People v. Foust, Cr. 14975

• Decision Date: 07 November 1968
• Docket Number: Cr. 14975
• Citation: 267 Cal.App.2d 222,72 Cal.Rptr. 675
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. James LeRoy FOUST, Defendant and Appellant.

Page 675

72 Cal.Rptr. 675

267 Cal.App.2d 222

The PEOPLE, Plaintiff and Respondent, v. James LeRoy FOUST, Defendant and Appellant.

Cr. 14975.

Court of Appeal, Second District, Division 1, California.

Nov. 7, 1968.

Jeffrey Brodey, Los Angeles, under appointment by the Court of Appeal, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and William V. Ballough, Deputy Atty. Gen., for plaintiff and respondent.

FOURT, Associate Justice.

This is an appeal from a judgment of conviction of voluntary manslaughter (§ 192, subd. 1, Pen.Code).

In an information filed in Los Angeles on October 9, 1967, James LeRoy Foust was charged with murdering Dale Keith Maupin on September 5, 1967. It was further charged that Foust had previously been convicted of a felony in Pennsylvania in 1964 and served a term therefor in prison. In the first instance the prior was denied but ultimately was admitted. Defendant was found guilty in a jury trial of murder in the second degree. In lieu of granting a motion for a new trial the court reduced the offense to voluntary manslaughter, a lesser necessarily included offense. A timely notice of appeal was filed.

A resume of some of the facts is as follows: on September 5, 1967, at about 3 p.m. Foust and Colleen Hickey entered the Hi De Ho Bar located in El Monte. The two had been drinking during the day at various other bars. Foust ordered some beer and played some pool. Foust and Hickey engaged in several arguments and they were asked to leave the establishment by Ruth Kenner, the manager. Foust seemed agreeable to leaving but Hickey indicated that she was not inclined to go and picked up her purse and started for the washroom. Foust grabbed the purse and Hickey locked herself in the washroom and cried. Foust unsuccessfully attempted an entrance into the washroom. Kenner entered the washroom and talked to Hickey at Foust's request and then came out and advised Foust that Hickey had stated she was not going to leave with him. Foust made a telephone call and when Kenner threatened to call the police Foust left taking Hickey's purse with him. Kenner went outside and unsuccessfully attempted to retrieve the purse from Foust. Dale Maupin, who was on leave from the Air Force, with others who had been in the bar, stepped outside. Foust threw the purse into the back seat of a car and drove away a short distance. He then got out of the car, took off his coat and motioned apparently for Maupin to come to him. Foust weighed about 137 pounds. Maupin was 5 feet 11 inches tall and weighed 179 pounds. Maupin, the manager and others went back into the bar. In about 15 minutes Foust returned to the bar and entered through the front door. Hickey, who in the meantime had come out of the washroom and was seated at the end of the bar talking with Kenner, upon seeing Foust enter the bar, immediately went behind the bar and crouched down below the bar counter. Foust followed Hickey--Kenner followed and attempted to get Foust out from behind the bar. A scuffle ensued and ultimately in spite of being shoved and pushed Kenner was successful in getting Foust from behind the bar.

As Foust half turned toward Kenner, Maupin told Foust to stop causing trouble. Foust said something to the effect that Maupin had wanted to fight with him ever since he had arrived at the bar--Maupin replied, 'No, I don't want to fight with you, but you are not going behind the bar.' Maupin placed his hands on Foust's shoulders, Foust said, 'Okay, let's go at it.' Foust then moved toward Maupin, dropped his arms and slipped a switch blade knife out of his jacket sleeve. The knife was opened by Foust and he then stabbed the blade into Maupin. Maupin fell to the floor. Maupin died September 6, 1967, from a three and one-half inch long and three and one-half inch deep chest stab wound in the heart. There was a similar stab wound on the back of Maupin's left arm. Foust fled the scene and was captured by the police the day following after a short chase.

Appellant now asserts that the court erred in not dismissing the public defender from the case. There is no contention with reference to the sufficiency of the evidence to support the judgment.

The public defender represented appellant at the preliminary examination. At the arraignment in the trial court the public defender was again appointed to represent appellant and such representation continued through the trial, the motion for new trial, and sentencing procedure.

The first prosecution witness (a bar maid who witnessed the killing) testified for the prosecution, and was cross-examined for a considerable time by appellant's counsel when the judge declared the morning recess. After the recess appellant's counsel advised the court that appellant wanted to make 'motion as to representation.' The jury was excluded from the court room and Foust then made a statement to the court the effect of which was to request a removal of the public defender because of his inadequacy. ¹

The court denied the request to remove Mr. Maines the public defender. Maines continued on with the cross-examination of the bar maid witness. The next day prior to taking any testimony, in the absence of the jury in the court's chambers Maines stated that the appellant wished to proceed with his motion to oust Maines as his defense counsel. The judge inquired of Foust if he so desired to proceed and Foust replied in effect that such was his desire. The judge in the absence of the jury called the witnesses named by appellant. Colleen Hickey was called, sworn and testified in effect that she and her mother had been in a restaurant close by earlier in the week (before the trial had started), and had overheard Maines say to some other men that he had the Foust case, that he did not want it but that he would take it to protect his record. Maines was sworn and testified that he did not recall making the statement attributed to him, but that he might have said something about not wanting the case. He knew, however, that he did not state that he was taking the case to protect any record. Further Maines stated that the case was assigned to him, that he would do his best to defend Foust and that he had prepared the case in the usual manner. No other witness was available at the time. The court then made a statement. ²

After the prosecution closed its case Mrs. Louise Hickey appeared in court and in the absence of the jury was sworn and made a statement to the effect that while with her daughter in a restaurant she had heard Maines say to some other men that he had the Foust case, that he did not want it but had taken it 'to protect my record.' The court after asking the lady some questions restated his ruling as theretofore made. The defense called several witnesses, the cause was argued and submitted and the jury returned with a verdict of guilty of murder in the second degree.

At the time of the motion for a new trial Maines argued for and convinced the judge to reduce the offense to voluntary manslaughter. The court made another statement with reference to the representation received by Foust. ³

There is nothing before this court which might indicate in any respect whether Foust knew how to measure counsel's familiarity with legal procedure and the law.

It is appropriately stated in People v. Bourland, 247 Cal.App.2d 76, 84--85, 55 Cal.Rptr. 357, 363:

"It is well settled law that if a defendant, during the course of the trial, becomes dissatisfied with the manner in which his counsel has handled his case and wishes to discharge counsel for that reason he has a constitutional right so to do (citation), subject to the supervisory powers of the trial court to see that such discharge does not result in an uninformed and unintelligent waiver of the right to counsel. (Fn. omitted.) (Citations)' (Citation.) There is, however, 'no constitutional right to an attorney who will conduct the defense of the case in accordance with an indigent defendant's whims.' (Citations.)

"A defendant's right to a court-appointed counsel does not include the right to require the court to appoint more than one counsel, except in a situation where the record clearly shows that the first appointed counsel is not adequately representing the accused."

Clearly the determination of the question of whether counsel is performing his duties in a competent manner in a trial involves an exercise of discretion by the trial judge and in the absence of a showing of abuse, such exercise of discretion should not be disturbed on appeal.

It is to be noted that Foust in this case made no claim to demand to represent himself. He was unhappy with Maines and wanted the judge to remove Maines and apparently then to appoint some other counsel.

Both appellant and respondent cite PEOPLE V. TAYLOR, 259 CAL.APP.2D ---, ---, 66 CAL.RPTR. 514, 516.^A In Taylor the court did say: 'Had the request by defendant related only to the individual attorney assigned by the public defender's office and been substantiated by Any valid reason of defendant, we have no doubt but that a different individual attorney from that office would have been made available.' (Emphasis added.) The difficulty here is that appellant did not fortify his request with any valid reason. The court clearly disbelieved the two women, said so and observed that Maines was doing and did do an excellent piece of professional work in representing appellant in what could very well have resulted in a first degree murder verdict. In short the request was not substantiated in any respect.

People v. Jackson, 186 Cal.App.2d 307, at 315--316, 8 Cal.Rptr. 849, 853 discusses the legal relationship between an indigent defendant and his court-appointed attorney as follows: 'By constitutional provision and statute an accused is guaranteed the right to be represented by counsel or to represent himself. (Citation.) However, this guarantee does not afford him the right to have...