Pierce v. United States

• Decision Date: 12 June 1979
• Docket Number: No. 11754.,No. 12643.,11754.,12643.
• Citation: 402 A.2d 1237
• Parties: William H. PIERCE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

Page 1237

402 A.2d 1237

William H. PIERCE, Appellant, v. UNITED STATES, Appellee.

No. 11754.

No. 12643.

District of Columbia Court of Appeals.

Argued September 7, 1978.

Decided June 12, 1979.

Christopher B. Fager, Washington, D. C., for appellant.

Peter C. DePaolis, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert U. S. Atty., John A. Terry, Michael W. Farrell, and Martin J. Linski, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before NEWMAN, Chief Judge, and KERN and HARRIS, Associate Judges.

NEWMAN, Chief Judge:

Appellant was convicted by a jury of first-degree murder while armed, first-degree murder, and carrying a pistol without a license.¹ On this appeal he contends that the trial court erred both by failing to conduct a proper inquiry upon his pretrial request for the appointment of co-counsel as well as by denying that request. These contentions require that we consider: (1) the question of the trial court providing co-counsel as a means of implementing the Sixth Amendment right to effective assistance of counsel; (2) the nature of the inquiry which the trial court must make in resolving a request for the appointment of co-counsel; and (3) the principles applicable to the trial court's proper exercise of discretion in appointing co-counsel. We find that the trial court failed to conduct a proper inquiry and thereby committed reversible error.²

On the afternoon of July 20, 1976, at a gathering at the home of Mrs. Ethel Graham in the District of Columbia, the appellant and the decedent, Raymond Battle, had a discussion that turned into a heated argument. Appellant left the gathering for approximately two hours during which time he placed a pistol on the front seat of his car. During this same time, Battle armed himself with a pistol taken from his car. Appellant then drove up to Mrs. Graham's home as Battle was leaving. Upon seeing each other, the argument continued. At this point the evidence is conflicting, but suffice it to say that appellant shot Battle once in the head killing him and drove off. Battle's pistol was found on the street less than one foot from Battle's outstretched arm. Appellant voluntarily surrendered himself to the police on the morning of July 21, 1976.

It was the government's contention that this was a killing with premeditation and deliberation. The defense's theory was self-defense.

Approximately two weeks before the commencement of trial, trial counsel requested a continuance so that the court could appoint additional counsel. Toward this end, the appellant, who had been in preventive detention since his arrest, waived his right to a trial within the statutory limit of sixty days.³ Excerpts from that hearing follow:

COURT: [Defense Counsel], have you completed your pre-trial discovery in this matter?

DEFENSE COUNSEL: I not only have, but I think [the Assistant United States Attorney] has been more cooperative than any other United States Attorney. I have met with him in the course —

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DEFENSE COUNSEL: The most cooperative of the Assistant United States Attorneys that I have dealt with in any case.

In this case I believe at this point the decision is, and I have discussed this fully with Mr. Pierce, to go forward to trial.

However, Mr. Pierce would like to waive his right to have the trial within the statutory 60 days. The reason for this will become apparent in a moment.

I have explained to him fully that he has the right to put the Government to its proof by this Friday or next Monday. And he understands that, and he wishes to waive that right for a period of approximately 30 days. . . . The reason for this waiver, Your Honor, is that I have explained to Mr. Pierce that although I have had two years of trial experience in this Court, both felony and misdemeanor, I feel that it would be advisable if the case is going forward to trial, for there to be a senior experienced attorney in the case as well.

I did not ask for this at the time of arraignment. I was not certain where this case was going.

I feel that in view of the most serious nature of the charge involved, it is imperative that a second counsel be appointed in this case.

* * * * * *

I believe my own trial preparation is substantially completed. And the senior attorney whom I consult on the case would be able to go forward on to trial with far less than perhaps a first-degree murder case would normally entail on his part.

In response, the trial court asked for a proffer from the government of its evidence. The prosecutor outlined in detail the evidence the government intended to introduce.

PROSECUTOR: Your Honor, the deceased was a man by the name of Raymond Battle, and he knew the defendant in this case. They grew up together in North Carolina, Rockie Mountain, North Carolina.

On July 20th, 1976, Tuesday, there were a number of persons visiting at the home of a lady by the name of Ethel Graham, and everybody knew everybody else. There came a time at approximately 8:00 o'clock that night when the defendant and Mr. Battle got into an argument. The argument had to do with the fact that Mr. Pierce had loaned his car to a person named Roscoe Hudson, and Mr. Hudson had got a ticket because he was driving without a driver's license. In any event the deceased said to the defendant, "You shouldn't loan your car to people who don't have drivers' licenses." And Mr. Pierce, according to the witnesses started to argue with the deceased. And at one point the deceased finally said, "Look I know the real reason you are arguing with me. You think I have my eye on your wife." And at this point the defendant is quoted as saying: "I'm going to take care of you when I get off parole." And the deceased said, "Well, why don't we do it right now." At this point the defendant left and got into the car and drove away. And ten minutes later the deceased walked down to his car and got out a .38 calibre pistol and put it in his belt and sat on the front porch for a couple of hours, and then he said, "I have to go to work. I'm going to leave." He left with a man named James Hudson. He walked down to the car, and a number of people remained on the front porch. And as Mr. James Hudson and the deceased got into the deceased's car, the defendant pulled up in his car, pulled out a gun and pointed it at the deceased and said, "repeat what you said." And at this point the witnesses said the deceased was seeking cover and at this point the defendant fired one shot hitting the deceased in the back of the head, the left side of the ear from which the deceased died.

This is a preventive detention case. The defendant has a prior conviction for bank robbery in the mid 1960's in North Carolina.

That is basically the case, Your Honor.

The Government's evidence and argument will be that it was a cold blooded killing according to the several witnesses. And premeditation and deliberation came from the fact that there was an argument between the two men. The defendant left and secured a gun and came back without provocation and killed this man.

At this point, the court addressed trial counsel:

COURT: Now, [Defense Counsel], you have previously been acquainted with this version of the facts as alleged by the Government at this time?

DEFENSE COUNSEL: That is correct, Your Honor.

COURT: I would think under such circumstances [Defense Counsel], you would be more than competent and qualified and able to go forward insofar as the preparation and presentation of the defendant's defense in this matter.

Even after this show of confidence by the court in trial counsel's ability to handle the case, trial counsel persisted:

DEFENSE COUNSEL: Your Honor, if at any point in this case I question my own competence, I would vacate myself. My concern is not with my competence but with the term of experience I have had. I feel in view of the fact that if this case does not go to trial — and I should point out for the record that [the Assistant United States Attorney] has made a plea offer of second degree murder while armed. If this case does go to trial and in view of the fact that Mr. Pierce would get, if Mr. Pierce were convicted of first-degree murder, he would get a mandatory maximum of 20 years which he does understand. I feel in view of that, Your Honor, the appointment of a second counsel who has had substantial experience in felony one is called for.

I might point out to the Court that this is not a request or decision that I made lightly. I have struggled with this quite a bit with the last status, and I just want the Court to know that this request or decision is not one that I make lightly.⁴

At this point, the court granted trial counsel's request to approach the bench. Again, this time out of the hearing of the appellant, counsel stressed his need for a second attorney.

DEFENSE COUNSEL: Your Honor, for the Court's information I have talked with other attorneys and several judges both of this Court and one judge in the District Court on this point. Obviously first-degree murder is a capital offense, and if the Court is concerned with the financial aspect of the case, quite frankly from this moment I wouldn't accept another penny. It would all go to the attorney if the Court so direct.

My concern here . . . is not that I don't feel competent to present the case to the jury, but because of the seriousness of the case, I frankly would like the advice of senior counsel.

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COURT: You mean primarily for the purpose of offering you some consultation and advice; or primarily for the purpose of the actual trial of the case?

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DEFENSE COUNSEL: I think it is the actual trial. It might well be that after spending a number of hours with the attorney, should the Court appoint an attorney, and this attorney should say . . . you don't have a case. I hesitate to take this case to trial with the penalty involved at trial if judgment should go against the defendant based merely...