Giacalone v. Lucas, 20707.

• Decision Date: 30 July 1971
• Docket Number: No. 20707.,20707.
• Citation: 445 F.2d 1238
• Parties: Vito GIACALONE, Petitioner-Appellant, v. William LUCAS, Sheriff, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

445 F.2d 1238 (1971)

Vito GIACALONE, Petitioner-Appellant, v. William LUCAS, Sheriff, Respondent-Appellee.

No. 20707.

United States Court of Appeals, Sixth Circuit.

July 30, 1971.

Joseph W. Louisell, Detroit, Mich., for petitioner-appellant.

Stewart H. Freeman, Asst. Sol. Gen., Lansing, Mich., for respondent-appellee; Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Mich., on brief.

Before PHILLIPS, Chief Judge, and CELEBREZZE and McCREE, Circuit Judges.

CELEBREZZE, Circuit Judge.

This appeal is of an order of the United States District Court for the Eastern District of Michigan dismissing, without a hearing, the Appellant's petition for writ of habeas corpus. The petition arises out of the Appellant's conviction, by a jury, for unlawful possession of a blackjack, Mich.Stat.Ann. § 28.421, M.C. L.A. § 750.224 (1960), and the imposition of a four-year nine-month to five-year prison sentence upon him. During and after his trial, the Appellant raised the following issues, inter alia: first, whether the state trial judge's refusal to grant the Appellant a continuance until his chief counsel was released from the hospital, where he was undergoing diagnostic tests, deprived the Appellant of due process of law; second, whether the search of the Appellant's home, incident to his arrest, which resulted in the discovery and seizure of the blackjack, was unreasonable. These issues were treated in a scholarly, 100-page series of unreported opinions by the trial judge, Honorable Victor J. Baum; they were considered by the Michigan Court of Appeals, which affirmed the Appellant's conviction, People v. Giacalone, 23 Mich. App. 163, 178 N.W.2d 162 (1970); and by the Michigan Supreme Court, 383 Mich. 786 (1970), which denied the Appellant's motion for leave to appeal, two justices dissenting. Having exhausted his state remedies, the Appellant sought habeas corpus in the District Court. Having lost there, he appeals to this Court. We affirm.

I.

A motion by a criminal defendant for a continuance of the trial until his retained counsel can be present is directed to the sound discretion of the trial court. Ungar v. Sarafite, 376 U.S. 575, 589-590, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964); Kobey v. United States, 208 F.2d 583, 592-594 (9th Cir. 1953); United States v. Arlen, 252 F.2d 491 (2d Cir. 1958). Cf. Callahan v. Russell, 423 F.2d 450, 454-456 (6th Cir. 1970); United States v. Knight, 443 F.2d 174 (6th Cir. 1971).

Proper exercise of this discretion requires a delicate balance between the defendant's right to adequate representation of counsel at trial, and the public interest in the prompt and efficient administration of justice. On the one hand, a court may not insist upon expeditiousness for its own sake, but, on the other, a defendant cannot be allowed to insist upon unreasonable delay or inconvenience in the completion of his trial. What is a reasonable delay varies depending upon all the surrounding facts and circumstances. Williams v. United States, 332 F.2d 36 (7th Cir. 1964), cert. denied, 379 U.S. 976, 85 S. Ct. 672, 13 L.Ed.2d 566; Mende v. United States, 282 F.2d 881 (9th Cir. 1960), cert. denied, 364 U.S. 933, 81 S.Ct. 379, 5 L.Ed.2d 365, reh. denied, 365 U.S. 825, 81 S.Ct. 689, 5 L.Ed.2d 704; Relerford v. United States, 309 F.2d 706, 708 (9th Cir. 1962); Relerford v. United States, 288 F.2d 298, 301-302 (9th Cir. 1961); Lee v. United States, 98 U.S.App.D.C. 272, 235 F.2d 219, 221 (1956); Shores v. United States, 80 F.2d 942 (9th Cir. 1936), cert. denied, 297 U.S. 705, 56 S. Ct. 501, 80 L.Ed. 993; Lias v. United States, 51 F.2d 215 (4th Cir. 1931), aff'd per curiam, 284 U.S. 584, 52 S.Ct. 128, 76 L.Ed. 505; Hardie v. United States, 22 F.2d 803 (5th Cir. 1927), cert. denied, 276 U.S. 636, 48 S.Ct. 421, 72 L. Ed. 744. Some of the factors to be considered in the determination of reasonableness are: the length of the delay requested; whether the lead counsel has associates prepared to try the case in his absence; whether other continuances have been requested and received; the convenience or inconvenience to litigants, witnesses, opposing counsel, and the court; whether the delay seems to be for legitimate reasons, or whether it is purposeful and dilatory; and other relevant factors. Considering the totality of circumstances in the instant case, we believe that the trial judge's refusal to grant a continuance until the Appellant's chief counsel, Mr. Joseph W. Louisell, left the hospital where he was undergoing diagnostic tests for a heart condition, was proper, and that it did not infringe upon the Appellant's constitutional rights.

The Appellant was arrested on May 14, 1968 and charged with the unlawful possession of a blackjack. The case was docketed before the Michigan Circuit Court for trial on October 14, 1968, however, the trial judge granted a defense request for a continuance until October 21, 1968, in order that Mr. Louisell have an opportunity to prepare and argue another case that week. One other continuance for the convenience of defense counsel was granted by the trial court before the case ultimately came to trial.

At the time the Appellant was arrested and charged with possession of the blackjack, he was also charged with two other felonies. The task of docketing these three cases for trials at times when Mr. Louisell would be available proved to be a formidable one. For one reason, Mr. Louisell suffered from a heart condition, which required attention. On September 2, 1968, Mr. Louisell completed arrangements to enter the Ann Arbor, Michigan hospital for certain non-emergency, diagnostic tests on Sunday, November 10, 1968. Compounding the problem further was the fact that Mr. Louisell had a very heavy caseload. In particular, Mr. Louisell was defense counsel in a criminal case in the federal court in Detroit, which was to be tried in November. The district judge to whom the federal case had been assigned anticipated that it would be a protracted affair, with over two hundred witnesses.

After some delicate negotiations, an agreement was reached between Mr. Louisell, the trial judge, and the district judge, under which the four cases in which Mr. Louisell was defense counsel could be heard within a reasonable time, and without interfering with each other or with Mr. Louisell's appointment in Ann Arbor. Under the agreement, to which Mr. Louisell gave complete assent, the Appellant would be tried on the first of his charges in early November, then tried on the blackjack charge on Thursday, November 14, 1968, then tried on the third charge after the federal case in which Mr. Louisell was defense counsel was completed. Under the agreement, the trial in the federal court was to begin on Monday, November 18, 1968. Mr. Louisell gave his assent to the agreement on November 7, 1968. According to the trial judge, Mr. Louisell assured the court that his tests would be completed, and that he would be prepared to try the blackjack case on November 14.

Mr. Louisell practices in the firm of Louisell and Barris, with two other lawyers. Mr. Ivan E. Barris, his partner, and Mr. Neil H. Fink, his associate, collaborated, according to the undisputed findings of the trial court, on all the cases in which the Appellant was involved. Mr. Fink and Mr. Barris shared the responsibilities of examination of witnesses and arguing to the jury with Mr. Louisell. According to the trial court, the three worked as a team. As for the ability of the three lawyers, the trial court stated:

"The three lawyers are indeed remarkable men. All three are excellent advocates. Each is an outstanding craftsman of the law. Each is gifted in establishing and maintaining rapport with juries. Each is talented in eliciting direct testimony. Each is brilliant in cross-examination. Each is superb in arguing to juries. Each is a master in arguing law to judges. Each is capable of giving the defendant an outstanding defense."

From the record, it is undisputed that all three lawyers were familiar with, and prepared to try, the blackjack case on November 14, 1968.

On Tuesday, November 12, 1968, Mr. Fink informed the trial judge that Mr. Louisell's tests would last longer than they had previously anticipated, and that Mr. Louisell would not be available for trial on Thursday, November 14, 1968, when the blackjack case was scheduled. Mr. Fink requested a continuance in order that Mr. Louisell be able to remain in the hospital and still try the case. When asked how long a continuance would be necessary, Mr. Fink was unable to say. No medical certificate or affidavit was presented to the trial court. The trial judge spoke on more than one occasion with Mr. Louisell's doctor in Ann Arbor, and was informed that Mr. Louisell's life was not in danger, but that it was recommended that he remain in the hospital to complete the tests. Mr. Fink reminded the trial court that although the federal case had been scheduled for November 18, the district court had expressed a willingness to begin the trial a few days later, if necessary; and he stated that the blackjack case would not take more than a day to try. Nevertheless, the trial court denied the continuance, compelling the Appellant to trial with Messrs. Barris and Fink as his attorneys. The Appellant did make oral protests that he wanted Mr. Louisell as his counsel, but, when informed of the denial of the continuance, made no objection whatsoever to being represented by Messrs. Barris and Fink, and made no attempt to obtain other counsel.

The Appellant was tried and convicted. There is no contention that Messrs. Barris and Fink did not perform well, or that the Appellant's trial itself was anything other than a model of fairness.

Nevertheless, the Appellant continued to object to the denial of the continuance. On November 29, 1968, he filed a motion for a new trial, reciting the denial of a continuance as one of the grounds. No affidavit was filed and no sworn testimony was...