Dusseldorf v. Teets, 13327.

• Decision Date: 03 February 1954
• Docket Number: No. 13327.,13327.
• Citation: 209 F.2d 754
• Parties: DUSSELDORF v. TEETS.
• Court: U.S. Court of Appeals — Ninth Circuit

209 F.2d 754 (1954)

DUSSELDORF v. TEETS.

No. 13327.

United States Court of Appeals Ninth Circuit.

January 13, 1954.

As Amended on Denial of Further Rehearing February 3, 1954.

Victor E. Cappa, San Francisco, Cal., for appellant.

Edmund G. Brown, Atty. Gen. State of Cal., Clarence A. Linn, Asst. Atty. Gen., Charles E. McClung, Deputy Atty. Gen., for appellee.

Before DENMAN, Chief Judge, and ORR and POPE, Circuit Judges.

DENMAN, Chief Judge.

Dusseldorf, a prisoner convicted of murder by the California courts and sentenced to death, appeals from a judgment dismissing his application for a writ of habeas corpus. His application is supplemented by our taking judicial notice of certain facts stated in the transcript of the case on which is based the decision on his appeal to the California Supreme Court from his conviction. This transcript is brought to our attention by Dusseldorf and sought to be so treated.

These facts are of occurrences¹ at the trial in the court's chambers in part after the jury panel was assembled and waiting drawing of names by the clerk and in part after the beginning of the drawing. They are:

"Mr. Dusseldorf: May I have a word with you, your Honor?

"The Court: All right, in the case of Alfred Dusseldorf, there are three priors charged and the defendant stood mute on those priors and the Court directed that a denial of the priors be entered. Now, what is your wish, Mr. Belcher?

"Mr. Belcher: I believe at this time Mr. Dusseldorf wishes to admit those priors at this time. Do you, Mr. Dusseldorf?

"Defendant Dusseldorf: May I have a word first?

"The Court: Yes.

"Defendant Dusseldorf: Well, actually speaking, your Honor, I want to explain to you that I do not believe that my counsellor is prepared. What I mean, to take this case on today, and I would like a continuance in this matter.

"The Court: Well, there will have to be a showing made in the regular way. We have a jury panel in attendance. The other attorneys are here and the District Attorney is prepared to go ahead. Let\'s confine ourselves to these prior convictions first. Do you wish to change your plea as to the prior convictions * * *.

"(Thereupon the Judge, the court attaches, Defendant Dusseldorf, counsel and Deputy Sheriff Ayres returned into the Court room)

"10:32 A. M.

"The Court: In the case of the People vs. Leroy Weathers, Doil Miller and Alfred Dusseldorf, we will proceed with the case. Draw twelve names, Mr. Clerk.

"(Thereupon the Clerk started drawing the names of prospective jurors.)

"Mr. Belcher: Your Honor, at this time I believe before the trial goes any further I think a statement should be made to the Court and I think probably the statement should be made in the chambers, though * * *.

"The Court: All right, we will take a recess and step into my chambers with the Clerk and the Reporter and the District Attorney.

"(After the usual statutory admonition to the jury, a recess was taken at 10:35 A. M.) (Judge\'s chambers)

"Mr. Belcher: My client at this point has informed me that he no longer wishes me to carry on and to represent him in the presentation of this case, the defense of this case. He has stated also that he feels that it should not be tried at this time, by reason of the fact that his wife, who is a possible witness, is in the City of Chicago and will not here. My understanding was that the wife, under no circumstances, would be here. Mr. Dusseldorf\'s feeling is otherwise.

"The Court: Well, in the first place, there is no motion regularly set for the continuance, no affidavits of the wife or of the defendant or anybody else with respect to the matter.

"Mr. Belcher: That is correct, your Honor.

"The Court is prepared to try the case. The District Attorney is prepared to go ahead. There has been no showing such that would warrant a continuance of the case. Now, as to the matter of withdrawal, the defendant has a right to represent himself or not as he sees fit. My advice to him would be that Mr. Belcher is familiar with the case and that he should go ahead. I am going ahead with this case in the absence of more of a showing than has been made at the present time. Now do you wish Mr. Belcher to continue or not.

"Defendant Dusseldorf: Well, I couldn\'t hardly represent myself, your Honor.

"The Court: You had better have him remain in the case. We are prepared to go ahead.

"Thereupon the trial was resumed at 10:36 A. M."

Dusseldorf's attorney, who freely offered his services in an able brief, contends that the State of California violated the Fourteenth Amendment in the failure of its officer, the California Superior Court judge, to inquire into the circumstances of the relationship of Dusseldorf to his attorney to determine his claim to the right to other counsel and relies upon Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680.

It further appears that on the automatic appeal from the death sentence another attorney was appointed for Dusseldorf, who neither sought relief from the trial court for its conduct with respect to his predecessor nor presented it to the Supreme Court of California, where as seen the record before it showed the above facts.

Dusseldorf's petition for the writ of habeas corpus to the Supreme Court of California, which was in the same form as the application to the district court, must be deemed so to have been supplemented by the facts in the transcript before the California Supreme Court on Dusseldorf's appeal there. Hence he has exhausted his local...