Slappy v. Morris
| Decision Date | 19 October 1981 |
| Docket Number | No. 79-2519,79-2519 |
| Citation | 649 F.2d 718 |
| Parties | Joseph D. SLAPPY, Petitioner-Appellant, v. Paul John MORRIS, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Michale B. Bassi, San Francisco, Cal., for petitioner-appellant.
Dane R. Gillette, San Francisco, Cal., for respondent-appellee.
Appeal from the United States District Court for the Northern District of California.
Before GOODWIN, ALARCON and NELSON, Circuit Judges.
Joseph D. Slappy, a California state prisoner, petitioned for a writ of habeas corpus alleging, inter alia, that in his state trial he was deprived of his sixth amendment right to counsel. The district court denied the petition. Because we find that Slappy was deprived of his sixth amendment right to counsel, we hold that the writ of habeas corpus should issue.
Petitioner Slappy was charged by information in state court proceedings with rape, robbery, burglary, oral copulation, and false imprisonment. At Slappy's arraignment, the San Francisco public defender's office was appointed to represent him. Deputy Harvey Goldfine of that office represented Slappy at his preliminary hearing, and also conducted the investigation into Slappy's case.
Slappy's trial was scheduled to begin on a Thursday. On the Friday preceding trial, Deputy Bruce Hotchkiss, also of the San Francisco public defenders office, met Slappy at his jail cell, and advised him that he, Hotchkiss, would represent Slappy in trial. This change in representation was due to Goldfine's appendicitis attack. Hotchkiss again visited Slappy on the Tuesday before trial.
On the day of trial, Slappy complained to the trial judge about the short amount of time between Hotchkiss' assignment to Slappy's case and the trial. The trial judge interpreted this complaint as a motion for a continuance, and denied the motion. Slappy continued to insist that Hotchkiss had insufficient time to prepare for trial. Hotchkiss, however, claimed that he was prepared. He explained the background of his assignment to the case, stating to the court that "Mr. Goldfine, who was to try this case, was operated on for appendicitis, that is how it was transferred." The trial judge did not inquire as to how long Goldfine would be incapacitated.
Throughout the trial, Slappy refused to cooperate with Hotchkiss and insisted that Goldfine, not Hotchkiss, was his lawyer. Slappy was so dissatisfied with his representation that he continually interrupted the proceedings, insisting that his right to counsel was being infringed. 1
Slappy was convicted of robbery, burglary, and false imprisonment. The jury was unable to agree on the rape and oral copulation charges and a mistrial was declared on those charges.
A second trial on the remaining charges began the next week, with Hotchkiss remaining as Slappy's counsel. Slappy continued to insist that Goldfine, not Hotchkiss, was his attorney. Communication between Slappy and Hotchkiss broke down to such a point during the second trial that Hotchkiss asked the court to remove him as counsel because he felt he could not render In both trials, Hotchkiss advised Slappy to testify. Slappy refused to testify in the first trial, and only decided to testify in the second trial after the jury was instructed. This request was denied by the trial court.
effective assistance in the face of such conflict. After a conference in chambers, Hotchkiss withdrew his motion. Slappy was ultimately convicted of rape and oral copulation in this trial.
Slappy's convictions were affirmed by the California Court of Appeal, and the California Supreme Court refused to grant a hearing. Slappy thereafter filed a petition for a writ of habeas corpus in the District Court for the Northern District of California. The issues raised in the petition for habeas corpus were fairly presented to the California courts.
Slappy contends that the trial court's refusal to grant a reasonable continuance until his attorney, Harvey Goldfine, was well enough to represent Slappy at trial was a denial of his sixth amendment right to counsel.
We recognize at the outset that an indigent defendant does not have an unqualified right to the appointment of counsel of his own choosing. See Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970). But cf. Harris v. Superior Court, 19 Cal.3d 786, 567 P.2d 750, 140 Cal.Rptr. 318 (1977) (). This is not a case of a defendant seeking to choose a particular attorney in the first instance. Here the trial court had appointed Harvey Goldfine to represent Slappy. Slappy was merely seeking a continuance of the trial date so that his attorney would be able to represent him at trial. The record clearly establishes the fact that Slappy and Goldfine had entered into an attorney-client relationship at least as of the time of the preliminary hearing.
The right to counsel includes more than just the right to representation by competent counsel at trial. This right would be without substance if it did not include the right to a meaningful attorney-client relationship. 2 The special nature of the attorney-client relationship was explained by the Alaska Supreme Court in McKinnon v. State:
The attorney-client relationship involves "an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney." Often, the outcome of a criminal trial may hinge upon the extent to which the defendant is able to communicate to his attorney the most intimate and embarrassing details of his personal life. Complete candor in attorney-client consultations may disclose defenses or mitigating circumstances that defense counsel would not otherwise have uncovered. At the very least, an open exchange between attorney and client will often foreclose the possibility of surprise at trial.
McKinnon v. State, 526 P.2d 18, 22 (Alaska 1974) (Footnotes omitted).
The attorney-client relationship is accorded special protection because of its impact on the truth-finding process. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court held that a defendant in a state court proceeding could not get a fair trial unless he had assistance of counsel at trial. But representation at trial is without substance if the defendant does not have confidence in his attorney's ability to represent the defendant's best interests. It is unlikely that a criminal defendant will have a legal education. He, therefore, will have to rely on his attorney's advice for the most basic decisions in a criminal trial whether to plead guilty, whether to testify, whether to present a defense, and which witnesses to call. If the defendant does not trust his attorney, he may be unwilling to follow his attorney's advice in these most important areas.
Several appellate courts have found unconstitutional the trial court's failure to take measures to allow the defendant to continue at trial with his retained counsel. In Releford v. United States, 288 F.2d 298 (9th Cir. 1961), this court held that there was a denial of the right to counsel under the following facts: The defendant had retained counsel (Kay) to represent him on criminal charges. Kay became ill shortly before trial, and was expected to be unable to participate in trial for about two weeks. The trial court refused to grant a continuance to allow Kay to represent the defendant at trial or to allow the defendant to secure a chosen substitute for trial. Instead, the judge forced the defendant to go to trial with a second, unwanted, attorney. The Ninth Circuit reversed the defendant's conviction, holding that the defendant had been deprived of his right to counsel because the trial judge refused to grant a continuance.
Similarly, in Gandy v. Alabama, 569 F.2d 1318 (5th Cir. 1978), the Fifth Circuit held that a habeas petitioner was deprived of his right to due process when the trial judge refused to grant a continuance or otherwise insure counsel's presence. In Gandy, petitioner's retained counsel could not be present at the day of the scheduled trial because of a conflicting civil trial. The trial judge refused to grant a continuance, and forced another attorney on the petitioner. The Fifth Circuit, while noting that the decision to grant a continuance is generally vested in the trial judge's discretion, held that the refusal to grant a continuance in such circumstances was so unfair as to deny the petitioner his rights to due process.
The Seventh Circuit, in United States v. Seale, 461 F.2d 345 (7th Cir. 1972), held that forcing a defendant to proceed with unwanted counsel, when retained counsel was ill, was an abuse of discretion. The Seale court noted that the defendant should have been given a reasonable continuance to obtain the services of either his retained counsel, or some chosen substitute.
We recognize that the cases discussed above involved retained counsel. We see no reason to distinguish between appointed and retained counsel in the context of preserving an attorney-client relationship. We find ourselves in agreement with the California Supreme Court's statement in Smith v. Superior Court, 68 Cal.2d 547, 440 P.2d 65, 68 Cal.Rptr. 1 (1968),
A superficial response is that the defendant does not pay his fee, and hence has no ground to complain as long as the attorney currently handling his case is competent. But that attorney-client relationship is not that elementary: it involves not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is...
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