Flower v. United States, 13435.

Decision Date29 January 1980
Docket NumberNo. 13435.,No. 13447.,13435.,13447.
Citation411 A.2d 618
PartiesMichael G. FOWLER, Appellant, v. UNITED STATES, Appellee. Clifton L. THOMAS, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Charles W. Halleck, Washington, D. C., for appellant Fowler.

Henry W. Asbill, Public Defender Service, Washington, D. C., with whom Silas J. Wasserstrom, Public Defender Service, Washington, D. C., was on brief, for appellant Thomas.

Norman M. Monhait, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, U. S. Atty., Washington, D. at the time the brief was filed and the case was argued, John A. Terry, Michael W. Farrell and Harry R. Benner, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before KELLY, FERREN and PRYOR, Associate Judges.

KELLY, Associate Judge:

Appellants Michael G. Fowler and Clifton L. Thomas appeal their jury convictions for armed robbery and armed kidnapping under D.C.Code 1973, §§ 22-2201, 22-2901, and 22-3202.1 This court consolidated their appeals sua sponte.

Appellants assign numerous errors to the trial court in support of their demand for a new trial. We have carefully considered appellant Fowler's arguments and find them without merit.2

Although appellant Thomas (hereinafter appellant) propounds several arguments for reversal, we find none of them persuasive.3 The only issue that requires extended discussion is his contention that the trial court, by granting his request to appear pro se without a full inquiry of the sort outlined in Hsu v. United States, D.C.App., 392 A.2d 972 (1978),4 violated his Sixth Amendment right to the effective assistance of counsel.

Our reasons for affirming the trial court's decision are presented in three parts: first, we set forth the relevant facts of the case; second, we discuss the pre-Hsu state of the law regarding waiver of counsel; and third, we analyze the Hsu standards governing a trial court's pro se inquiry and explain their relevance and application to the facts of this case.

I

The testimony at appellants' trial reveals that, on the evening of January 27, 1977, five men forced Jeffrey Akers at gunpoint into the back seat, and later the trunk, of their car, and robbed him of approximately $125. Once released, the victim, ignoring his abductors' warnings, described the assailants and their car to the police. At a show up within an hour of the incident, he identified four of the car's passengers, including appellants Thomas and Fowler, and accurately foretold the contents of the unopened car trunk.

Appellant Thomas was arrested on January 28. On January 29, Attorney Hipskind was appointed to represent appellant.

We set forth, at some length, the chronology of events (based on documents of record considered by the trial court) following appellant's assignment of counsel and preceding appellant's official request, on the first day of trial, for permission to appear pro se:

(1) February 2. Bail was set at $10,000 by Judge Alfred Burka.

(2) February 14. Appellant wrote a letter to Attorney Hipskind accusing him of neglecting appellant's defense and of underestimating his intelligence. He expressed disagreement with Hipskind's "defense and tactics" and made the following suggestions (in reference to the government's witness' second failure to appear at a lineup):

"[W]hy don't we press for a dismissal for lack of evidence? Or file for a writ of habeas corpus? Or at least another line-up so that the government will be forced to dismiss the case themselves. Don't tell me that some of these things can't be done because any kid with a prisoner's rights booklet can prove you wrong! . . . I can assure you total success with this case `now' if you'd file for dismissal or another line up! In either case whatever you file always, always! send me a copy for my records so that we keep things straight."

(3) March 24. Appellant filed a pro se handwritten habeas corpus petition and a petition for review of his conditions of release, replete with legal citations and references.

(4) April 2. Appellant requested that Judge Burka appoint new counsel, writing:

"I am not dazzled by the prospect of counsel representation, . . . I can clearly represent myself, not saying that I'm refusing representation by counsel, however. I've also been denied access to the jail's law facility! and so . . . would you please assign me adequate counsel or serve a court order on this jail demanding that I be allowed access to the law library each and every day that it's open? Either or both, just as long as I'm allowed to work on my legal defense. . . .

(5) April 6. Attorney Hipskind filed a motion to withdraw. (On April 12, Judge Burka granted Hipskind's motion to withdraw and appointed Attorney Katherine Kravetz to represent appellant.)

(6) April 7. Appellant again wrote Judge Burka, referring to an earlier letter of March 22 (apparently the March 24 motion, see above). He accused Judge Burka of purposely "losing it":

"Looking back over some of your past cases, I've noticed that you have a morbid contempt for both pro se and handwritten motions and express this contempt by perpetually losing these motions. . . . ."

He goes on:

"I would like to have two (2) counselors assigned me (as stipulated by law) due to the strong penalties, the severity of the offense, the amount of research and filing that is expected, and to even out the opposition! Should these or part of these requests be denied I respectfully request a hearing to be held to show cause."

This was not filed until April 12. The bond review motion was denied on April 15.

(7) April 24. Appellant made a handwritten request for a lineup or for any identification procedure except an in-court one or a "photographical identification where I'm not even certain of my rights being protected." He requested that the lineup take place before April 30, when he planned to shave his head because of "a scalp problem" (this motion was not received by the clerk's office until April 26), "or not hold me liable for any character [sic] alterations thereafter."

(8) September 23. Appellant wrote a lengthy letter to Judge Hamilton discussing the "fundamental right" under the Sixth Amendment which allows a defendant

"to present himself and his position to the jury not merely as a witness or through his attorney but as a man on trial who elects to plead his own cause; that he is also possessed of a moral right to, at least, make a personal effort to exculpate himself and that denial of that right is not to be because of the estimations of someone else that the practical position of the defendant will be enhanced through total representation by another. . . [T]hus, I present to you my request that I be allowed to proceed as co-counsel in my defense . . . I've had quite a bit of experience with legal proceedings and where I'm lacking I'm confident that Ms. Kravetz is not and will prove most helpful."5

(9) December 6. Before the pretrial motions hearing began, Judge Burka and appellant had the following exchange: THE COURT: . . . .

All right. Mr. Thomas, it is my understanding that you wish to represent yourself. You do not wish to have an attorney during the trial of this case, only for the purpose of the motion which is technical.

MR. THOMAS: That's correct.

THE COURT: All right. Do you understand that you have an absolute right to an attorney?

MR. THOMAS: Yes, sir.

THE COURT: No one can take this right away from you. Has anyone threatened you in any way or promised you anything at all in order to have you give up your right to an attorney?

MR. THOMAS: No one has promised me anything.

THE COURT: Why do you wish to give up your right to an attorney, sir? Not that you have to give me any reason. It is your right under the Constitution.

MR. THOMAS: I don't choose to have an attorney, sir.

THE COURT: All right.

MISS KRAVETZ: Your Honor, I have . . . advised Mr. Thomas that I would represent him on the motion. I have also advised him that I would be present, sitting somewhere nearby during the time of trial so if there are legal questions that arise, I can advise him.

THE COURT: It makes no difference to me. Once Mr. Thomas gives up his right to an attorney, he will represent himself. MISS KRAVETZ: I told him I would be present the whole time.6

II

Pro se representation problems stem from two distinct constitutional concerns: one, the express Sixth Amendment right to effective representation of counsel; the other, a recently discovered, but long existing, implied Sixth Amendment right to conduct one's own defense. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

As a means of defending the former, the Supreme Court held, in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), that a trial court must carefully evaluate waivers of the right to counsel to ensure that they are both intelligent and voluntary. This evaluation "must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused." Id. at 464, 58 S.Ct. at 1023. Cf. Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948) (plurality opinion of Black, J., setting forth a list of the factors that should be considered).

More recently, the Supreme Court held that a proper record of the factors justifying the trial court's acceptance of a waiver of counsel was essential:

Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver. [Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962).]

The Faretta opinion, formulating a constitutional right independent of the Sixth Amendment, to "make one's own defense personally," ...

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