McKee v. Harris

• Decision Date: 28 May 1981
• Docket Number: No. 475,D,475
• Citation: 649 F.2d 927
• Parties: Thomas McKEE, Petitioner-Appellant, v. David HARRIS, Superintendent, Green Haven Correctional Facility, Stormville, New York, Respondent-Appellee. ocket 80-2202.
• Court: U.S. Court of Appeals — Second Circuit

Page 927

649 F.2d 927

Thomas McKEE, Petitioner-Appellant, v. David HARRIS, Superintendent, Green Haven Correctional Facility, Stormville, New York, Respondent-Appellee.

No. 475, Docket 80-2202.

United States Court of Appeals Second Circuit.

Argued Dec. 3, 1980.

Decided May 28, 1981.

Richard Harbus, New York City, for petitioner-appellant.

Tyrone Mark Powell, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., of N. Y., Gerald J. Ryan, Asst. Atty. Gen., New York City, of counsel), for respondent-appellee.

Before OAKES and MESKILL, Circuit Judges, and WERKER, District Judge. ^*

MESKILL, Circuit Judge:

Thomas McKee appeals from a judgment of the United States District Court for the Southern District of New York, Sweet, J., denying his petition for a writ of habeas corpus. In his petition to the district court, McKee raised a host of claims, ¹ the most serious of which was that he had been denied his Sixth Amendment right to counsel. The petition was referred to Magistrate Kent Sinclair, who concluded that McKee's Sixth Amendment rights had been violated and recommended that the writ be granted.

                2  Judge Sweet, after an extensive review of the record, declined to adopt the magistrate's recommendation and refused to grant the writ.  3  The decision below is reported at 485 F.Supp. 866.  Shortly thereafter the district court granted McKee's application for a certificate of probable cause.  On this appeal, McKee raises only the Sixth Amendment claim.  For the reasons stated below, we affirm
                

BACKGROUND

McKee was arrested and indicted in the late summer of 1975 for possession and sale of a controlled substance. Attorney Richard Occhetti of the New York Legal Aid Society was appointed to represent the defendant. Occhetti, who had already represented McKee in a related case, began the process of impanelling a jury. McKee, however, under circumstances set forth below, rejected Occhetti's assistance and, after failing to persuade the court to appoint new counsel, chose to represent himself with the assistance of a "legal advisor." The defendant was convicted on May 5, 1976 and was subsequently sentenced to an indeterminate term of seven years to life imprisonment. The Appellate Division unanimously affirmed, People v. McKee, 64 A.D.2d 873, 406 N.Y.S.2d 943 (1st Dep't 1978), and the Court of Appeals denied leave to appeal, People v. McKee, 46 N.Y.2d 842, 414 N.Y.S.2d 1035, 386 N.E.2d 1099 (1978). Shortly after he began serving his sentence ⁴ McKee filed the habeas corpus petition which is the subject of this appeal.

On the morning of the second day of jury selection, a Friday, the following exchange took place between New York Supreme Court Justice Dorothy Cropper and McKee:

THE COURT: Mr. McKee, I understand you wish to make an application. Stand up and make it.

THE DEFENDANT: Your Honor, the attorney here already said when I first come in here, him and the District Attorney had already deliberating on my case, telling me that I am already guilty before I even get a trial, so if they say that to me, I don't need him, he can go and join the D.A. I don't need him to defend me. Just have him over there with him, because I don't need nobody like that.

THE COURT: Mr. McKee, are you saying that you want to represent yourself?

THE DEFENDANT: I am not a fool. No, I don't want to represent myself. I want a lawyer, but I don't want him.

THE COURT: You mean you want the Court to assign you another lawyer?

THE DEFENDANT: Assign me another lawyer, but not this guy here.

THE COURT: That application is denied.

McKee, however, would not acquiesce in the court's resolution of his request. When Mr. Occhetti attempted to resume his representation of the defendant, McKee interrupted and the following heated colloquy ensued:

THE DEFENDANT: He is not representing me and I won't let him speak on my case. He cannot speak on my case. We will have no representation at all.

THE COURT: I have told you to be quiet and listen to what the Court has to tell you. Now, kindly listen to the Court. Now, you have an attorney.

THE DEFENDANT: I don't have one. I don't want him.

THE COURT: Then you have to retain your own attorney. The Court will not assign you an attorney.

THE DEFENDANT: Well, then, tell him he is relieved and I will get one.

THE COURT: Listen to me, please. The Court will permit you to represent yourself if you wish to do that.

THE DEFENDANT: I have to do that, then until I can get a lawyer. Now, I will just state on the record that I don't want to represent myself. I want an attorney. Please put that in the record.

THE COURT: Mr. McKee, do I understand that you don't want to represent yourself?

THE DEFENDANT: I do not want to represent myself, but I do not want this attorney, but if I have to represent myself, I will do it to the best of my ability. I am not afraid to do that.

THE COURT: Mr. McKee, you best listen carefully to what your choices are.

The court then explained that McKee could (1) continue with Occhetti as counsel, (2) represent himself, or (3) retain a private attorney. As to the first option, McKee reiterated, "I am not going to let this man represent me when he done stated plain as day that I am guilty already (and) that my chances are slim " As to the second and third choices, McKee repeated that he did not want to represent himself and could not afford to hire his own lawyer. Finally, after some further acerbic exchanges, ⁵ McKee agreed to represent himself with the help of a "legal advisor." ⁶ Elmer Ferber, an Appellate Division lawyer who happened to be in the courthouse, was assigned to sit at counsel table and assist McKee. At the request of the defendant, the court inquired whether Mr. Ferber would be able to proceed as defense counsel by Monday but, upon receiving a negative response, directed that the trial proceed. The court instructed Mr. Occhetti, who had been banished from the counsel table to the rear of the courtroom, to remain available to assist Mr. Ferber, if requested. Occhetti was subsequently recalled from exile to complete the jury selection, after which time he returned to the rear of the courtroom. After a brief trial at the beginning of the following week, McKee was convicted.

DISCUSSION

In seeking this writ of habeas corpus, McKee contends that his Sixth Amendment right to assistance of counsel was denied because he did not effectively waive the assistance of a lawyer. To be effective, a waiver must be knowing, intelligent and voluntary a choice "made with eyes open." Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942). See Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975); Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); United States v. Tompkins, 623 F.2d 824, 827 (2d Cir. 1980). At oral argument, counsel for McKee conceded that the waiver in this case was knowing and intelligent, since McKee relinquished his right to court-appointed counsel with full understanding of the penalties he faced and the pitfalls of self-representation. The issue on this appeal, therefore, is whether McKee's waiver can be said to be voluntary in light of the events which took place on the second day of jury selection.

McKee contends that in electing to represent himself with the help of a legal advisor he was "given no freedom of choice," but rather was "bowing to the inevitable." Appellant's Br. at 15-16 (quoting It is settled in this Circuit that "(o)nce trial has begun a defendant does not have the unbridled right to reject assigned counsel and demand another." United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1357, 35 L.Ed.2d 587 (1973). This Court has long recognized that certain restraints must be put on the reassignment of counsel lest the right be "manipulated so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice." United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963). Therefore, "(i)n order to warrant a substitution of counsel during trial, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict." United States v. Calabro, supra, 467 F.2d at 986. See Maynard v. Meachum, supra, 545 F.2d at 278; United States v. Gutterman, 147 F.2d 540, 542 (2d Cir. 1945). See also R. Chused, Faretta and the Personal Defense: The Role of a Represented Defendant in Trial Tactics, 65 Calif.L.Rev. 636, 645-46 (1977). The question therefore boils down to whether McKee demonstrated good cause for the substitution of assigned counsel.

United States ex rel. Martinez v. Thomas, 526 F.2d 750, 755-56 (2d Cir. 1975)). Of course, the very essence of a voluntary waiver is that it be the product of a free and meaningful choice. Moore v. Michigan, 355 U.S. 155, 164, 78 S.Ct. 191, 196, 2 L.Ed.2d 167 (1957); Wilks v. Israel, 627 F.2d 32, 35 (7th Cir. 1980); Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976). This does not mean, however, that a court may not, under certain circumstances, require the defendant to select from a limited set of options a course of conduct regarding his representation. "A criminal defendant may be asked, in the interest of orderly procedures, to choose between waiver and another course of action as long as the choice presented to him is not constitutionally offensive." Maynard v. Meachum, supra, 545 F.2d at 278. See also Wilks v. Israel, supra, 627 F.2d at 35; United States v. Davis, 604 F.2d 474, 483 (7th Cir. 1979); United States ex rel. Testamark v. Vincent, 496 F.2d 641, 643-44 (2d Cir. 1974), cert. denied, 421 U.S. 951, 95 S.Ct. 1685, 44 L.Ed.2d 105 (1975); United States v. Morrissey, 461 F.2d 666, 670 (2d Cir. 1972). "That petitioner did not particularly like...