.2d 158 ... United States v. Kitchen (5th Cir. 1979) 592 F.2d 900 ... United States v. Mor~ison (1981) 449 U.S. 361 -_ - . _ . . * . United States v. Poulack (lst Cir. 1977) 556 F.2d 83 .... United States v. Vargas-Martinez (9th Cir. 1978) 569 F.2d 1102... Williams v. United States t. BB. ' Fe BS 8s 2 Bae Williamson v. State (Okl. Crim. App. 1975) 532 P.2d 444 50 51 viii. TEXTS, STATUTES AND AUTHORITIES Page ABT Associates, Inc., The San Francisco Public Defender's Office: A prelininary Assessment, ugust * — . _ co > oe . > . - _ 26 "Client Services in a Defender Organization: The Philadelphia Experience” 117 U.Penn.L.Rev. 448, 45l, n.12-26 =a = eS 62e¢e¢ ee 8 86 6 26 Gilboy and Schmidt, "Replacing Lawyers: A Case Study of the Sequential Representation of Criminal Defendants " 70 J.Crim.Law and Criminology l, nn » © » «6 % 26 O'Brien et al., "The Criminal Lawyer: The Defendant's Perspective” Portman, “Public Defender Office Administration" 29 Legal Aid Briefcase 107, a 1 ) ee © # © © © @ @ 26 "Representation of Indigents in California - A Field Study of the Public Defender and Assigned Counsel Systems," 13 Stan.L.Rev. 522, 530 (1961) ... 26 Wice and Suwak, "Current Realities of Public Defender Programs: A Natural Survey and Analysis" 10 Crim.Law.Bul. 161, 163 (1974) .. 17 ix. Texts, Statutes and Authorities Cont'd Page Statutes Title 28, United States Code GB ST 2 Section 2254(4) ..«e-ceee Constitutional Provisions Sixth Amendment, United States Constitution .. 2 No. 81-1095 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1981 JOHN PAUL MORRIS, Warden, Petitioner, v. JOSEPH D. SLAPPY, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF FOR PETITIONER OPINION BELOW The opinion of the Court of Appeal is reported at 649 F.2d 718 and is attached as Appendix A to the petition for writ of certiorari. The order of the Court of Appeal amending its opinion, denying the petition for rehearing and rejecting the suggestion for rehearing en banc is attached to the petition as Appendix B. The opinion at 649 F.2d 718 now includes the amendments. JURISDICTION The judgment of the Ninth Circuit Court of Appeals was entered on June 29, 1981. The order of the Court of Appeals amending its opinion, denying the peti- tion for rehearing and rejecting the suggestion for rehearing en banc was filed on October 19, 1981. The petition for writ of certiorari was timely filed on December 11, 1981. Certiorari was granted on March 29, 1982. The jurisdic- tion of this Court is invoked under Title 28, United States Code section 1254(1). CONSTITUTIONAL PROVISION INVOLVED The Sixth Amendment to the United States Constitution states in pertinent part: "In all criminal prosecutions, 3. the accused shall enjoy the right... to have the assistance of counsel for his defense." STATEMENT OF THE CASE Respondent Joseph D. Slappy was charged in San Francisco Superior Court with committing rape, forcidle oral copulation, burglary, robbery and false imprisonment .=/ The San Francisco 1. In its opinion affirming his conviction, the California Court of Appeal summarized the facts relating to Slappy's crimes as follows: "Appellant accosted the victim in a liquor store and «as ordered by the manager to leave. When the victim later left the store, she saw that appellant was waiting outside. She got free from him briefly but when she entered [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_1936%3A0. Public record. Not legal advice.