State v. Scarbrough, S
| Decision Date | 08 June 1972 |
| Docket Number | No. S,S |
| Citation | 197 N.W.2d 790,55 Wis.2d 181 |
| Parties | STATE of Wisconsin, Respondent, v. Clyde James SCARBROUGH, Appellant. tate 211. |
| Court | Wisconsin Supreme Court |
On December 14, 1970, the defendant, Clyde James Scarbrough, was found guilty by a jury and convicted of robbery in violation of sec. 943.32(1)(b), Stats. He was sentenced to an indeterminate term of nine years in the state prison.
The offense was committed on August 23, 1970, and the defendant was arrested the same day. Mr. David S. Berman of the Milwaukee Public Defender Project was appointed to represent the defendant as his attorney. Mr. Berman did appear with the defendant at the preliminary hearing on September 11, 1970 and continued to represent him until the day of the trial. On the day of trial, with a jury panel and witnesses in attendance, the defendant rejected Mr. Berman as his counsel in this case. After considerable in camera discussion the trial proceeded without the defendant Scarbrough being represented by counsel. However, Mr. Berman stood by ready to represent him.
The defendant Scarbrough has appealed from the judgment.
Additional facts will be set forth in the opinion.
Anthony K. Karpowitz, Milwaukee, for appellant.
Robert W. Warren, Atty. Gen., Thomas J. Balistreri, Asst. Atty. Gen., Madison, for respondent.
The issue is whether the defendant Scarbrough was denied his constitutional right of assistance of counsel for his defense.
The basic facts of the robbery as shown by the evidence offered by the state are as follows: Shortly after noon on August 23, 1970, Scarbrough came through the back doors of an A & P store located on West State Street in Milwaukee. He was carrying a brown bag and walked up to the checkout counter area and said to the assistant manager, Ronald Beitzel, that he wanted a package of Pall Mall cigarettes. When Beitzel turned around to give him the cigarettes the defendant said, 'this is a holdup.' Beitzel could see the defendant's hand in the bag and also a part of the barrel and the handle of the gun. The defendant told him he wanted all the money out of the first register, including the change, and the money in the office. Beitzel gave him the currency and the coins, including a roll of nickels and a roll of pennies. The defendant then forced Beitzel to leave the store and walk with him through an alley and up a street for about one-half block. During this time the defendant told Beitzel to walk slower or 'I'll blow your head off.' Beitzel returned to the store and called the police. A subsequent check of the cash revealed somewhat more than $300 was missing.
Within minutes after the report the police apprehended Scarbrough walking on the street a few blocks from the A & P store. Scarbrough had a brown bag and $307 which included loose change and a roll of nickels and a roll of pennies. Beitzel was called and immediately identified Scarbrough as the person who robbed him a minutes before. The defendant Scarbrough did not have a gun when apprehended, but the police, by walking a direct route to the A & P store, found a toy gun in some bushes along the sidewalk. Two additional persons who had been in the immediate vicinity of the store positively identified the defendant as the man who was with Beitzel walking out of the store and down the alley at the time of the robbery. Scarbrough did not testify at the trial nor offer any proof in his own behalf, although he did make an opening statement and a final argument to the jury.
At the day of trial, after the case was called and the jury about to be drawn, the defendant Scarbrough, in chambers, stated that he wanted Mr. Berman to withdraw from his case.
The record reveals that the ensuing in camera discussion between the defendant Scarbrough, Mr. Berman, the trial judge and the assistant district attorney was extensive, with the defendant given ample opportunity to state his position. In substance, the defendant stated that he did not want and would not permit Mr. Berman to represent him in this case. He acknowledged that Mr. Berman was competent and that he had done a good job for him in other criminal cases. 1 His objection to Berman in this case was that Berman would not agree to try the case in the manner the defendant wanted it tried. Scarbrough did not want to try his case without a lawyer and in fact insisted he did not know how to try a case because he was not a lawyer. He did on several occasions demand that another lawyer be appointed fro him. He further stated he would disrupt the trial if another lawyer was not appointed. (This threat was carried out at least to some degree.)
In chambers Scarbrough claimed that he had never been in the A & P store and that he had been gambling that morning and won the money found on him in a 'crap game.'
Mr. Berman is, without doubt, a highly competent and extensively experienced lawyer in the defense of criminal cases. He informed the court in chambers that he had thoroughly prepared the case and was prepared to go to trial on a not guilty plea. He also stated he had discussed the matter on several occasions with the district attorney and that a plea bargain could be entered into if the defendant so desired. The defendant did not want to enter into the plea bargain and Berman advised the defendant they would then go to trial.
In response to Scarbrough's statement that Berman would not try the case the way he wanted to, Berman replied:
The record also reveals that the trial judge, Honorable Robert C. Cannon, listened, extensively and patiently and sought to advise the defendant in order to resolve the question of legal representation.
He advised the defendant that because the jury, the witnesses and the court personnel were in attendance for the purpose of hearing this case, because he knew that Mr. Berman was competent and experienced in the trial of criminal cases, and because Mr. Berman was present and ready and willing to try the case he would not appoint another counsel.
The trial judge did permit the defendant to refuse to allow Mr. Berman to try the case or otherwise represent him and extended these alternatives to him, to...
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State v. Shears
...include the right to counsel of his own choosing. Rahhal v. State (1971), 52 Wis.2d 144, 147, 187 N.W.2d 800, and State v. Scarbrough (1972), 55 Wis.2d 181, 197 N.W.2d 790. 'An accused may not fully avail himself of the service of appointed counsel and then, later, disclaim both the service......
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State v. Darby
...are guaranteed the right to appointed counsel. U.S. CONST. amends. VI, XIV, § 1; WIS. CONST. art. I, § 7;4 State v. Scarbrough, 55 Wis.2d 181, 186, 197 N.W.2d 790 (1972). However, this guarantee does not include the right to the particular attorney of the defendant's choosing. Id. The decis......
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Fowlkes v. State
...733 P.2d 120, 121 (Utah 1986), cert. denied, --- U.S. ----, 108 S.Ct. 47, 98 L.Ed.2d 12 (1987); State v. Scarbrough, 55 Wis.2d 181, 188, 197 N.W.2d 790, 793-794 (1972). We conclude that, under the Sixth Amendment and Article 21 of the Maryland Declaration of Rights, a defendant's unmeritori......
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State v. McCombs
...the court gave him both because Lipton (assigned counsel) was available at all times. (496 F.2d at 643-644) In State v. Scarbrough, 55 Wis.2d 181, 197 N.W.2d 790 (Sup.Ct.1972), the trial court had advised the defendant that he could keep assigned counsel, try the case alone, or have counsel......