U.S. v. Solina

Decision Date13 June 1984
Docket NumberNos. 83-1200,83-1232,s. 83-1200
Citation733 F.2d 1208
Parties15 Fed. R. Evid. Serv. 1183 UNITED STATES of America, Plaintiff-Appellee, v. Paul SOLINA and Ronnie Bruscino, Defendants-Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Robert C. Babione, St. Louis, Mo., Mary M. Runnells, Bloomfield, Ind., for defendants-appellants.

Robert T. Coleman, Asst. U.S. Atty., Frederick J. Hess, U.S. Atty., East St. Louis, for plaintiff-appellee.

Before PELL, POSNER and COFFEY, Circuit Judges.

POSNER, Circuit Judge.

Solina and Bruscino, two inmates at Marion Federal Penitentiary, appeal from their convictions for assaulting a guard, Carter, during a free-for-all in the prison mess. Carter had just taken a knife away from another inmate when (according to the government's evidence) Solina tackled him and Bruscino hit him with a chair. Solina and Bruscino were tried together, convicted by a jury, and sentenced to three and eight years' imprisonment, respectively, to run consecutively to their other federal sentences.

Their appeals raise a number of different issues, which we discuss in the sequence in which they arose in the prosecutions. One issue, however--the defendants' challenge to the selection of the jury--need not be discussed; the identical issue was resolved in the government's favor in our recent en banc decision in United States v. Gometz, 730 F.2d 475 (7th Cir.1984).

The first two issues we take up relate to the district judge's refusal to grant continuances to give the defendants more time to get ready for trial. The fight in the mess took place on April 16, 1982, the indictment was handed down on November 18, 1982, and the trial began on January 3, 1983. Bruscino was represented by appointed counsel from the public defender's office and does not contend that his appointed counsel was incompetent or ineffective. But just before the trial began Bruscino succeeded in retaining counsel, and on the day the trial began, his retained counsel, though he had not yet filed an appearance, moved for a continuance to enable him to familiarize himself with the case. The district judge refused to grant the continuance. We think the judge acted within his discretion. Bruscino had had more than eight months after the incident (and five weeks after the indictment) to retain counsel, and the timing of the request for a continuance suggests that he may deliberately have waited till the last moment in order to delay the trial. In any event that would have been the effect of granting the continuance, and the delay would have caused inconvenience to the judge, the jurors, and the prosecutors, and to other litigants in the district court, whose trials might have had to be rescheduled. It is true that as a result of the judge's denial of the continuance Bruscino's retained counsel withdrew from the case and Bruscino went to trial without the counsel of his choice. But he had competent counsel; and while a court may not arbitrarily deny a criminal defendant the right to retain his own counsel in preference to being defended free of charge by a lawyer appointed by the court, it is not required to allow a last-minute change in counsel to disrupt its schedule. Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 1616, 75 L.Ed.2d 610 (1983); Skillern v. Estelle, 720 F.2d 839, 850-51 (5th Cir.1983); United States v. Cicale, 691 F.2d 95, 106-07 (2d Cir.1982).

Without going so far as to suggest that his appointed counsel was incompetent, Bruscino argues that a certain antagonism developed between counsel and the court during the course of trial, which (he suggests) would not have happened with the counsel of his choice. This may be; but if as we believe the refusal to allow a last-minute substitution of counsel did not violate Bruscino's rights, the fact that he might have done better at trial if the substitution had been allowed has no legal significance. See United States v. Ely, 719 F.2d 902, 904-05 (7th Cir.1983); cf. Ford v. Israel, 701 F.2d 689, 693 (7th Cir.1983). It would be different if his appointed counsel had had a conflict of interest or had otherwise been incapable of representing him effectively, but as we have said nothing of that sort is suggested.

Solina made clear at his arraignment a month before trial that he wanted to defend himself. "Standby counsel" was appointed to assist Solina with any points of law that might arise at trial. On the day trial began, Solina asked the court to let his standby counsel take over and conduct his defense, and standby counsel asked for a continuance in order to prepare. The judge refused the continuance, and again we think he was acting within his discretion in doing so. A criminal defendant has a constitutional right to defend himself; and with rights come responsibilities. If at the last minute he gets cold feet and wants a lawyer to defend him he runs the risk that the judge will hold him to his original decision in order to avoid the disruption of the court's schedule that a continuance granted on the very day that trial is scheduled to begin is bound to cause.

Both defendants have previous experience with the criminal justice system. That both should have moved for continuances on the opening day of trial suggested to the district judge, who has long experience with litigation out of Marion--the nation's maximum-security federal prison (successor to Alcatraz), see Garza v. Miller, 688 F.2d 480, 482 (7th Cir.1982)--that these last-minute changes of mind were intended to delay the trial. We are inclined to defer to his intuition but in any event believe that the scheduling problems the continuances would have caused were in themselves sufficient ground for refusing to delay the trial, in the absence of any showing that either Bruscino's appointed counsel or Solina (assisted by standby counsel) were incapable of conducting an adequate defense.

The next set of issues we discuss are evidentiary. The defendants wanted to put into evidence the torn and bloody clothing of several inmates who had been wounded by Logue, the knife wielder whom Carter, the victim of the defendants' assaults, disarmed. The government could not produce the clothing, which apparently had been lost. There is no indication that the government deliberately suppressed this evidence, but the defendants argue that they should at least have been allowed to present evidence that the clothing had been lost, and the district judge refused to let them do so. We think he acted properly. The torn and bloody clothing had no relevance to the defendants' case. If anything, its introduction into evidence (if it had been found) would have bolstered the government's case by showing what a menace Logue had been, thus making it all the more reprehensible that Solina and Bruscino should have assaulted the guard who disarmed him. Especially if the defendants' action could be taken to imply that they were in league with Logue, the production of physical evidence of the damage he had done with his knife could only have harmed their cause.

A related objection is to the exclusion of testimony by an inmate who allegedly heard Carter, before the altercation with Solina and Bruscino, announce that he had secured Logue's knife. This evidence was excluded as hearsay. The basis of exclusion was incorrect. The evidence was offered to show not the truth of Carter's statement but the state of mind of the defendants, who testified that they had acted in self-defense. Nevertheless, the evidence was properly excluded; it was irrelevant. If the defendants knew that Carter had just disarmed a dangerous knife-wielding assailant, it is all the more difficult to understand why they should have attacked Carter and how they could have thought they were acting in self-defense in doing so.

The defendants also object to the exclusion of some photographs. Several were admitted; the ones that were excluded were additional photographs of the mess hall after the fight, and of two of the inmates who had been cut up by Logue. The additional photographs of the mess hall were duplicative. The photographs of the wounded inmates were irrelevant on the same ground that the torn and bloody clothing would have been irrelevant--as well as gruesome.

Bruscino complains about the district court's refusal to allow him to subpoena a guard from the federal prison at Terre Haute in order to give testimony--of a rather improbable cast, see United States v. Bruscino, 662 F.2d 450, 452-53 (1981), modified on other grounds, 687 F.2d 938 (7th Cir.1982) (en banc)--concerning Bruscino's pacific character. Fed.R.Crim.P. 17(b) directs the district court to...

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