People v. Carroll

• Decision Date: 23 February 1983
• Docket Number: Cr. 41330
• Citation: 140 Cal.App.3d 135,189 Cal.Rptr. 327
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. John Walter CARROLL, Defendant and Appellant.

Page 327

189 Cal.Rptr. 327

140 Cal.App.3d 135

The PEOPLE, Plaintiff and Respondent, v. John Walter CARROLL, Defendant and Appellant.

Cr. 41330.

Court of Appeal, Second District, Division 3, California.

Feb. 23, 1983.

Hearing Denied April 20, 1983.

[140 Cal.App.3d 136] Russell Iungerich, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., for plaintiff and respondent.

DANIELSON, Associate Justice.

John Carroll has appealed his conviction of first degree murder (Pen.Code, § 187).

This is a case in which defendant exercised his right to represent himself at trial and, during the People's case, was, from time to time, excluded from the courtroom by court order for conduct which the court considered unacceptable. During these periods of exclusion, no defense counsel was present in the courtroom, and it does not appear that defendant had even such access to the proceedings as could have been provided by electronic means.

Proceeding with trial, under the circumstances of this case, in the total absence of defendant or counsel for the defense, was error. The kind of error which occurred in this case is so fundamental that it goes to the essence of a fair trial. Accordingly, we must reverse and remand for a new trial.

FACTS

Defendant had been living for about six months in an apartment in Long Beach with victim and her two children aged 10 and 11 years. On August 10, 1980, a Sunday, an argument began between defendant and victim. Defendant began to hit her, and the two went into the bedroom. The children could hear an altercation taking place in the bedroom between defendant and the victim, which continued into the night, and the next day. When the children returned from summer school the next day, the bedroom door was closed, and defendant would not let them go in. Defendant left the apartment, taking the children with him, and left them at someone's house. Walter Carroll, defendant's cousin, testified that on Monday, August 11, 1980, he took defendant to the airport, where he caught a plane to Little Rock, Arkansas, before midnight.

On August 14, when the children and a neighbor saw victim's body in the apartment through a window, the police were called. The police officers found victim's body on the bedroom floor. She was determined to have died of multiple injuries which could not have been self-inflicted. No drugs or narcotics were found in her body.

Defendant's cellmate from March of 1981 testified that defendant had told him that victim "was just a slut" and that he "had to kill her."

THE TRIAL

The public defender was appointed to represent defendant on March 24, 1981.

On May 14, 1981, defendant's motion to relieve the public defender and appoint private counsel was made and denied. Defendant then said that he preferred to represent himself rather than have the public defender as counsel. The judge extensively questioned him about this. Defendant said that he had a high school equivalency certificate and a welding certificate, had been employed as a truck driver and a welder, and had once sat through a criminal jury trial.

The court advised him that an experienced public defender would be appointed and recommended that he not represent himself. The court also told him that he was making a mistake, and that he was being granted pro per status with great reluctance. A written form detailing the problems with waiving counsel was read to defendant, and he was questioned about it in open court.

Defendant was also told that he could change his mind "in the near future; that is, within a week," and accept appointed counsel, but that if he changed his mind on the day of trial or during trial, the court would not delay the proceedings to appoint counsel.

On September 14, 1981, when the case was called for motions and trial, defendant moved, on the basis of a written motion he had filed, for appointment of co-counsel, and the court informed him that he had a right to appointed counsel, but not to co-counsel. Defendant also moved again orally to appoint a private attorney, but not the public defender, with the allegation that the public defender had represented the victim and a confidential informant before. The court denied defendant's motion for appointment of co-counsel and ruled that because it was made one day before trial, defendant's request for appointment of counsel was made too late.

On September 15, 1981, defendant told the judge that he wanted counsel appointed because he was incompetent to represent himself. He also requested a continuance. The court denied defendant's request for a continuance because it was his fifth continuance; defendant had failed to make diligent use of his appointed investigator; and the victim's two children had already been Jury selection then began.

flown in from New York as witnesses. The court then denied the motion for appointed counsel on the ground that the motion was untimely and had been made for purposes of further delay when all other methods of delay had failed.

The record of September 15, 1981, reflects that defendant was not present for all of the jury selection. The minute order states that defendant was removed "at his own request and with the court's order in that the defendant continues to disrupt the proceedings."

The record reflects that on the morning of September 16, 1981, while defendant was still absent, the court appointed an attorney solely to advise defendant about jury voir dire and to urge him to attend the trial. That attorney performed that function, but did not appear again in this proceeding.

Defendant returned to court for part of the jury selection. Out of the presence of the jury, the court advised defendant that he would not be forced to attend the trial. Defendant said that he had never intended to waive his right to appointed counsel and again stated that he requested to be represented by a lawyer. He was physically removed from the courtroom, later that morning, while jury selection continued. The trial court said that he had been removed for "disrupting the jury."

Defendant was brought back to the courtroom after the jury had been sworn.

The court advised defendant as follows:

"As indicated, you are entitled to represent yourself throughout the course of trial, should you desire. If you start making statements, disrupting the trial, the court will have to have you removed. The court will not physically force you to stay in trial. The court will physically remove [sic], though, if you disrupt the course of the trial."

Defendant maintained that he had been trying to tell the court that he was not competent to represent himself when he had been removed.

Also on the morning of September 16, 1981, when defendant was given the opportunity to make an opening statement, he again stated that he was not competent to represent himself, and the court told him that he would be removed unless he confined his statement to the evidence. Defendant did not so confine his statement and was again removed from the courtroom. ¹

For the remainder of the morning of September 16, 1981, Dr. Sharon I. Schnittker In defendant's absence, the neighbor who had discovered the corpse testified that defendant had lived in the apartment; he described the discovery of the body. He was not cross-examined, because defendant was still out of the courtroom.

deputy medical examiner, testified to her findings as to the cause of victim's death, with defendant absent. At the beginning of the afternoon session, defendant was brought back into the courtroom. Out of the presence of the jury, the court again advised defendant that he had a right to be present. Dr. Schnittker testified further, and when defendant was offered an opportunity to question her, defendant again announced that he wanted a court-appointed attorney and was removed. ²

Defendant was also absent while the victim's son testified, but defendant was brought into the courtroom so that the son could identify him. While defendant was in the courtroom, the court asked him whether he wanted to cross-examine the witness. Defendant declined on the ground that he was not competent to represent himself. He also declined, on that ground, to cross-examine the victim's daughter, even though he had returned to the courtroom for her testimony.

For the remainder of the trial, defendant remained in the courtroom and cross-examined the other witnesses, including the police officer who was called to the scene, a police criminalist, a police homicide detail officer, and defendant's former cellmate. During cross-examination of these witnesses, defendant said that he was incompetent to represent himself and had asked for counsel or co-counsel to be appointed.

Defendant moved during the defense case to have another inmate of the county jail appointed as co-counsel, and this motion was denied, outside the presence of the jury.

As part of defendant's case, he moved to call the trial judge as a witness, but that motion was denied after a hearing before another judge. Defendant called jail inmates to the stand in an attempt to elicit testimony that he had never told these witnesses that he had committed the crime. He called various prosecution witnesses, including Dr. Schnittker, the medical examiner. He also called the police criminalist, the homicide officer, and Walter Carroll. Defendant made his argument before the jury, and the jury returned its verdict of guilty. On October 16, 1981, defendant's motion to have counsel appointed for the sentencing hearing was denied.

DISCUSSION

In this case, excluding defendant from the courtroom meant that certain parts of the People's case proceeded without the presence of the defendant, or counsel for the defense. Such a situation offends the most fundamental idea...