Johnson v. United States, 17274.

Citation318 F.2d 855
Decision Date10 June 1963
Docket NumberNo. 17274.,17274.
PartiesRay Lee JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Robert B. Olsen, Kansas City, Mo., made argument for appellant and filed brief.

John L. Kapnistos, Asst. U.S. Atty., Kansas City, Mo., made argument for the appellee and was on the brief with F. Russell Millin, U.S. Atty., Kansas City, Mo.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and YOUNG, District Judge.

VAN OOSTERHOUT, Circuit Judge.

Defendant Ray Lee Johnson appeals from his conviction upon an indictment charging him with escape from federal custody in violation of 18 U.S.C.A. § 751. Defendant was tried and found guilty by a jury and he was sentenced to three years imprisonment, said sentence being made consecutive to the term defendant was serving at the time of his escape.

Defendant filed timely notice of appeal and a petition for leave to proceed in forma pauperis. The trial court permitted the filing of notice of appeal but denied defendant's right to proceed in forma pauperis, the court finding that the appeal was frivolous, without merit, and not taken in good faith. Upon petitioner's application to this court for leave to appeal in forma pauperis notwithstanding the trial court's certificate, we filed an opinion in Johnson v. United States, 8 Cir., 313 F.2d 953, permitting the prosecution of the appeal in forma pauperis upon the following issues:

1. Violation of defendant's constitutional right to be represented by counsel.

2. Violation of defendant's right not to be examined as a witness against himself. (This issue was abandoned on appeal.)

Mr. Robert B. Olsen of the Kansas City, Missouri, Bar was appointed by this court to represent the defendant upon this appeal. Mr. Olsen by supplemental order was authorized to assert any errors that he might deem appropriate in support of the appeal.

We are indebted to Mr. Olsen for the excellent brief filed and the oral argument made upon behalf of the defendant. Mr. Olsen has performed his duties with skill and diligence.

Defendant upon this appeal raises two issues:

I. The court erred in failing and refusing to appoint new counsel for appellant after counsel originally appointed withdrew from the case before trial.

II. The court erred in imposing upon appellant a more severe sentence than would otherwise have been imposed because appellant claimed his constitutional right to trial by jury.

We shall now give the asserted errors consideration.

I.

A defendant in a federal criminal trial, by virtue of the Sixth Amendment, is entitled to representation by counsel in the trial court. If the defendant is without funds, the court is required to appoint competent counsel to represent him. The trial court recognized this constitutional right of the defendant by appointing Mr. Joseph L. Flynn, of the St. Joseph, Missouri, Bar, as counsel for defendant.

It is equally well-settled that a defendant charged with a federal crime may waive his right to representation by counsel "if he knows what he is doing and his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241-242, 87 L.Ed. 268; Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 82 L.Ed. 1461; Hayes v. United States, 8 Cir., 296 F.2d 657, 668; Lipscomb v. United States, 8 Cir., 209 F.2d 831, 834; Glenn v. United States, 5 Cir., 303 F.2d 536, 540; Igo v. United States, 10 Cir., 303 F.2d 317, 318; Arellanes v. United States, 9 Cir., 302 F.2d 603, 610; Watts v. United States, 9 Cir., 273 F.2d 10, 12.

A court cannot force the services of an attorney upon a defendant against his wishes. The issue of whether the defendant knowingly and intelligently has waived his right to be represented by counsel is usually one of fact.

It is apparent from the record that the trial court based its order relieving Mr. Flynn as counsel upon a determination that the defendant had knowingly and intelligently waived his right to be represented by counsel. The burden is upon the defendant to demonstrate that such finding is without substantial evidentiary support. In United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248, the Court states, "Of course, the absence of a showing of waiver from the record does not of itself invalidate the judgment. It is presumed the proceedings were correct and the burden rests on the accused to show otherwise." See also, Watts v. United States, supra.

In our present case, the record supports a finding of waiver of counsel. Mr. Joseph L. Flynn, a member of the St. Joseph, Missouri, Bar, a competent, experienced and able trial attorney, who had previously served as an assistant United States Attorney for some seven years, was appointed counsel for the defendant by the court prior to defendant's arraignment in March of 1962 and continued to serve in such capacity until his release on September 6, 1962. The proceedings before the court on that date in the presence of the defendant, so far as material, are as follows:

"Mr. Flynn: * * * The defendant has indicated his desire that I not represent him, and I withdraw as counsel in the case that he might represent himself. He desires to represent himself.
* * * * *
"Mr. Flynn: To straighten this out, I might state that I advised my client what my opinion was in these various matters, and I have advised him, of course, that it is my duty to represent him and protect all of his rights in the matter, and represent him to the best of my ability, but I have told him also what I consider the law to be, and by reason thereof, he prefers to represent himself.
* * * * *
"The Court: Well, all right. I suppose under the law you are entitled to a trial. I have appointed Mr. Flynn as your attorney and he is a good lawyer. He was in the District Attorney\'s office for a number of years. He is in the practice and I know of no man who is more capable of advising you as to the law than Mr. Flynn. You say you do not want Mr. Flynn to represent you?
"Defendant Johnson: No, sir, he has had six months and he has done nothing."
* * * * *
"Defendant Johnson: That is what I say. I believe Mr. Flynn would do it the best he could, but he doesn\'t understand the points that I want.
"The Court: I see, he doesn\'t understand. You realize you are entitled to have a lawyer if you want one. The Court has appointed a lawyer for you and a good lawyer. If you do not want this lawyer to represent you, you have a perfect right to try your own case, but I am not going to appoint another lawyer for you. I am not going to do that. I have done all that the law requires. I have appointed a good lawyer and he has advised you, and if you insist on a trial, I suppose Mr. Flynn should sit here and see that the defendant is properly given a fair trial. If you do not want him to do that, then I think he must be excused. Is that what you want?
"Defendant Johnson: Well, I would like to see that my Constitutional rights —
"The Court: I have done all I can do for you. I am not going to appoint another lawyer. If you want Mr. Flynn to withdraw, all right, but I am not going to appoint another lawyer.
"Defendant Johnson: I don\'t want to cause this man any more inconvenience.
"The Court: You are not causing him any inconvenience, but it is his duty as an officer of this Court to represent you and present whatever there is. It is his duty to advise you as to what he believes the law to be. * * *
* * * * *
"The Court: Yes, I suppose so. I don\'t want to discuss the proposition with you, but the question is, do you want Mr. Flynn to continue to represent you?
"Defendant Johnson: No, sir, I don\'t.
"The Court: Mr. Flynn will be permitted to withdraw on the statement of the defendant, but the Court will not appoint another lawyer to represent this defendant.
"If he wants a trial of this case and is unable to obtain counsel, you will have to present it yourself, because I am not going to ask another lawyer to represent you. You are entitled to be represented and you have had a chance and the Court is going to excuse him."

Defendant in his brief states:

"No question is here raised concerning the competency of Mr. Flynn. From all that appears in the record, he is not only well trained in the law but also experienced in the field of criminal law. Neither does appellant complain of Mr. Flynn\'s advice to him concerning the validity or invalidity of his defenses to the charge. Whether sound or unsound, that advice was given in accordance with the duty of counsel. Nor can complaint be made of Mr. Flynn\'s advice to appellant that he plead guilty, or waive jury trial, or stipulate certain of the facts. Such advice may be given, and is often given, by the most competent, loyal and conscientious of counsel."

Defendant's complaint is that Mr. Flynn failed to exhibit loyalty and conscientiousness for the best interest of his client in that he put his client in a bad light with the court by stating to the court that his client refused to accept his advice to waive a jury and that he did not exert efforts to soften the court's attitude toward the defendant. A short answer to such contention would be that such complaint or challenge was not made to the trial court. We shall, however, consider such contention upon its merits.

It is quite true that the court expressed a firm view that no fact issue was presented on defendant's guilt and that any legal defenses could adequately be considered by the court, and that a jury trial would be a waste of taxpayers' money. The record shows defendant was serving a sentence imposed by a federal court at the time he escaped. At the trial he admitted that he left the penal institution without consent or authorization. We pointed out in our prior opinion in this case the complete lack of any meritorious defense.

Defendant at times indicated both to Mr. Flynn and to Mr. Randolph, an attorney he sought to employ and with whom he...

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