U.S. v. Bennett

Decision Date28 June 1976
Docket NumberNos. 74-1410 and 75-1171,s. 74-1410 and 75-1171
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Odell BENNETT, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Bruce E. Miller, Asst. U.S. Atty., Topeka, Kan. (E. Edward Johnson, U.S. Atty., Topeka, Kan., on the brief), for plaintiff-appellee.

David J. Waxse, Olathe, Kan. (Payne & Jones, Chartered, Olathe, Kan., on the brief), for defendant-appellant.

Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant-appellant Odell Bennett seeks reversal of his conviction on count three of a five count indictment for forcibly resisting, opposing, impeding, intimidating and interfering with a hospital administrator, Reeves, at the dress-out room used at Leavenworth Penitentiary in August, 1973, and on a like charge in count four for forcibly resisting a deputy marshal, Lopez, while Reeves and Lopez were engaged in performance of official duties, in violation of 18 U.S.C.A. § 111. 1 Appeal is also taken from a conviction on a similar charge in count five for forcibly resisting Lopez inside a motor vehicle outside the Penitentiary that same day.

The events premising the charges occurred at the time of and shortly following a rectal examination of defendant, a part of the security procedures used before Leavenworth inmates appear in court or are transferred. See Daugherty v. Harris, 476 F.2d 292 (10th Cir.), cert. denied, 414 U.S. 872, 94 S.Ct. 112, 38 L.Ed.2d 91. Defendant had been ordered produced in federal court on a writ for appearance in connection with civil actions brought by defendant.

At a first trial in May, 1974, the jury acquitted defendant on count one of the same indictment which had charged a similar offense against other prison employees. Count two, charging instigation of a mutiny on the same day, was dismissed by the Government. As stated, a conviction occurred on count three. The jury was then unable to agree on counts four and five and they were retried in January, 1975, and the convictions on these counts resulted. The combined appeal on the record on both trials thus challenges three convictions on similar charges under 18 U.S.C.A. § 111.

Defendant argues nine main propositions, claiming that the trial court erred: (1) in denying defendant's constitutional right to defend himself with the assistance of counsel, which he voluntarily and intelligently elected to do; (2) in the trial judge's refusing to disqualify for personal bias and prejudice; (3) in his denying use of the defense of lack of the requisite mental capacity necessary to form the specific intent required and in excluding testimony thereon We will detail the facts as we treat the appellate contentions.

(4) in denying use of compulsory process to obtain necessary witnesses; (5) in denying a motion to dismiss for invidious and discriminatory prosecution and in denying discovery thereon; (6) in refusing the admission in the second trial of defendant's testimony recorded at the first trial; (7) in denying a motion in limine to exclude proof of convictions subsequent to the first trial; (8) in overruling a motion to dismiss and to strike the petit jury array for improper composition excluding Black jurors; and (9) in not dismissing the charges for omission of allegations that the acts alleged were done "knowingly" and "willfully."

I

The defendant's claim of error in denial of self-representation

The defendant strenuously argues that the trial court erred (1) in denying him the right to represent himself, with assistance of counsel, defendant wishing to conduct portions of the trial; and (2) in denying outright his request to represent himself without assistance of counsel. He relies on the statutory provisions in 28 U.S.C.A. § 1654 allowing parties to plead and conduct their own cases in the federal courts personally or by counsel, and on the Sixth Amendment guarantee, construed in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562, to include a constitutional right of self-representation.

The factual background is critical and we must analyze it in some detail. It is important to remember that two trials are involved, the first occurring in May, 1974, and the second in January, 1975.

In a pre-trial motion on April 2, 1974, defendant requested the right to assist in his own defense (R. I-A, 196-98). 2 The court informed defendant he could conduct his own defense, but would have to do so completely, or that he could have appointed counsel. A similar motion was made on April 18, with a request for the right to make an opening and closing statement and to conduct cross-examination of particular government witnesses. At hearings before the first trial the court ruled that defendant could cross-examine particular witnesses, but that in so proceeding he could not make an opening or closing statement. At trial the court permitted the cross-examination of several witnesses by defendant and he actually conducted such cross-examination. He was represented by counsel at the trial on May 6 through 9, 1974.

From our examination of the written and oral motions of defendant we are satisfied that up through the first trial the defendant was asserting only the right to represent himself in conjunction with the assistance of counsel. Defendant argues that the right to self-representation under 28 U.S.C.A. § 1654 and Faretta, in combination with his right to the assistance of counsel guaranteed by the Sixth Amendment, sustain his right to such hybrid representation. This court, however, has considered and rejected this claim subsequent to Faretta. See United States v. Hill, 526 F.2d 1019, 1024-25 (10th Cir.). We there held that Faretta does not alter the established rules concerning hybrid representation, permission for which was recognized as being discretionary with the trial court. As in the Hill case, we feel that there was no abuse of discretion here in denying hybrid representation to the defendant and in limiting his participation to the cross-examination of several witnesses.

As noted, the first trial resulted in a conviction on count three, but a mistrial was declared as to counts four and five. They were retried in January, 1975, and convictions resulted.

Prior to the second trial there were several hearings involving the self-representation issue. On October 29, 1974, defendant orally moved for permission to assist in his own defense by making opening and closing statements and by conducting cross-examination The second trial was set for December 10. At a further pre-trial hearing on December 4 defendant again renewed his request to assist counsel by making opening and closing statements and conducting cross-examination. In connection with this request defendant said:

of certain witnesses. The trial court informed defendant he would again be permitted to cross-examine some witnesses but would not be allowed to make opening or closing statements. Defendant immediately moved that he be allowed to defend pro se (R. II-B, 14). The trial judge stated that he could not deny that request, which would be granted, warning that defendant would be limited to issues that are pertinent (Id.). And the court advised defendant that standby counsel, Mr. Shaw, was being appointed and would be available to take over the defense if defendant's conduct required his removal from the courtroom.

It is my statement now that I know I am not a qualified attorney to conduct a full trial, but there are certain aspects of the trial that I feel that I am competent to proceed with. (R. II-B, 43).

Defendant then said his motion to thus proceed had been denied by the court; that he had been given an "either or" alternative; that he had been placed in the difficult position of conducting his complete trial, which he would still do if the court denied him limited assistance of counsel (Id.).

Upon this further statement by the defendant, the trial court reinstated appointed counsel and informed defendant that he could cross-examine witnesses but could not make opening or closing statements. Defendant then renewed his motion to conduct his own defense. The court denied the motion, stating "we have fenced around long enough." (R. II-B, 47). 3

During the same lengthy hearing on December 4 the trial court reaffirmed his ruling several times, rejecting renewed motions by defendant to represent himself. The court, however, continued the case for two weeks to permit defendant to retain counsel. On December 12 defendant advised the court he had been in contact with Mr. Waxse. The court contacted this attorney and discussed with him the time needed for trial preparation, and again discussed this with the defendant in court. Defendant advised that he was unable to pay Mr. Waxse and the court appointed him.

Mr. Waxse represented defendant at the second trial on January 14 and 15, 1975. Prior to trial this counsel filed a written motion on January 10 ". . . to reconsider the defendant's motion to conduct certain portions of the trial pro se." (R. I-B, 64). The court denied the motion that day (Id. at 142).

As the trial court recognized, it is clear that both statutory and constitutional rights to self-representation exist. Faretta, supra, 422 U.S. at 812-13, 832-36, 95 S.Ct. 2525. However, we are persuaded that the right is one which the defendant must clearly and unequivocally assert before trial, as the accused did in Faretta. Faretta, supra, 422 U.S. at 835, 95 S.Ct. 2525. This is necessary because the trial court faces the difficult related problem of ascertaining whether there is an intelligent and voluntary waiver of the right to counsel. See Johnson v. Zerbst, 304 U.S. 458, 463-64, 58 S.Ct. 1019, 82 L.Ed. 1461.

The trial court here based the denial of self-representation on two grounds. He referred to the defendant's statement that he knew he was not qualified to conduct a full trial, and the court...

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