Farrell v. United States, 12051.

Decision Date21 August 1978
Docket NumberNo. 12051.,12051.
Citation391 A.2d 755
PartiesWilliam C. FARRELL, a/k/a Suli Abdullah, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Laban L. B. Chang, Law Student Counsel, L.S. No. 1787, with whom Michael E. Geltner, Washington, D. C., Supervising Atty., appointed by this court, was on the brief, for appellant.

William J. Hardy, Jr., Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and GALLAGHER, Associate Judge, and PRYOR, Associate Judge, Superior Court of the District of Columbia.*

NEWMAN, Chief Judge:

Tried by a jury on a felony indictment alleging destruction of private property valued in excess of $200.00, appellant was convicted of the lesser-included misdemeanor of destruction of private property valued at less than $200.00. See D.C.Code 1973, § 22-403. As his principal contention on appeal appellant alleges that the trial court violated his Sixth Amendment right to counsel by failing to conduct sufficient inquiry into his pretrial claim of ineffective assistance of counsel before it denied his motion to change counsel. We agree with appellant's assertion and reverse.1

I

On the morning of February 3, 1976, appellant entered the office of Dr. Michael W. Dennis and Dr. Norman H. Horowitz at 2141 K St., N.W. The chief prosecution witness, Mrs. Neva J. Peters, a nurse and general manager of the office, testified that appellant asked to see Dr. Dennis but had scheduled no appointment. She stated that she told him he could not see Dr. Dennis until he had completed his appointments with the other scheduled patients. Appellant entered the waiting room and remained there for approximately one hour, in her estimation. According to Mrs. Peters, appellant then picked up an ashtray and began cursing her because of the delay in seeing Dr. Dennis. She immediately shut the window to the nurses' station. Appellant picked up a potted plant and threw it against a wall in the waiting room. She left the station to summon Dr. Dennis. As they returned, she saw a table shatter the glass window of her nurses' station. When she entered the station, she stated she saw appellant replacing the table. However, she did not see appellant throw anything. She saw no one else in the waiting room at that time. Appellant then left the office. The government also called as a witness a representative of the company which repaired the broken window at Dr. Dennis' office; he testified that the total repair bill amounted to $211.18.

Proceeding pro se, appellant presented one defense witness, Officer Webb, the investigating officer in the case, and then rested his case without testifying. He made an effort at presenting a closing argument during which he sought to recount his version of the events. After sustaining a number of proper objections by the government, the trial court suggested that appellant testify on his own behalf. Appellant testified that subsequent to his referral to Dr. Dennis by the Washington Hospital Center, he called Mrs. Peters and made an appointment to see Dr. Dennis on the morning of February 3, 1976. When he arrived at the office, he stated that he waited for about an hour and a half. During that time the only other patient who had been present in the waiting room left. According to appellant, he continued to wait, and was told to wait a few minutes longer when he asked Mrs. Peters when he could see the doctor. He then waited another hour. Two other patients entered the office; they were admitted to see the doctor without having to wait. When he asked Mrs. Peters why other patients were ushered in to see the doctor while he was kept waiting, appellant testified, she replied that Dr. Dennis had told her he did not wish to see Mr. Farrell and wanted him to leave. She tried to shut the glass window of the nurses' station "in his face," and he put his hand to the window to try to stop her. Appellant stated that the glass shattered when Mrs. Peters closed the window. She then went to the inner office to summon Dr. Dennis.

II

Approximately two days before the commencement of trial, appellant's court-appointed counsel informed the trial court, on appellant's behalf, that appellant doubted counsel's ability to represent him effectively and therefore requested the appointment of substitute counsel. The court summarily denied appellant's motion on the ground that due to the tardiness of the motion and the imminence of trial, new counsel, if appointed, would have insufficient time to prepare for appellant's representation.

Before the start of trial, appellant's counsel renewed the motion for appointment of substitute counsel for the same reasons as had been previously asserted. The trial court denied this request, again stating that there would be insufficient time for adequate preparation by new counsel. Defense counsel then declined to announce that he was ready for trial because appellant refused to communicate with him about the facts of the case.

During voir dire of the jury array, appellant himself addressed the court as follows:

THE DEFENDANT: Your Honor, I would like to say something.

* * * * * * * *

THE COURT: Yes, sir.

MR. FARRELL: I would like to say that I am not satisfied with my lawyer and I would like to have another lawyer.

THE COURT: That request was denied previously. It will be denied at this time.

MR. FARRELL: Okay. I would like to represent myself.

At that point the court interrupted the voir dire of the jury array and conducted a hearing out of the presence of the panel on appellant's request as follows:

THE COURT: . . . Mr. Farrell, you have asked the Court to permit you to be your own lawyer, because you are not satisfied with [defense counsel]. At the late date when it was made known to this judge that you did not want [defense counsel] to be your lawyer, it was too late to appoint a new lawyer to be prepared to represent you in this case. [The court informed appellant of the charge against him and of his right to be represented by counsel.] [The Constitution] . . . gives you the right to have one who is competent and who prepares himself for trial and who does an adequate job, as is expected of a lawyer in representing you.

. . . . .

Now, again I repeat to you that it is not a matter of you selecting another lawyer at this juncture. It is a matter of whether or not you can show me that [defense counsel] is not capable of being your lawyer, or in the alternative if you really want to represent yourself then show me that you voluntarily and intelligently waive your right to a lawyer.

Do you understand what I said about your right to a lawyer?

MR. FARRELL: Yes, sir.

THE COURT: Do you understand what I said about your right to waive a lawyer if you want to represent yourself, that you must intelligently do so?

* * * * * *

MR. FARRELL: Yes.

THE COURT: What are your objections to the lawyer that has been appointed to you by another judge of this court, . . who says that he is prepared to go to trial in this case?

MR. FARRELL: Well, Your Honor, this case has been up for a year. [Defense counsel] hasn't done anything sufficient in the case as to go find out the property, the value of the property, and to get some witnesses or anything. Hasn't been [sic] anything been done. He comes to talk to me about it the last couple of days before I go to court. I don't feel that he knows enough about the case to represent me properly.

THE COURT: Let me ask him some questions in your presence.

* * * * * *

THE COURT: . . . I was going down the same list of questions asked of you at status hearing. . . .

* * * * * *

THE COURT: I don't call upon you to yield up any confidential communication.

The first question is [sic] that I ask of you is whether you have followed the discovery practices of lawyers, defense lawyers, with the U.S. Attorney's office?

[DEFENSE COUNSEL]: I have, sir.

THE COURT: Are you satisfied that the U.S. Attorney has given you all the discovery that you would feel that you are entitled to in this type of a case?

[DEFENSE COUNSEL]: I have.

THE COURT: The second is are there any statements that are involved which would require suppression under the Miranda doctrine?

[DEFENSE COUNSEL]: Your Honor, I have learned of a statement which was made by my client at the time of his arrest. However, a determination was made not to move to suppress that statement inasmuch as the admission of that statement was not inconsistent with my understanding of our defense.

THE COURT: That is a legal judgment, and that shows that you have evaluated that point.

The next is, is there any issue of identification?

[DEFENSE COUNSEL]: Once again, Your Honor, throughout my preparation in this case, I understood there was not. And speaking to specifics, the secretary and the doctor reported the name of the individual who they believed to be involved in this case by name to the police department. I have learned today from Mr. Martin that there may be an identification issue in the trial, but that it is not the type of issue that may be raised in a pretrial motion to suppress identification. There were no pretrial identification procedures.

THE COURT: All right, sir. Well, there is always an issue of fact as to whether or not the defendant is the person who committed the crime, and that's part of the government's burden.

[DEFENSE COUNSEL]: Yes, sir.

THE COURT: All right. Now, is there any alibi asserted by your client?

[DEFENSE COUNSEL]: No, sir.

THE COURT: The question of insanity is one which the Court has already examined and there is in the record of this proceedings a report from the forensic physician, Doctor Maglagod (phonetic), who reports the defendant in his opinion is competent for trial and capable of forming a factual and rational understanding...

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