Raullerson v. Patterson

• Decision Date: 29 August 1967
• Docket Number: Civ. A. No. 67-C-272.
• Citation: 272 F. Supp. 495
• Parties: Nathaniel RAULLERSON, (Prison No. 34825), Petitioner, v. Wayne K. PATTERSON, Warden, Colorado State Penitentiary, Respondent.
• Court: U.S. District Court — District of Colorado

272 F. Supp. 495

Nathaniel RAULLERSON, (Prison No. 34825), Petitioner, v. Wayne K. PATTERSON, Warden, Colorado State Penitentiary, Respondent.

Civ. A. No. 67-C-272.

United States District Court D. Colorado.

August 29, 1967.

Richard H. Duke, Denver, Colo., for petitioner.

Duke W. Dunbar, Atty. Gen. of Colorado, John P. Moore, Asst. Atty. Gen., Denver, Colo., for respondent.

MEMORANDUM OPINION AND ORDER

WILLIAM E. DOYLE, District Judge.

This cause is before the court on petition seeking writ of habeas corpus. In our order of June 2, 1967, we considered and disposed of most of the issues raised in the petition. We issued an order to show cause in connection with petitioner's contention that his constitutional rights had been violated when the court denied his demand for a continuance to allow him to be represented by counsel of his own choice. The cause was heard on June 30, 1967 and it now stands submitted.

In our June 30 Order we noted that the charge was heinous, that the sentence was of great magnitude (50 years), and that the question was of a kind which could have constitutional implications. Because of these factors we noted the necessity for careful scrutiny.

The facts giving rise to this are as follows:

Petitioner was arrested in May 1962 on a charge of assault with a deadly weapon, kidnapping and rape; the victim was an eleven-year-old child. On June 26, 1962, following a showing that the Petitioner was without funds, the state judge appointed two Denver lawyers to represent him. Both of these are able, experienced trial lawyers. At his arraignment on June 29, 1962, the Petitioner entered a plea of not guilty by reason of insanity. Subsequently he was committed to the Colorado General Hospital for psychiatric evaluation. Following the completion of this he was returned to court on August 9, 1962 and was reported sane at the time of the alleged commitment of the offense and since that time. The court nevertheless set a hearing on the sanity issue for November 11, 1962. Meanwhile, on November 7, the appointed lawyers filed a motion to withdraw in which they stated that the Petitioner had not cooperated with them and did not wish them to represent him; that he had advised his witnesses not to talk to them and had requested their withdrawal from the case. On November 13, 1962, the court heard this motion and denied it. On that same day the Petitioner was allowed to withdraw his plea of not guilty by reason of insanity and to enter a plea of not guilty. At this November 13 hearing Mr. Irving Andrews, who is also a Denver lawyer, appeared and informed the court that the Petitioner's mother had paid him a retainer on a conditional basis: the condition was that he (Andrews) would be able to secure a continuance so as to prepare the case for trial. On this occasion there was a lengthy discussion between the court and the petitioner, also Mr. Andrews. Mr. Andrews then advised the court that he would need something more than 30 days to make his preparation. The court was willing to give him this length of time and then an effort was made to find a date on which Andrews could try the case. Judge Johns, who was presiding, offered him three different dates. One of these was January 3, 1963, another was December 10, 1962 and the court finally offered December 17, 1962. Mr. Andrews was not by reason of conflicting engagements able to meet any of these dates. It also appeared that Judge Johns was to be transferred to the civil division on January 10 and that he was anxious to complete the case prior to this changeover. As a result of this long searching discussion which is fully set forth in the state court transcript of proceedings which we now have before us, Judge Johns set the case for trial on December 17. He informed the defendant that he was perfectly willing to have him represented by the lawyer of his own choosing, provided that lawyer could try the case on that date. The court said:

"THE COURT: All right, we'll try it if we have to bring in two judges, on Monday, December 17th. If you can be ready for trial on that date, Mr. Andrews, fine; if you can't be ready for trial on that date the court-appointed counsel will remain in this case.

MR. ANDREWS: I think that is the only thing to do, Your Honor, and I concur.

THE COURT: As far as I am concerned, I want the record to reflect that Mr. Fugate and Mr. Hermann are both competent counsel, and I don't think there is any question about that.

MR. ANDREWS: I don't think there is any question about that either, your Honor.

THE COURT: Let me make my record. And that the Court feels that to permit them to—require that they withdraw on the grounds stated by Mr. Raullerson would be to thwart the spirit of the Constitution. Mr. Raullerson, the Court is here, here are your attorneys, there is the jury box; all we can do is give you every protection that is possible, and that is what we will do."

On December 18th the case came on for trial, and on that occasion there was another lengthy discussion between the court, counsel and the defendant. Defendant again objected to being represented by the court-appointed lawyers. The Judge's response was that he had given ample opportunity to get counsel of his own choosing and he went on to say:

"This case has been set down for a long time, since the time you represented to the Court that you didn't have counsel and that you were a pauper and I appointed counsel for you. Counsel who have been appointed for you are both admitted to the bar of the State of Colorado and are in good standing, and in this Court's opinion are competent counsel. The Constitution and the laws of the State of Colorado, and the Constitution and the laws of the United States require that if a person is indigent, that it is incumbent upon the Court to protect that person's rights, and the Court feels that it has done so, and there has been no preclusion in your getting counsel of your own choice up to this time. You can't move at the last minute, just because you might feel that you might be dissatisfied with your own counsel, to ask for a continuance and delay this trial. This situation could go on forever.

THE DEFENDANT: Well, your Honor, I would also like to state that in November, around the 7th, that I did—I informed the attorneys that I was engaging counsel of my own choice, Mr. Irving Andrews, Mr. Andrews was engaged to represent me, and I was only informed this morning that he would not be able to accept this case.

THE COURT: You were in Court when Mr. Andrews said—when I gave him an opportunity to enter this case, and I told him that if he was going to enter this case I would withdraw these counsel, and he never did make a formal entry of appearance in this case."

It thus appears that the Petitioner had qualified as a pauper; that competent counsel were appointed to represent him and that some four and one-half months later he objected to their representing him. At that point he continued to be indigent, but apparently his mother manifested some willingness to obtain counsel for him. Mr. Andrews, the lawyer, did not, however, enter his appearance. Andrews did tender his services conditionally and so the question is whether the setting of the case for trial on December 17 and the refusal of the court to find a time fully acceptable to Mr. Andrews and the defendant constitutes such an abuse of discretion as to amount to a violation of petitioner's constitutional right to be represented by counsel of his own selection.

The Sixth Amendment of the Constitution of the United States provides:

* * * "in all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his own defence."

This right is incorporated in the Fourteenth Amendment and includes within its scope the right to a fair opportunity to secure counsel of one's own choice.¹ It goes without saying that this "fair opportunity" to obtain counsel of one's own choice does not give the accused the power to obstruct the ordinary procedure of the court and to deprive the court of its power to control its docket.² One who is indigent is, of course, guaranteed the right to have counsel in all criminal proceedings and indeed at every level of such proceedings.³

This right of an indigent to have counsel does not give to him the right to be represented by a lawyer of his own choice. The court in this circumstance is obligated to furnish him with a capable lawyer but he must accept the court's appointee, although he may ask for a substitution which will, in the court's discretion, be granted or refused, depending on the reasonableness of the demand.⁴

On the matter of granting a continuance, the court has a measure of discretion and there are not any mechanical tests to govern the granting or denial.⁵

The problem before us is somewhat novel and we have reviewed numerous cases which though not directly in point in that they do not involve an indigent are somewhat similar in character.⁶ Some of the features which are considered in the noted cases are whether the defendant has been shown to have in bad faith sought to delay the trial; whether the defendant was prejudiced by not having court-appointed counsel; whether the defendant was indigent; whether the failure to obtain counsel of the accused's own choice resulted from his negligence or inaction; whether there was substantial administrative inconvenience and whether the continuance sought was reasonable or unreasonable when weighed against the requirement of a speedy trial.

More in point are those cases which deal with an accused who is indigent. These include: Cleveland v. United States, 1963, 116 U.S.App.D.C. 188, 322 F.2d 401; United States ex rel. Allen v. Rundle, E.D.Pa.1964, 233 F.Supp. 633, cert. denied Allen v. Rundle, 382 U.S. 857, 86 S.Ct. 109, 15 L.Ed.2d 94; United States ex rel. Higgins v. Fay, S.D.N.Y. 1966, 252 F.Supp. 568; People v. Faracey, 46 Misc.2d 46, 259 N.Y.S.2d 1 (1965); ...