United States v. Curtiss
Decision Date | 31 March 1964 |
Docket Number | Docket 28112.,No. 193,193 |
Citation | 330 F.2d 278 |
Parties | UNITED STATES of America, Appellee, v. Michael CURTISS, Defendant-Appellant. |
Court | U.S. Court of Appeals — Second Circuit |
Lewis L. Douglass, Asst. U. S. Atty. (Joseph P. Hoey, U. S. Atty. for Eastern District of New York, on the brief), for appellee.
Lloyd A. Hale, New York City (Louis Bender, New York City, on the brief), for defendant-appellant.
Before MEDINA, WATERMAN and MARSHALL, Circuit Judges.
Appellant was convicted after a jury trial on his plea of not guilty to a two-count indictment charging evasion of personal income tax for the years 1955 and 1956, in violation of 26 U.S.C. § 7201. He was sentenced to nine months imprisonment on each count, the sentences to run concurrently. A review of the record in this case convinces us that the totality of error deprived appellant of a fair trial and requires a reversal of the judgment.
Immediately prior to the trial defendant requested a conference which was held in the judge's chambers. He complained that he had been in an automobile accident two months before and was not physically able to go to trial. After a series of questions by the judge as to the details of the accident and the extent of the alleged injuries, he asked Curtiss what he should do. Defendant replied by giving him a written "statement" concerning his efforts to have the Assistant U. S. Attorney agree to accept a plan for payment of the tax deficiencies in lieu of prosecution. To this, the judge explained that there was a difference between civil and criminal responsibilities. The following colloquy then took place:
From the minutes of the conference it appears that defendant had had three attorneys during the pre-trial period, the last one being Marshall Kaplan who was appointed by the court. The judge stated that Mr. Kaplan had subsequently advised him that defendant did not want him as a lawyer and preferred to act as his own lawyer. However, the judge requested Mr. Kaplan to sit in the court and to be available to defendant for advice.
The trial followed immediately after the conference with the defendant representing himself and Mr. Kaplan seated at the table with him. The Government's case consisted of several exhibits and oral testimony. There was some cross-examination and some objections to exhibits by defendant, all of which were overruled. The defendant did not testify and called only one witness, a man who had previously testified for the Government. At the conclusion of the trial, the judge stated:
"Let the record note the defendant is now conferring with Mr. Kaplan, whom the Court has assigned as a lawyer, and he has conferred with him throughout the trial, which he is entitled to do."
Defendant's inept efforts to make an opening statement, to object to offers of evidence, to question and cross-examine witnesses, and to sum up, leave no doubt that he was not adequately represented. Therefore, the sole question on this point is whether he intelligently waived his right to assistance of counsel and knowingly chose to represent himself. While we recognize the difficulties a trial judge faces in situations of this kind, we believe that the right to counsel in a federal criminal trial can only be waived after a clear-cut explanation of the defendant's rights and an intelligent exercise of the choice.
"If the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel". Fed.R.Crim.P. 44.
Indeed, we must "indulge every reasonable presumption against waiver," and cannot "presume acquiescence in the loss of fundamental rights." Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). See also: Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948).
There is nothing in the record to show an explanation of defendant's right to counsel as set forth in Rule 44,1 nor is there a clear cut election by defendant. At best, the court relied on a statement by Mr. Kaplan, made some time before the date of the trial, to the effect that Curtiss did not wish to avail himself of his services.2 Curtiss' statements indicate that while he was unhappy about his relationship with Mr. Kaplan, he certainly had no wish to try the case himself but felt that "he had no choice." Of course the judge need not have appointed other counsel besides Mr. Kaplan unless Curtiss showed good cause, United States v. Gutterman, 147 F.2d 540 (2 Cir. 1945), but it was erroneous to require him to try his own case without a clear cut statement that he intelligently wished to do so.
Even if some doubt exists on the question whether defendant effectively waived his right to counsel, the judgment must be reversed because of improper statements made during the government's summation, which take on special significance where, as here, the defendant has acted as his own attorney. During his summation, Curtiss several times sought to explain his business conduct and give excuses for his tax deficiencies. Each time, the judge on objection by the prosecution admonished him to confine his argument to the evidence. The prosecutor, when his turn came to address the jury, made the following comments:
Not only were these statements inflammatory and prejudicial to the defendant, but they in effect constituted a comment on his failure to take the stand, which itself is reversible error.
"The Fifth Amendment to the United States Constitution provides in unequivocal terms that no person may `be compelled in any criminal case to be a witness against himself.\' To protect this right Congress has declared that the failure of a defendant to testify in his own defense `shall not create any presumption against him.\' Ordinarily, the effectuation of this protection is a relatively simple matter — if the defendant chooses not to take the stand, no comment or argument about his failure to testify is permitted." Stewart v. United States, 366 U.S. 1, 2, 81 S.Ct. 941, 6 L.Ed. 2d 84 (1961).
Appellant's summation as his own attorney did not constitute a waiver of his Fifth Amendment protection. Nor could it be used as an excuse to disregard the admonition against "comment or argument about his failure to testify." The government contends that defendant's efforts to argue his case in summation with facts outside the record "left the Assistant United States Attorney no alternative except to let these arguments go unanswered or to answer them in his summation." We do not agree. In a case involving unfair tactics of defense counsel, the Fifth Circuit stated:
Dugan Drug Stores, Inc. v. United States, 326 F.2d 835, 837 (1964).
When appellant argued outside the record, every objection by the prosecution was sustained with clear rulings by the judge that argument outside the record was not permitted and the jury was adequately charged on that point. The fullest protection was available to the prosecution. The cases cited by the government concerning arguments of counsel in reply to arguments of opposing counsel do not support the above comment on the failure of the defendant to take the witness stand. This cannot be viewed as harmless error. Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961); Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L. Ed. 257 (1939); White v. United States, 114 U.S.App.D.C. 238, 314 F.2d 243 (D. C.Cir. 1962). Cf. Kyle v. United States, 297 F.2d 507 (2 Cir. 1961). This right is to be protected regardless of the crime charged or the weight of the evidence supporting the charge.
The judgment is reversed, and the cause remanded for a new trial.
My brothers of the majority would set aside the judgment of conviction and grant a new trial because: (1) it is said the record contains nothing to show "a clear explanation" by Judge Bruchhausen to Curtiss of his right to have couns...
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