U.S. v. Casanova

• Decision Date: 16 April 1981
• Docket Number: No. 79-1789,79-1789
• Citation: 642 F.2d 300
• Parties: 8 Fed. R. Evid. Serv. 131 UNITED STATES of America, Plaintiff-Appellee, v. Tony Richard CASANOVA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 300

642 F.2d 300

8 Fed. R. Evid. Serv. 131

UNITED STATES of America, Plaintiff-Appellee, v. Tony Richard CASANOVA, Defendant-Appellant.

No. 79-1789.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 6, 1980.

Decided April 16, 1981.

John W. Tulacz, Los Angeles, Cal., for defendant-appellant.

Deanne H. Smith, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, Chief Judge, ALARCON, Circuit Judge, and CLAIBORNE, ^* District Judge.

PER CURIAM:

We affirm appellant's conviction of aiding and abetting the robbery of a savings and loan association.

Appellant asserts he was denied effective assistance of counsel because his attorney (1) "represented to the court prior to the commencement of trial that the attorney-client relationship had completely broken down, but did not make a record of the factual bases supporting this assertion"; (2) "did not renew a motion to continue or be relieved as counsel after being apprised in open court ... of a defense based on the involuntariness of defendant's acts"; and (3) "failed to present any defense whatsoever although apprised of a possible defense based on the involuntariness of defendant's acts and the availability of one or more witnesses to testify thereto."

The record does not establish ineffective assistance of counsel under the standards announced in Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc). As to the first claim, trial counsel appeared to be fully familiar with the facts and applicable law; there is nothing in the record to support the suggestion that counsel's failure to make a more specific factual showing in support of his assertion that communication between himself and his client had broken down was based upon anything other than an absence of any basis for such a showing. Moreover, appellant's new counsel in this appeal has noted that even he could "only speculate" as to what such facts would be. ¹ As to the second and third claims, so far as this record shows defense counsel's course of conduct in challenging the adequacy of the government's evidence identifying appellant as the perpetrator of the offense, rather than undertaking to present an affirmative defense of involuntariness, was a reasonable choice among available trial strategies.

Appellant also asserts that he was impermissibly prejudiced by the admission of testimony concerning his involvement in two prior robberies, and that there was insufficient evidence to support his conviction.

The district court did not abuse its discretion in concluding that the probative value, on the issue of appellant's knowledge and intent, of evidence that appellant had committed two similar robberies within a month prior to the offense charged outweighed any improper prejudicial effect of this evidence.

The evidence of guilt was adequate. The testimony of an accomplice, if believed, is sufficient to sustain a conviction. United States v. Williams, 435 F.2d 642, 646 (9th Cir. 1970). In any event, the accomplice's testimony was corroborated by the testimony of two other witnesses.

AFFIRMED.

ALARCON, Circuit Judge, dissenting:

I respectfully dissent.

By ruling that the motion was untimely, the trial judge utterly failed to exercise his discretion as to whether there was a breakdown in the attorney-client relationship which required the granting of appellant's motion for a substitution to protect appellant's right to the effective assistance of counsel.

My esteemed colleagues have concluded that "there is nothing in the record to support the suggestion that counsel's failure to make a more specific factual showing in support of his assertion that communication between himself and his client had broken down was based upon anything other than an absence of any basis for such a showing." Ante at 1. The majority is quite correct in noting that the record is silent as to the facts which support the claim of a breakdown in the attorney-client relationship. However, the reason advanced by the majority for the failure to present any evidence in support of the contention that there was a breakdown in the attorney-client relationship is sheer speculation. The majority has failed to point out that the reason the record is silent is that the trial court refused to grant appellant's written application for a factual hearing as to his motion for substitution of counsel based on a "breakdown in his attorney-client relationship with his present attorney of record." (Application for Order Shortening Time Re: Hearing, at 2, lines 4-6). This application was filed on August 21, 1979. During the morning session of the court on August 21, 1979, Mr. Yam advised the court that he first became aware of the breakdown in his relationship with his client the previous afternoon. The district court denied appellant the opportunity to present any evidence on the basis that the request was untimely. Had the district court conducted a factual hearing, as it was required to do by the law of this circuit, it may be, as conjectured by my colleagues, that the record would have disclosed insufficient facts to permit a substitution on the grounds of a breakdown in the attorney-client relationship. The majority has somehow converted the denial of an opportunity to present evidence of a breakdown in the attorney-client relationship into a conclusive presumption that no such evidence exists.

Appellee forthrightly frames the controlling issue in this case as follows: "Whether the trial court's refusal to grant the requested substitution violated his right to effective counsel."

The test for determining whether a trial court has violated a defendant's right to effective counsel by denying a request to dismiss counsel was summarized by this court in United States v. Mills, 597 F.2d 693 (9th Cir. 1979):

The denial of a motion to dismiss counsel is a matter resting within the sound discretion of the trial judge. (citation omitted) However, the court's discretion is not without limit. In Brown v. Craven, 424 F.2d 1166 (9th Cir. 1970), we held that refusal to allow the substitution of attorneys may result in a denial of the constitutional right to effective assistance of counsel if the defendant and his attorney are embroiled in an "irreconcilable conflict". Id. at 1170. In applying the rule developed in Craven, we consider a number of factors, including the timeliness of the motion to dismiss counsel, the adequacy of the court's inquiry into the defendant's complaint, and whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense. 597 F.2d at 700.

In Mills, we found that the district court "held an adequate and fair hearing on Mills' motion." Id.

Applying the Mills' test to the matter before us, the record discloses the following facts:

1. The motion was presented at the next session of the court after counsel discovered that there was a breakdown in the attorney-client relationship. Thus, under the facts of this case, the motion for dismissal of counsel was not untimely when measured from the time of the discovery of the facts which could be presented in support of the requested substitution.

2. No factual hearing was held. This is not, then, a case of abuse of discretion. The trial court failed to exercise the discretionary powers spelled out in Mills. As pointed out in Mills in the passage quoted above, refusal to allow a substitution of attorneys may result in a denial of the constitutional right to effective assistance of counsel where there is a irreconcilable breakdown in the attorney-client relationship. I do not believe we can...