State v. Williams

• Decision Date: 14 November 1979
• Docket Number: No. 61228,61228
• Citation: 285 N.W.2d 248
• Parties: STATE of Iowa, Appellee, v. Robert Anthony WILLIAMS, Appellant.
• Court: Iowa Supreme Court

Page 248

285 N.W.2d 248

STATE of Iowa, Appellee, v. Robert Anthony WILLIAMS, Appellant.

No. 61228.

Supreme Court of Iowa.

Nov. 14, 1979.

Rehearing Denied Dec. 13, 1979.

Gerald W. Crawford, Des Moines, and Robert Bartels, Iowa City, for appellant.

Thomas J. Miller, Atty. Gen., Faison T. Sessoms, Asst. Atty. Gen., Dan L. Johnston, Polk County Atty., Robert J. Blink and Rodney J. Ryan, Asst. Polk County Attys., for appellee.

Considered by LeGRAND, P. J., and REES, HARRIS, ALLBEE, and McGIVERIN, JJ.

ALLBEE, Justice.

This is an appeal by Robert Anthony Williams from his conviction, on retrial, for first degree murder, a violation of sections 690.1 and 690.2, The Code 1966. The charge arose out of the death of Pamela Powers, which occurred on December 24, 1968.

Williams was initially tried and convicted of this crime in 1969. On appeal from that conviction he contended that the police had obtained certain statements from him in an unlawful manner and that those statements should have been suppressed. This court rejected his argument and, in a five to four decision, affirmed the conviction. State v. Williams, 182 N.W.2d 396 (Iowa 1970). Defendant then petitioned the United States District Court for the Southern District of Iowa for a writ of habeas corpus. That court held that defendant's statements had been obtained in violation of his right to counsel and privilege against self-incrimination and sustained the petition. Williams v. Brewer, 375 F.Supp. 170 (S.D.Iowa 1974). A divided panel of the court of appeals affirmed. 509 F.2d 227 (8th Cir. 1974). After petitions for rehearing and rehearing en banc were denied by the court of appeals, the Supreme Court granted certiorari, 423 U.S. 1031, 96 S.Ct. 561, 46 L.Ed.2d 404 (1975), and affirmed, also by a vote of five to four. Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

The facts out of which the prosecution arose have been set out in the prior opinion of this court and in the opinions of the court of appeals and Supreme Court. Factual statements in this opinion will therefore be limited to those necessary to the discussion of the individual issues which defendant has raised. Those issues are considered in the order in which they were presented by his brief.

I. Rejection of defendant's choice of appointed counsel. Defendant first complains because trial court refused to appoint Sheldon Otis, of San Francisco, California, as co-counsel for the defense. He claims that as an indigent defendant he had at least a qualified right to select particular attorneys for his defense. Mr. Otis is a member of the bars of California and Michigan with extensive experience in felony trials, and had previously appeared in an Iowa criminal case.

Defendant applied for appointment of counsel on April 14, 1977, stating that he was indigent, that his counsel in the federal habeas corpus action, Robert Bartels, could not represent him in this trial due to previous commitments, and that Mr. Otis was willing and able to undertake representation of defendant. He also requested the appointment of co-counsel for Mr. Otis and stated that Gerald W. Crawford of Des Moines was willing to accept such an appointment. Attached to the application was Williams's affidavit of indigency and a supporting certificate by a counselor at the state penitentiary, where Williams was incarcerated. No request for a hearing was contained in the application.

On April 21, 1977, District Judge Ray Hanrahan entered an order appointing counsel for defendant. The order recited that the court had conferred with defendant's prior counsel, Mr. Bartels, that defendant was indigent and required appointed counsel, and that prior counsel could not continue his representation. It also recited the court's findings that defendant's interests would be better served by appointment of local counsel and that pre-trial matters and the orderly processing of the case would be facilitated by local counsel. It therefore appointed Roger P. Owens and John C. Wellman, both of the Polk County Offender Advocate's Office, and Gerald W. Crawford as co-counsel for defendant.

Then, on April 27, Williams filed a motion for substitution of counsel, requesting that Mr. Otis be appointed in place of either Mr. Owens and Mr. Wellman, or Mr. Crawford. This motion requested a hearing. Defendant alleged that he was fearful of the effect of community pressure and publicity upon Des Moines counsel and asserted that he had a right under the State and Federal Constitutions and section 775.4, The Code 1977 (current version at Iowa R.Crim.P. 8(1) & 26), to choose the attorneys to be appointed for him. The motion argued that trial court's concerns about pre-trial matters and the orderly processing of the case could be adequately met by the appointment of local co-counsel and stated that Mr. Otis would not claim any transportation expenses. Thus his services would incur no special expense for the state. The motion also noted that Judge Hanrahan had stated that Mr. Otis would have been permitted to appear if he had been retained by Williams.

District Judge J. P. Denato treated the motion as a motion for reconsideration of the ruling on defendant's application for appointment of counsel. Because the motion was treated as one for reconsideration, and because the original application did not demand a hearing, defendant's request for a hearing at this juncture was denied. The court then denied the motion on its merits.

In denying the motion, Judge Denato found that counsel appointed by Judge Hanrahan were competent, a quality which, in Judge Denato's opinion, included the ability to remain unaffected by pressure and publicity. The court rejected defendant's suggestion that local co-counsel could provide for the orderly disposition of pre-trial matters, reasoning that those matters are often critical to the defense and ought to be the responsibility of chief trial counsel. Further, Judge Denato noted that Mr. Otis "would be involved in trial in California well into May," which would be an impediment to the speedy disposition of the case. Trial court noted that it had not been established, at the time of the ruling on the original application, that Mr. Otis would serve for local fees only, without charging for travel time, but did not rely on this fact. Finally, the court referred to the plan for appointing criminal defense counsel in Polk County and pointed out that Mr. Otis was not on the appointment list.

Defendant now presents four arguments which he insists support at least a qualified right on the part of indigent criminal defendants to choose particular counsel to represent them. The first is based on the sixth amendment and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The second is an equal protection argument. The third is based on due process, which also supports his claim that he was entitled to a hearing on the question. His final argument arises out of the language of section 775.4, which provides for appointment of counsel for indigents.

While there is an absolute right to counsel, no defendant, indigent or otherwise, has an absolute right to be represented by a particular lawyer. See, e. g., United States v. Vargas-Martinez, 569 F.2d 1102, 1104 (9th Cir. 1978); United States v. Poulack, 556 F.2d 83, 86 (1st Cir.), Cert. denied, 434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977); United States v. Dinitz, 538 F.2d 1214, 1219 (5th Cir. 1976), Cert. denied, 429 U.S. 1104, 97 S.Ct. 1133, 51 L.Ed.2d 556 (1977); Cf. United States v. Buttorff, 572 F.2d 619, 627 (8th Cir.), Cert. denied, 437 U.S. 906, 98 S.Ct. 3095, 57 L.Ed.2d 1136 (1978); United States v. Hinderman, 528 F.2d 100, 102-03 (8th Cir. 1976) (no right to representation by laymen). A defendant's right to choose particular counsel is circumscribed by trial court discretion, which may be exercised to effectuate an orderly disposition of the case. United States v. Dinitz, 538 F.2d at 1219; Harling v. United States, 387 A.2d 1101, 1104 (D.C.1978). Thus, trial courts have generally been vested with broad discretion in determining the particular attorney to be appointed to represent an indigent defendant. See, e. g., Drumgo v. Superior Court, 8 Cal.3d 930, 106 Cal.Rptr. 631, 506 P.2d 1007 (1973); Baker v. Commonwealth, 574 S.W.2d 325, 326-27 (Ky.Ct.App.1978); State v. Hollins, 512 S.W.2d 835, 838 (Mo.Ct.App.1974); People v. Medina, 44 N.Y.2d 199, 207, 404 N.Y.S.2d 588, 592-93, 375 N.E.2d 768, 772 (1978); Commonwealth v. Chumley, 482 Pa. 626, 646 n.3, 394 A.2d 497, 507 (1978), Cert. denied, 440 U.S. 966, 99 S.Ct. 1515, 59 L.Ed.2d 781 (1979); Brewer v. State, 4 Tenn.Ct.Cr.App. 265, 270, 470 S.W.2d 47, 49 (1970); Watson v. Black, 239 S.E.2d 664, 668 (W.Va.1977); State v. Shears, 68 Wis.2d 217, 259-60, 229 N.W.2d 103, 124 (1975); Irvin v. State, 584 P.2d 1068, 1070 (Wyo.1978). See generally Annot., 66 A.L.R.3d 996 (1975). In fact, that discretion has been interpreted to encompass the adoption of policies which specifically preclude the defendant from selecting his lawyer. United States v. Davis, 604 F.2d 474, at 478-479 (7th Cir. 1979).

Because we are impressed by the overwhelming support for the rule, we hold that trial courts have broad discretion, both in the first instance, and in considering a motion for substitution of counsel, in choosing the particular lawyer to represent an indigent defendant. The concerns stated by both district judges in this case regarding the need for local counsel to deal effectively and promptly with pre-trial matters are reasons sufficient to characterize their actions as being well within the boundaries of sound discretion.

Defendant's specific arguments remain to be answered. His first, based on the sixth amendment, is summarized by this passage from his brief:

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Court recognized that the right to counsel was a Personal right...