Fritz v. Spalding

• Decision Date: 27 July 1982
• Docket Number: No. 80-3413,80-3413
• Citation: 682 F.2d 782
• Parties: Lewis Donald FRITZ, Appellant, v. James SPALDING, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 782

682 F.2d 782

Lewis Donald FRITZ, Appellant, v. James SPALDING, Appellee.

No. 80-3413.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 1982.

Decided July 27, 1982.

David B. Bukey, Seattle, Wash., for appellant.

David R. Minikel, Asst. Atty. Gen., Olympia, Wash., for appellee.

Appeal from the United States District Court for the Western District of Washington.

Before KENNEDY, FARRIS and NORRIS, Circuit Judges.

NORRIS, Circuit Judge:

On the morning of his state court trial, petitioner Fritz made a motion to defend pro se. The trial court denied the motion and the Washington Court of Appeals affirmed on the previously unconsidered ground that the motion was a tactic to delay the start of trial. The United States District Court denied Fritz's petition for a writ of habeas corpus on the ground that his motion to defend pro se was untimely. We reverse and remand for an evidentiary hearing.

I

In April 1975, Fritz was charged by the state of Washington with armed robbery. He jumped bail, but was rearrested in Florida and extradited to Washington in October 1976. He was scheduled to stand trial in December 1976.

Four days before the scheduled trial, Fritz's attorney moved to withdraw as counsel, explaining that he and Fritz could not agree on a defense strategy. The trial court granted the motion and appointed a public defender (Olson). Trial was rescheduled for February 2, 1977.

Thirty days before the February trial, Fritz moved to represent himself, asserting that Olson had not begun to prepare a defense. Olson and Fritz then met, and Fritz withdrew the motion.

On the morning of the afternoon trial, Olson moved to withdraw as counsel and to allow Fritz to represent himself. Olson stated that he and Fritz had "a very honest open disagreement and fundamental difference" about the defense, and that both had previously believed their differences had been resolved. Olson and Fritz explained that Fritz wanted to defend on the ground of temporary insanity, while Olson intended to show that Fritz lacked the requisite intent to rob.

Olson moved alternatively for a 2-3 day continuance to locate a witness necessary to the "intent" defense. The state opposed the continuance on the ground that it was having difficulty keeping track of its witnesses and that Fritz had already delayed trial by jumping bail and fighting extradition. After a hearing, the presiding judge denied both motions.

That afternoon, before the trial judge, Olson renewed his motion to withdraw. After further hearing, the trial judge denied the motion on the ground "that the defendant is not capable of knowingly, understandingly, and intelligently waiving counsel in the cause herein, nor is he competent to act as his own counsel."

Fritz was convicted and sentenced to life imprisonment. On appeal, the Washington Court of Appeals held that Fritz was competent to defend himself, but affirmed the denial of his motion on the previously unconsidered ground that it was a tactic "to delay his scheduled trial and obstruct the orderly course of the administration of justice." State v. Fritz, 21 Wash.App. 354, 365, 585 P.2d 173, 180 (1978). The Washington Supreme Court denied review.

Fritz then petitioned for a writ of habeas corpus under 28 U.S.C. § 2254, and moved for an evidentiary hearing. After review of the state court record, a federal magistrate concluded that an evidentiary hearing was unnecessary, and that Fritz's motion for self-representation on the morning of trial was untimely because it would have resulted in delay. The district court adopted the magistrate's report and denied habeas relief.

II

A

The constitutional right of self-representation, recognized in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), must be timely asserted. United States v. Kizer, 569 F.2d 504, 507 (9th Cir.), cert. denied, 435 U.S. 976, 98 S.Ct. 1626, 56 L.Ed.2d 71 (1978). "A defendant must (however) have a last clear chance to assert his constitutional right ... before meaningful trial proceedings have commenced." United States v. Chapman, 553 F.2d 886, 895 (5th Cir. 1977). Thus, a motion to proceed pro se is timely if made before the jury is empaneled, unless it is shown to be a tactic to secure delay. Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir. 1982); Chapman, 553 F.2d at 893-95.

Fritz asserted his Faretta right on the morning of an afternoon trial, before any trial proceedings had begun. It was therefore timely as a matter of law, unless it was made for the purpose of delay.

B

The district court made no finding of purpose to delay. Rather, in ruling that Fritz's motion was untimely, the court relied solely on the effect of delay. The court reasoned that Fritz would have needed a continuance to prepare his insanity defense, and that the resulting delay, in the wake of prior delays, would have prejudiced the state.

Delay per se is not a sufficient ground for denying a defendant's constitutional right of self-representation. Any motion to proceed pro se that is made on the morning of trial is likely to cause delay; a defendant may nonetheless have bona fide reasons for not asserting his right until that time, see Chapman, 553 F.2d at 888-89, and he may not be deprived of that right absent an affirmative showing of purpose to secure delay.

In determining whether a defendant's request to defend himself is a tactic to secure delay, the court may, of course, consider the effect of delay. A showing that a continuance would be required and that the resulting delay would prejudice the prosecution may be evidence of a defendant's dilatory intent. In this case, for example, where Fritz's pre-trial conduct had already caused substantial delay, a showing that his motion included a request for a continuance would be strong evidence of a purpose to delay. The inquiry, however, does not stop there. The court must also examine the events preceding the motion, to determine whether they are consistent with a good faith assertion of the Faretta right and whether the defendant could reasonably be expected to have made the motion at an earlier time.

Because the district court's inquiry was too narrow, and was based on an apparent misapprehension of the timeliness rule, we remand for a determination of whether Fritz's motion was a tactic to delay the start of trial.

III

The district court also denied Fritz's motion for an evidentiary hearing, on the ground that the state-court record amply supports a finding of untimeliness. Because the district court applied an incorrect legal standard of timeliness, it did not determine whether the state-court record supports a finding of purpose to delay. After review of the state-court record, we conclude that Fritz is entitled to an evidentiary hearing on that issue.

In Townsend v. Sain, 372 U.S. 293, 313, 83 S.Ct. 745, 757, 9 L.Ed.2d 770 (1963), the Supreme Court held that a habeas petitioner has a right to an evidentiary hearing in federal court, if, inter alia, "the material facts were not adequately developed at the state...