Kleinbart v. United States

• Decision Date: 30 January 1981
• Docket Number: No. 11932.,11932.
• Citation: 426 A.2d 343
• Parties: Michael N. KLEINBART, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

426 A.2d 343

Michael N. KLEINBART, Appellant, v. UNITED STATES, Appellee.

No. 11932.

District of Columbia Court of Appeals.

Argued March 15, 1979.

Decided January 30, 1981.

COPYRIGHT MATERIAL OMITTED

Nicholas D. Dale, Washington, D. C., appointed by this court, for appellant.

William J. Birney, Asst. U. S. Atty., Washington, D. C., for appellee. Earl J. Silbert, U. S. Atty., Washington, D. C., at the time the brief was filed, John A. Terry and Michael L. Lehr, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before GALLAGHER and MACK, Associate Judges, and YEAGLEY, Associate Judge, Retired.

YEAGLEY, Associate Judge, Retired:

On July 1, 1975, appellant was charged in an indictment with first degree murder while armed (D.C.Code 1973, §§ 22-2401, -3203), first degree murder D.C.Code 1973, § 22-2401), and carrying a pistol without a license (D.C.Code 1973, § 22-3204). At his first trial, the jury was unable to reach a verdict on the two murder counts and a mistrial was declared, but he was found guilty on the weapons charge, which was subsequently reversed by this court in Kleinbart v. United States, D.C.App., 388 A.2d 878 (1978).¹

When appellant was retried, the jury found him guilty of first degree murder while armed. He was sentenced to 20 years to life and this appeal followed. Appellant urges numerous grounds for reversal. For the reasons which follow, we remand for a hearing to determine whether exculpatory material existed which was suppressed in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and for trial on the insanity defense. The evidence on which the conviction was based may be summarized as follows:

On the afternoon of May 16, 1975, appellant's wife, Gladys Kleinbart, was in a local restaurant when Tyrone Bennett, the deceased, entered the restaurant and slapped her twice because "she had got into his business." Mrs. Kleinbart threatened to have him put in jail and Mr. Bennett left.

Mrs. Kleinbart was very upset about the incident and told her husband about it later. Meanwhile Mr. Bennett was angry because of the threat that Mrs. Kleinbart would have him locked up. Bennett made various threats against appellant to third persons and word got back to appellant that Bennett was "out to get him." Appellant went to a friend's apartment to retrieve a gun he had loaned to the friend, allegedly because he had been advised to protect himself against Bennett.

On May 17, appellant and his wife returned to the restaurant. Margaret Teano and Thomas Butler, acquaintances of both appellant and the deceased, were also there. Ms. Teano testified that she noticed appellant had a gun on him. Appellant told her that his wife would not have Bennett put in jail, but that Bennett should not have hit her. He asked Ms. Teano where Bennett was (she did not know) and told her to tell Bennett he was looking for him. Ms. Teano then borrowed Butler's car and left the restaurant. At the same time appellant and his wife left in a taxi with three other people. Ms. Teano drove to the corner of 8th and M Streets, where she saw Bennett, who started to walk toward her car.

Appellant also had driven to this corner. His wife, seeing Bennett, shouted "there he is" and appellant fired a shot. (He testified that it was a shot in the air to scare Bennett). Bennett yelled to Ms. Teano "give me the shotgun" and made a motion toward the car while Ms. Teano opened the car door and reached toward him. Appellant then fired a second shot, which hit and killed Bennett.

I. Pro Se Defense

After appellant's first trial,² he filed a motion on April 21, 1976 to proceed pro se before Judge Norma Johnson, and requested that Mr. Warren Nighswander be permitted to assist in his retrial scheduled for April 26th. On April 22nd, Mr. Nighswander sought a continuance for additional time to prepare for trial. During the hearing on the two motions, appellant informed the court that he had retained another attorney, and that if that attorney was unable to provide representation, he would seek to continue pro se.

On April 26th, when the case was called for trial, Mr. Shorter, appellant's retained counsel, informed the court that he was unable to represent appellant and the motion to proceed pro se was renewed. A hearing was set for May 11, at which time appellant filed another motion for permission to choose his own court-appointed attorney or, in the alternative, to represent himself with Mr. Nighswander's assistance. The court denied the first motion, but granted the latter, and appointed Mr. Nighswander as amicus curiae.

Appellant, at another pretrial hearing on June 9th asked the court to appoint a Mr. Lewis Kleinman, retained by appellant's sister, to act as co-counsel for appellant. A further hearing was scheduled and Mr. Muse, defense counsel at the first trial, was permitted to withdraw.³

In September, the case was re-assigned to Judge Nunzio, who appointed Mr. Robbins as counsel for appellant. It was at appellant's first status hearing before Judge Nunzio that the court advised him that it would "look to" the attorney. Appellant filed a "Motion to Continue Defendant as Counsel" and later wrote two letters, received November 11th and 17th, in which he complained that he had not yet heard from Mr. Robbins. Meanwhile, Robbins made a motion to the court requesting clarification of his duties with respect to appellant's representation. The court's Order in response thereto stated:

It further appears that the basis of the defendant's claim for self-representation lies in his belief that he is most qualified to litigate the factual aspects of his defense. In light of this belief, the Court will allow the defendant as much latitude in his self-representation in this area as the rules of evidence and the interests of justice allow.

The court directed that:

1. Mr. Robbins shall represent the defendant at all purely legal proceedings, such as pretrial conferences, bench conferences, voir dire, and jury selection.

2. Mr. Robbins shall raise all evidentiary objections during the course of trial.

3. All future pleadings by the defense shall be filed by and through Mr. Robbins to insure compliance with the rules of the Court.

On December 16, 1976, appellant filed a "Motion to Vacate Order Denying Pro Se Right" and on December 29, a "Motion to Withdraw Counsel," in which appellant claimed dissatisfaction with Mr. Robbins' appointment and performance. The court denied both motions.

Prior to trial, the court directed (1) that appellant conduct all examinations from behind counsel table; (2) that appellant file all evidentiary objections in writing at the conclusion of trial;⁴ and (3) that Mr. Robbins alone participate in bench conferences during trial.

Appellant filed two more motions prior to trial in which he objected to Mr. Robbins' participation. However, the objections were not renewed when trial commenced on January 12, 1977.

Appellant cites numerous isolated comments from the bench in an attempt to support his allegation of denial of appellant's constitutional right to self-representation. He points specifically to the appointment of Mr. Robbins, claiming he was more than mere "standby counsel," and to the court-imposed limitations on his own trial participation as unconstitutional deprivations. However, after a review of the entire transcript, we find that appellant was indeed permitted to present "his defense." Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d 562 (1975). We recognize that any violation of the defendant's right to pro se representation, based as it is upon the Sixth Amendment right to counsel, requires reversal as presumptively prejudicial. Faretta v. California, supra at 836, 95 S.Ct. at 2541. See Jackson v. United States, D.C.App., 420 A.2d 1202 (1979).

Several weeks before trial, Faretta "clearly and unequivocally declared" to the trial court his desire to represent himself. Id. at 836, 95 S.Ct. at 2541. The record revealed that he was "literate, competent, and understanding, and voluntarily exercising his informed free will." Faretta v. California, supra. Nevertheless, the trial court forced the defendant to "accept against his will a state-appointed public defender," and "required that Faretta's defense be conducted only through the appointed lawyer. . . ." Id. at 811, 95 S.Ct. at 2529. Faretta was thus deprived of his constitutional right to present any of "his [own] defense."

However, in Faretta at 836 n. 46, 95 S.Ct. at 2541 n. 46, the Supreme Court explicitly condoned an appointment, even over a defendant's objection, of a stand-by counsel to "aid the accused if and when the accused requests help," citing United States v. Dougherty, 154 U.S.App.D.C. 76, 87-89, 473 F.2d 1113, 1124-26 (1972), as an example. In Dougherty, supra, the court denied motions of the nine codefendants for pro se representation. The court required that motions, objections, and examination of witnesses be made through counsel. It did, however, agree to permit each defendant to make a five-minute opening statement and to testify in narrative form at reasonable length without a specific time limit. Dougherty, supra at 82, 473 F.2d 1113. Thus, the circuit addressed the question "as to whether the overall format of the trial was such, in terms of the latitude given to the defendants, that they in effect had the substance though not the form of pro se representation," id. at 92, 473 F.2d 1113, but found that "[t]he court's indulgence of defendants undoubtedly appeared as exactly that, a matter of grace — as something `extra' given to them beyond their due rights — which undercuts the objective of preserving defendant's personal autonomy and responsibility in the courtroom." Id. at 92, 473 F.2d 1113.⁵ Judge Nunzio, on the other hand, made it abundantly clear from the outset, and reminded the jury frequently that Mr. Kleinbart was acting as his own attorney and...