Chapman v. U.S.

• Decision Date: 08 June 1977
• Docket Number: No. 75-4452,75-4452
• Citation: 553 F.2d 886
• Parties: Don Garriga CHAPMAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 886

553 F.2d 886

Don Garriga CHAPMAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 75-4452.

United States Court of Appeals, Fifth Circuit.

June 8, 1977.

Don G. Chapman, pro se.

L. D. Langley, Jr. (Court-appointed), Atlanta, Ga., for petitioner-appellant.

John W. Stokes, U. S. Atty., J. Robert Cooper, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before TUTTLE, GOLDBERG and RONEY, Circuit Judges.

GOLDBERG, Circuit Judge:

This appeal from the denial of a motion to vacate sentence presents the question whether a criminal defendant who unequivocally asserts the right to defend pro se after his court appointed attorney has announced, "ready for trial," but before the jury has been empaneled, is entitled to represent himself as a matter of constitutional or statutory law. We hold that a demand for self-representation must be honored as timely if made before the jury is selected, absent an affirmative showing that it was a tactic to secure delay.

Don Garriga Chapman, for whom designated hitters have struck out in four at-bats before district courts and four previous trips to the plate before this court, ¹ protests that the trial court erred by refusing to let him pinch-hit for himself while his court appointed attorney was still in the on-deck circle. On the day of his trial for attempted escape from a federal penitentiary, Chapman announced that he wished to defend himself on the basis of temporary insanity and to dismiss his counsel, who had judged that defense meritless. The trial court declined Chapman's request. After his conviction and unsuccessful appeal, Chapman filed this § 2255 motion, challenging the denial of his right to defend pro se. The lower court rejected Chapman's post-conviction attack, holding that his motion to represent himself was untimely. We reverse.

I.

The appellant was one of ten men indicted for attempting to escape from a federal penitentiary. At his arraignment on December 14, 1973, Chapman pleaded not guilty. On December 21 the court appointed counsel to represent him. During counsel's meetings with Chapman in early January 1974, the appellant urged upon his counsel the wisdom of relying solely on a defense of temporary insanity. Convinced either of the cogency of Chapman's argument or the depth of its absurdity, counsel requested, and the court ordered, a psychiatric evaluation of the appellant.

On January 18, 1974, the psychiatrist reported his conclusion that Chapman was sane at the time of the offense and that he was competent to stand trial. On January 30, Chapman's counsel told appellant his insanity defense was without merit. Chapman was adamant. His uncontradicted assertion is that he explicitly demanded that his counsel resign from the case so that he might conduct his own defense.

At the calendar call on February 1, 1974, Chapman's counsel nevertheless announced that the defense was ready for trial subject to the disposition of pending motions regarding Chapman's competence to stand trial. At a pretrial conference that afternoon, counsel informed the court that Chapman had requested his discharge. Counsel apparently did not indicate whether Chapman desired the court to appoint a substitute counsel or to grant Chapman permission to conduct his own defense. ²

Chapman was excluded from the February 1 conference. He remained in prison. Consequently, he contends, he had no opportunity directly to communicate his wishes to the court. Chapman claims that had he attended the conference he would there have demanded the right to represent himself. Chapman's earliest opportunity directly to address the court came, instead, on February 11, 1974, the day on which his jury trial began.

On February 11, prior to the empaneling of the jury, Chapman twice unequivocally announced to the court his desire to represent himself. The trial court weighed the possibility of allowing Chapman to conduct the trial pro se while his appointed counsel remained at the counsel table. Ultimately, however, the trial court rejected this alternative and denied Chapman's request to defend pro se. ³

The court offered two reasons for denying Chapman's request. First, the court cited the lateness of the request. Second, the court questioned whether Chapman's planned defense of temporary insanity was colorable in light of the psychiatrist's conclusions to the contrary.

After an unsuccessful appeal, Chapman brought the instant motion to vacate sentence pursuant to 28 U.S.C. § 2255. The court below dismissed the motion without a hearing. The court reasoned that Chapman's demand to defend pro se was untimely and, hence, committed to the discretion of the trial court. The court below concluded that the trial court did not abuse its discretion because Chapman's belated request might have caused inconvenience or delay and because Chapman's defense might be prejudiced were he incompetent to represent himself even though competent to stand trial. The court offered no support from the record for these conclusions. ⁴

II.

Defendants in federal court have long been guaranteed by statute the right to conduct their own defense. 28 U.S.C. § 1654. ⁵ Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which involved a state criminal defendant, made clear that the sixth amendment itself grants to every criminal defendant, state or federal, the personal right to conduct his own defense. Faretta held that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so, and that the state may not force a lawyer upon a defendant who properly asserts that right.

The appellee argues that Faretta does not apply retroactively and that the trial court's denial of Chapman's statutory right to defend pro se was, at worst, harmless error. Insofar as this argument assumes that application of the harmless error doctrine to Chapman's case will vary according to whether the right has a constitutional or statutory basis, the argument is mistaken. In any event, however, the right asserted by Chapman rested on a constitutional basis.

The right to have a lawyer is a treasured one, but the corresponding right to refuse a lawyer's help is also given constitutional dignity. We are loathe to deprive a defendant of the latter right unless compelled to do so by clear and commanding precedent.

A.

Two considerations militate decisively in favor of the view that Chapman asserted a right grounded in the federal constitution. First, the question of the retroactivity of Faretta does not arise under the circumstances of this case. Alternatively, even were the retroactivity of that decision at issue, we would apply it retroactively to a defendant tried in federal court.

The question of retroactivity arises only when the Supreme Court forges a "new rule". ⁶ Whatever the novelty in some jurisdictions of a constitutional basis for the right to defend pro se, federal courts in general and this court in particular have traditionally found a sixth amendment basis for the right to conduct one's own defense. The Supreme Court early on indicated in dictum that the constitutional right to have the assistance of counsel carries with it a "correlative right to dispense with a lawyer's help." Adams v. United States ex rel., McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942). Relying on this dictum, in MacKenna v. Ellis,263 F.2d 35, 40-41 (5th Cir. 1959), this court declared of a state prisoner, whose petition for habeas obviously could not rest on § 1654, that:

(t)he defendant, being sui juris and mentally competent, had a right to rely on his own skill and ability and to conduct his defense in person without the assistance of counsel; and the court was not justified in imposing assigned counsel on the defendant against his will.

Subsequently, in Juelich v. United States, 342 F.2d 29, 30 (5th Cir. 1965), we recognized that "this and other Courts of Appeals have deduced that in a criminal prosecution the right to defend pro se is a constitutionally protected right." See Middlebrooks v. United States, 457 F.2d 657, 659 (5th Cir. 1972) (decision to defend pro se is exercise of defendant's "freedom of choice"); see also United States v. Pike, 439 F.2d 695 (9th Cir. 1971); United States v. Warner, 428 F.2d 730 (8th Cir. 1970), cert. denied, 400 U.S. 930, 91 S.Ct. 194, 27 L.Ed.2d 191 (1971); Lowe v. United States, 418 F.2d 100 (7th Cir. 1969), cert. denied, 397 U.S. 1048, 90 S.Ct. 1378, 25 L.Ed.2d 660 (1970); Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969), cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970); United States v. Plattner, 330 F.2d 271 (2d Cir. 1964).

Second, even had we not explicitly characterized the right to defend pro se as a sixth amendment right prior to Faretta, the constitutional basis of that right should be retroactively applied at least where the right was independently guaranteed by § 1654. ⁷ To begin with, the fundamental place of § 1654 in our scheme of justice is illustrated by the history of that statute. The precursor of § 1654 was enacted by the First Congress as section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92. It was passed in the context of colonial tribunals composed largely of laymen. Section 35 was enacted by the Congress and signed by President Washington one day before the sixth amendment was proposed.

Apart from this constitutional aura surrounding § 1654, moreover, the benign consequence of retroactively recognizing the sixth amendment basis of § 1654 would commend that course to us. Mere prospectivity should be the exception and not the rule, lest such limited application vitiate constitutional rights, privileges, and obligations that may effectively be secured retroactively. Unlike those cases to which the Supreme Court has denied...