Opposition Brief — Bunnell v. Armant

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Supreme Court |

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IN THE L__—

SUPREME COURT OF THE UNITED STATES

October Term, 1985

JOE MARQUEZ, NO. 85-1305

Petitioner,

Vs.

JEROME M. ARMANT,

Respondent.

wee ee ae es ae ae es

OPPOSITION TO PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH F. WALSH

Attorney at Law

316 West Second Street

Suite 1200

Los Angeles, California 90012

(213) 627-1793

Attorney for Respondent

JEROME M. ARMANT

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1°&5

JOE MARQUEZ, NO. 85-1305

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

NINTH CIRCUIT

Petitioner,

vs.

JEROME M. ARMANT,

Respondent.

eee eae es es

TO: THE HONORABLE CHIEF JUSTICE AND THE ASSOCIATE

JUSTICES OF THE SUPREME COURT OF THE UNITED STATES:

Respondent, JEROME M. ARMANT, hereby files this brief

in opposition to the petition for writ of certiorari to review

the judgment of the United States Court of Appeals for the

Ninth Circuit, entered in the above-entitled case on September 24.

1985.

OPINIONS BELOW

The Opinion of the Court of Appeals is reported at

132 Es, 20°352s

JURISDICTION

The jurisdiction of the Court is invoked under 28 U.S.C.,

section 1254 and Rule 17 of the Rules of the Supreme Court.

QUESTIONS PRESENTED

1. Does the state court have the right to deny a criminal

defendant's constitutional right of self-representation on

the grounds that the request for self-representation is untimely

because it was made on the day set for trial but prior to

jury selection?

2. Whether the record of the state criminal

proceedings demonstrates that the Respondent, a defendant

in a criminal action, made an unequivocal demand for

self-representation?

3. Whether the state court's denial of Respondent's

motion to continue his trial violated his constitutional rights

of self-representation and to due process of law?

CONSTITUTIONAL PROVISION

Sixth Amendment, United States Constitution:

"In all criminal prosecutions, the accused shali

enjoy the right...to have the Assistance of Counsel for

his defense."

STATEMENT OF THE CASE

On February 11, 1981, an information was filed by the

Los Angeles County District Attorney charging Respondent, Jerome

M. Armant [hereinafter "Armant"] in Count I with arson on

January V 1981, of an automobile owned by Claudette Williams.

On February 11, 1981, the Los Angeles County Public

Defender was appointed to represent Armant in defense of this

charge. Armant was arraigned and entered a plea of not

gusity: {(€.9. 2)

On February 18, 1981, in Department Southwest K of the

Superior Court of California, County of Los Angeles, before the

Honorable Judge Edward Hinz, Jr., Armant, through his counsel

Deputy Public Defender Michael Clark, moved the court to act as

co-counsel or to represent himself. The motion was denied and

the case was set for trial on March 30, 1981. (C.T. 3, ROG RT. 1)

l1/ References are to the Clerk's Record and Reporter's

Record on Appeal in the State court proceedings.

-2-

On March 30, 1981, the action was called for trial.

Armant again moved the court to be appointed as co-counsel.

The motion was denied. Armant then made a motion to represent

himself and for a continuance so that he could prepare his

defense. The motion was denied. (C.T. 5; Aug. R.T. 6-8)

On March 30, 1981, in Department Southwest B, before

the Honorable John A. Shilder, the case was called for trial.

Armant once again moved the court to be allowed to proceed in

pro se, requesting a fourteen to twenty-one day continuance in

order to prepare his case. The motion was denied. (R.T. 2-3)

On March 31, 1981, the jury returned a guilty verdict. cts

42-43, R.T. 43-45)

Armant was sentenced to prison for two years on June 8@,

1981. He appealed his conviction to the California State Court

of Appeal claiming that his constitutional right of self-

representation under Faretta v. California, 422 U.S. 806 (1975)

was violated. The conviction was affirmed because the Court

ruled that the demand for self-representation had not been made

within a reasonable period of time prior to the commencement

of trial, citing People v. Windham, 19 Cal. 3d 121, 128 (1977).

(Pet. for Cert. App.D, p.1ll). His petition for hearing in

the California Supreme Court was denied.

Armant thereafter petitioned the United States District

Court pursuant to 28 U.S.C., section 2254 raising his self-

representation claim. The petition was denied without an

evidentiary hearing, with the District Court concluding, from

reading the transcript of the state court proceeding, that Armant

did not make an unequivocal demand to represent himself. (Pet.

for Cert. App.C, p.97-98) The District Court found his demand

for self-representation equivocal because in addition to requesting

self-representation, the record indicates that Armant made other

motions including a request to be co-counsel, a request for a

-3-

different appointed counsel, and a continuance to retain private

counsel. (Id.)

On appeal to the United States Court of Appeals for the

Ninth Circuit, the judgment of the District Court was reversed

with directions to grant the writ of habeas corpus reversing

Armant's conviction. (Pet.for Cert. App.A) The Court ruled

that Armant made a timely and unequivocal request for self-

representation and it was error to deny his request. The Court

also found error in the denial of his continuance motion.

STATEMENT OF THE FACTS

On February 18, 1981, Armant first stated his dis-

satisfaction with being represented by the public defender.

At that time, Armant's attorney, Deputy Public Defender Michael

Clark, told Judge Hinz that Armant wanted to be appointed as

co-counsel. That request was denied. (Aug. R.T. 1) : Mr.

Clark further stated that Armant wished to represent himself

and that Armant had a constitutional right to defend himself.

(Aug. R.T. 1).

The court, without inquiring of Armant why he wished

to act as co-counsel or whether he wanted to represent himself,

ordered Mr. Clark to continue his representation of Armant.

(Aug. R.T. 1). At that time, Armant wished to have Mr. Clark

relieved as counsel and to be substituted in as counsel to

represent himself. However, before he was able to communicate

this request to the court, Armant was removed from the court-

room by the bailiff. (Aug. C.T- 8, R.T. 2) Disagreement arose

between Armant and Mr. Clark as to the conduct of his defense.

It pertained to what motions should be made, what witnesses

should be called to testify and Armant's desire to review

his preliminary hearing transcript. (Aug. C.T. 6-7)

2/ All references are to the record of the state court

proceedings.

When the case was called fer trial on March 30, 1981,

Armant briefly communicated his disagreements with Mr. Clark

to Judge Hinz. (Aug. R.T. 3-5) At that time, Armant requested

Hudge Hinz to be allowed to proceed in propria persona. (Aug.

R.T. 6) Judge Hinz stated to Armant that he had the right to

represent himself. (Aug. R.T. 7) He asked Armant if he was

prepared to go to trial at that time, if permitted to represent

himself. (Aug. R.T. 8) Armant indicated that he would

need fourteen to twenty-one days to prepare his defense.

(Aug. R.T. 8) Judge Hinz then denied Armant's motion to

represent himself and for continuance as being made untimely.

(Aug. R.T. 8-9) The case was then assigned to Department

Southwest B, Honorable John A. Shilder presiding, tor trial.

Co.T. 4, Bets 2)

Armant renewed his motion before Judge Shilder to have

Mr. Clark relieved as counsel and to have a fourteen to twenty-

one day continuance to hire an attorney and subpoena witnesses.

(R.T. 2-6) Armant and Mr. Clark both described to Judge Shilder

the difference of opinion they had as te who should testify

in Armant's behalf.

Armant expressed the opinion that he felt Mr. Clark had

lied to him about the preparation and conduct of his defense;

specifically, in regard to subpoenaing witnesses to testify

for Armant. (R.T. 5) Armant's feelings were so strong that

he refused to remain in court with Mr. Clark during the trial.

(R.T. 3,5) The trial proceeded in Armant's absence. He

remained in the lockup next to the courtroom during the one-

day trial.

REASON FOR DENYING CERTIORARI

I

THE STATE COURT MAY NOT DENY A CRIMINAL

DEFENDANT'S CONSTITUTIONAL RIGHT OF SELF-

REPRESENTATION ON THE GROUNDS THAT THE

REQUEST FOR SELF-REPRESENTATION IS UNTIMELY

BECAUSE IT WAS MADE ON THE DAY SET FOR TRIAL

BUT PRIOR TO JURY SELECTION

A criminal defendant has a right under the Sixth and

Fourteenth Amendments to represent himself at trial. Faretta

v. California, 422 U.S. 806, 807 (1975). In the Faretta case,

this Court stated that the Sixth Amendment of the United States

Constitution "implies a right of self-representation" for an

accused in a criminal case. (422 U.S., at 821) This right may

be invoked by an accused who "knowingly and intelligently" waives

"the traditional benefits associated with the right to counsel."

(422 U.S., at 835) The accused's "technical legal knowledge, as

such, [is] not relevant to an assessment of his knowing exercise

of his right to defend himself.” (422 U.S., at 836) Rather,

the accused "should be made aware of the dangers and disadvantages

of self-representation, so that the record will establish that he

knows what he is doing and his choice is made with eyes open."

(422 U.S., at 835) If, after being appraised of his rights, the

accused wishes to waive the right to counsel and represent himself,

he has an absolute right to do so.

This Court noted that "It is undeniable that in most criminal

prosecutions defendants could better defend with counsel's guidance

than by their own unskilled efforts." Faretta v. California,

422 U.S. 806, 834 (1975). Notwithstanding the fact that his

defense may ultimately suffer, an accused must be permitted to

represent himself because the right of self-representation is

directed more to the assertion of personal liberties than to the

assertion of an effective defense. Thus, in the Faretta case,

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this Court stated:

To force a lawyer on a defendant can only lead

him to believe that the law contrives against him....

The right to defend is personal. The defendant, and

not his lawyer or the state, will bear the personal

consequences of a conviction. It is the defendant,

therefore, who must be free personally to decide

whether in his particular case counsel is to his

advantage. And although he may conduct his own

defense ultimately te his own detriment, his choice

must be honored out of "that respect for the individual

which is the life-blood of the law." (422 U.S., at

834)

In the Faretta decision itself, this Court only placed one

limitation on the exercise of the constitutional right of self-

representation. This Court, by citing its decision in Illinois

v. Allen, 397 U.S. 337 (1970), mentions only disruptive in-court

behavior in its discussion of when the right of self-representation

can be terminated. This Court stated "[T]he trial judge may

terminate self-representation by a defendant who deliberately

engages in serious and obstructionist misconduct." Faretta v.

California, 422 U.S. 806, 835 n.46 (1975)

In the case now before this Court, the issue presented

is whether a criminal defendant may lose his constitutional right

of self-representation if his request for self-representation is

untimely. More precisely, the issue in this case is whether a

request for self-representation made on the day set for trial,

but prior to jury selection, is a timely request. In Respondent

Armant's case, the Ninth Circuit held that his request for self-

representation "was made before the jury was empanelled" and

hence "was timely as a matter of law." Armant v. Marquez,772

F.2d 552, 555 (9th Cir. 1985). The Court relied upon two earlier

a

decisions of the Ninth Circuit which held to the same effect.

Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir. 1982); Fritz v.

Spaulding, 682 F. 2d 782, 784 (9th Cir. 1982).

As the Petitioner has pointed out in their petition for

writ of certiorari, the Ninth Circuit cases are in conflict with

the California Supreme Court on this precise issue. In People v.

Windham, 19 Cal. 3d 122, 127-128 (1977), the California Supreme

Court held that "In order to invoke the constitutionally mandated

unconditional right of self-representation, a defendant in a

criminal trial should make an unequivocal assertion of that

right within the reasonable time period prior to the commencement

of trial." The California courts have interpreted this language

in Windham to mean that a self-representation motion made on the

day the trial is scheduled to begin may be denied as untimely.

People v. Hernandez, 163 Cal.App.3d 645 (1985). See also, People

v. Hill, 148 Cal.App.3d 744, 757 (1983); People v. Fulton, 92

Cal.App.2d 972, 976 (1979). Although the Windham case involved

an accused who requested the right of self-representation mid-trial,

the Court did adéress the factual situation raised in the Armant

case. The Court in Windham stated:

Our imposition of a "reasonable time" requirement

should not be and, indeed, must not be used as a means

of limiting a defendant's constitutional right of self-

representation. We intend only that a defendant should

not be allowed to misuse the Faretta as a means to

unjustifiably delay a scheduled trial or to obstruct

the orderly administration of justice. For example,

a defendant should not be permitted to wait until the

day preceding trial before he moves to represent himself

and request a continuance in order to prepare for trial

without some showing of reasonable cause for the late-

ness of his request. In such a case, the motion for

=§-

self-representation is addressed to the sound discretion

of the trial court which should consider relevant factors

such as whether or not defense counsel has himself

indicated he is not ready for trial and needs further

time for preparation. (29 Cai. 3d at 128 n.5)

In contrast to the approach taken by the Californnia state

courts is the approach taken by the Ninth Circuit Court of Appeals.

See, Armant v. Marquez, 772 F. 2d 552 (9th Cir. 1985); Maxwell v.

Sumner, 673 F. 2d 1031 (9th Cir. 1982); Fritz v. Spaulding, 682

F.2d 782 (9th Cir. 1982). These cases first determine whether

the assertion of the constitutional right of self-representation

is timely before proceeding to the next issue, whether a motion

to continue the trial should be granted. The self-representation

motion is the assextion of an absolute constitutional right. The

continuance motion, on the other hand, is a motion that is subject

to the discretion of the trial judge. All of the Ninth Circuit

cases hold that a self-representation motion is timely if made

before the jury is empanelled, unless it is shown to be a tactic

to secure delay. Armant v. Marquez, supra, at 555; Maxwell v.

Sumner, supra, at 1036; Fritz v. Spaulding, supra, at 784. See

also, Chapman v. United States, 553 F.2d 886 (5th Cir. 1977);

United States v. Price, 474 F. 2d 1223, 1226-27 (9th Cir. 1973).

On the issue of delay, the Court in Fritz v. Spaulding stated:

Delay per se is not a sufficient ground for

denying a defendant's constitutional right to self-

representation. Any motion to proceed pro se that

is made on the morning of trial is likely to cause

delay; a defendant may nevertheless have bonafide

reasons for not asserting his right until that

time, see Chapman, 553 F.2d at 888-89, and he may

not be deprived of that right absent an affirmative

showing of purpose to secure delay. (682 F.2d at 784)

Thus, the approach of the Ninth Circuit is the preferrable

one. That approach recognizes that the right of self-representation

is a constitutional right based upon an individual's personal liberties.

As such, the denial of any timely motion for self-representation

cannot merely be reviewed on appeal with an abuse of discretion

Standard. Finaily, the Court creates a bright-line rule by notina

that in all cases a self-representation motion is timely made if

3

it occurs prior to empanelment of the jury and the start of trial.

II

THE RECORD OF THE STATE CRIMINAL PROCEEDINGS

DEMONSTRATES THAT THE RESPONDENT, A DEF! ANT IN

A CRIMINAL ACTION, MADE AN UNEQUIVOCAL DEMAND FOR

SELF-REPRESENTAT.iON

The Petitioner correctly points out that the findings of

fact of the District Court included a finding that the Respondent,

Armant, did not make an unequivocal demand for self-representation.

(Pet.for Cert., App.C, p.97-98) The finding of fact states:

Moreover, it is not clear that Petitioner's

ultimate desire was to proceed in pro se. Where

it cannot be concluded that a defendant's demand

to proceed pro se was unequivocal, no denial of

the right to self-representation has occurred.

Meeks v. Craven, 482 F. 2d 465 (9th Cir. 1973).

3/ Both the Fifth Circuit and the Second Circuit

have stated that a self-representation motion is timely if

it is made prior to jury selection. Chapman v. United States,

553 F. 2d 886 (5th Cir. 1977); United States v. Denno, 348

F. 2d 12 (2nd Cir. 1964). In the Denno case, the Court

stated: "The right of a defendant in a criminal case to

act as his own lawyer is unqualified if invoked prior %

the start of the trial. [Citaticns] Once the trial has begun

with the defendant represented by counsel, however, his right

thereafter to discharge his lawyer and to represent himself

is sharply curtailed. There must be a showing that the

prejudice to the legitimate interests of the defendant

overbalances the potential disruption of proceedincs

already in progress, with considerable weicht being given

to the trial judge's assessment of this balance [Citations]".

(348 F. 2d, at 15) (emphasis supplied).

-10-

Petitioner variously requested to be appointed co-

counsel (on two occasions) to represent himself,

to have new counsel appointed, and finally, to have

his own retained counsel (which he now admits was

not financially feasible [Mtn. for New Trial 1]).

Thus, his equivocal demands did not entitle him

to proceed pro se. (Pet.for Cert., App.C, pp.97-98)

It is true that pursuant to Federal Rules of Civil Procedure,

Rule 52 that "Findings of fact shall not be set aside unless clearly

erroneous..." However, under the facts of this case, the finding

by the District Court that only an equivocal request for self-

representation was made, is a clearly erroneous finding. Such

a finding is not fairly supported by the record. See, Sumner

vy. Mata, 449 U.S. 539, 551 (1981); Rushen v. Spain, 464 U.S.

114 (1983).

The record in this case clearly indicates that on March 30,

1981, Mr. Armant request that he be allowed to represent himself.

That request was put forth in writing on a prepared form supplied

to Mr. Armant by the clerk of the court. After the form was filled

out, the court then held a hearing on Mr. Armant's request. The

issue of whether or not granting such a motion would necessitate

a continuance was an issue that was raised by the trial judge sua

sponte. In response to the court's inguiry about a continuance,

Mr. Armant stated that he was not prepared to proceed to trial on

that date and would be requesting a continuance cf two or three

weeks. The fact that Armant might make a motion to continue the

trial was then used as the excuse for the trial judge's denying

his self-representation motion. (Pet. for Cert, pp. 18-21)

The District Court in finding an equivocal request for

self-representation, based that finding on the fact that Armant

made other motions in addition to his self-representation motion.

However, the fact that a litigant makes two motions does not

thereby render either of those motions equivocal in nature. Rather,

-ll-

Mr. Armant merely took it upon himself to make several motions,

requesting to be appointed co-counsel, requesting a different

appointed counsel, requesting time to retain counsel, and his

self-representation motion. By making a motion to the court for

the appointment of a different trial counsel, after his self-

representation motion had been denied, Mr. Armant was not in

any way withdrawing his earlier self-representation request.

Since that motion had been brought and denied, Armant was simply

pursuing another avenue of relief by requesting a different

counsel.

Thus, the Court of Appeals for the Ninth Circuit in

the Armant case was well within its authority to disregard the

finding of the District Court that Armant did not make an un-

equivocal request for self~-representation. Such a finding has

no basis for support in the record in his case. Finally, whether

or not a person has made an unequivocal demand for self-representation

is a question of law for the appellate court to decide. Meeks v._

Craven, 482 F. 2d 465 (9th Cir. 1973); Faretta v. California,

422 U.S. 806, 835 (1975). The District Court in this case was

in no better position for finding the facts on the issue of

an unequivocal demand for self-representation than was the Ninth

Circuit Court of Appeals. Both Courts made their decision based

upon an examination of the reporter's transcript of Mr. Armant's

state criminal trial. Under these circumstances, the factual

findings of the District Court on whether an unequivocal demand

was made by Armant in the state court proceedings is a finding

deserving little attention or weight.

@12@

bs |

THE STATE COURT'S DENIAL OF RESPONDENT'S

MOTION TO CONTINUE HIS TRIAL VIOLATED HIS

CONSTITUTIONAL RIGHT OF SELF-REPRESENTATION

AND TO DUB PROCESS OF LAW

Armant's self-representation motion was made on March 30,

1981, the day set for the commencement of his trial. Formal

charges had been filed in the Superior Court for the County of

Los Angeles on February 11, 1981. Thus, the self-representation

motion occurred not only on the first date set for trial, but

just seven short weeks after the original arson charges had

been filed.

The trial did not start on March 30, 1981. It was trailed

one day until March 31, 1981, when Armant made a motion to continue

the case "from fourteen to twenty-one court days so I may hire an

attorney of my own choosing." (Pet. for Cert. p.23) This was

likewise denied by the state trial judge.

The Ninth Circuit Court of Appeals in this case not

Only found error in the violation of Armant's self-representation

motion but also reversible error in the denial of his motion for

a continuance. Armant v. Marquez, 772 F. 2d 552, 556-558 (9th

Cir. 1952). The Court reviewed the facts of the case for an abuse

of discretion. United States v. Flynt, 756 F. 2d 1352, 1358

(9th Cir. 1985); Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

The Court looked at four factors in determining whether

an abuse of discretion occurred in the denial of the continuance.

The Court first looked at the degree of diligence exercised by

Armant prior to the date beyond which the continuance was sought.

Secondly, the Court considered whether the continuance would have

served any useful purpose if granted. Thirdly, the Court weighed

the inconvenience that granting the continuance would have caused

the Court or the Government. Finally, the Court examined the amount

=-j13-

of prejudice suffered by Mr. Armant from the denial of the

continuance.

As noted above, the trial date that Armant sought to

continue was the first date that the case had been set for trial.

It was only seven weeks after formal charges had been filed in

the Superior Court. The Ninth Circuit appropriately relied upon

Powell v. Alabama, 287 U.S. 45, 59 (1932) in finding that the

prejudice suffered by Armant was no less than the effective

denial of his constitutional right to self-representation.

In the Powell case, this Court stated "It is vain to give the

accused a day in court with no opportunity to prepare for it,

or to guarantee him counsel without giving the latter any

opportunity to acquaint himself with the facts or law of the

case." (287 U.S., at 59)

CONCLUSION

Based upon the foregoing reasons, the Respondent urges

that a writ of certiorari to review the judgment and opinion of

the Ninth Circuit should be denied.

Respectfully submitted,

, JOSEPH F. WALSH

Attorney for Respondent

JEROME M. ARMANT

a

CERTIFICATE OF SERVICE

I, JOSEPH F. WALSH, a member of the Bar of this

Court, hereby certify that on March 5, 1986

the foregoing OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

was served upon ccunsel listed below by depositing

copies of same in the United States mail, with first

class postage prepaid, addressed as follows:

DONALD F. ROESCHKE

Deputy Attorney General

3580 Wilshire Boulevard

Los Angeles, CA 90010

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JOSEPH F. WALSH

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