United States of America Ex Rel. George Maldonado, Petitioner-appellee, v. Hon. Wilfred L. Denno, As Warden, Sing Sing Prison, Ossining, New York, Respondent-appellant.united States of America Ex Rel. Nicholas Diblasi, Petitioner-appellant, v. Hon. Daniel Mcmann, As Warden of Clinton Prison, Dannemora, New York, Respondent-appellee, 348 F.2d 12 (2d Cir. 1965)

After a jury trial in the Criminal Term of the New York Supreme Court for Kings County, George Maldonado and Nicholas DiBlasi were convicted of burglary in the third degree and of petit larceny. They received suspended sentences on the larceny counts but were sentenced to five to ten years in prison as second-felony offenders on the burglary counts. Their convictions were affirmed without opinion by the Appellate Division, Second Department, 21 A.D.2d 964, 252 N.Y.S.2d 405. Leave to appeal to the Court of Appeals was denied by Associate Judge Fuld on October 27, 1964.

Having exhausted all available state remedies, Maldonado applied to the United States District Court for the Southern District of New York for a writ of habeas corpus, seeking release from Sing Sing Prison on the ground that he had been denied his federal right "to conduct his own defense without the aid of counsel." Judge Tenney granted the writ, with an opinion reported at 239 F. Supp. 851, and ordered the state authorities to retry Maldonado or to free him from prison.

DiBlasi, who was incarcerated in Clinton Prison, brought a virtually identical petition in the United States District Court for the Northern District of New York. He fared worse than his companion, however, for Judge Foley denied and dismissed the application, with an opinion reported at 236 F. Supp. 592. Appeals from the two orders were argued before this court on the same day, and we affirm both dispositions.

The relevant facts are undisputed. Maldonado and DiBlasi were indicted on September 28, 1962. At their arraignments upon the indictment on October 4, Maldonado was represented by retained counsel and DiBlasi by assigned counsel. Thereafter, when Maldonado's retained counsel withdrew because he had not been paid, the lawyer assigned to represent DiBlasi was also assigned to represent Maldonado, and he defended both men throughout the subsequent trial on January 10 and 11, 1963.

When the cases were called on the calendar but before the jury had been chosen, both Maldonado and DiBlasi asked for the assignment of other counsel. The trial judge denied their requests. Maldonado then stated, "Your Honor, if I feel that the case must go on, I want to be able to act as my own attorney. Would you give me that permission, sir?" This request likewise was denied.¹  At the close of the trial, both Maldonado and DiBlasi repeated their objections regarding the lawyer who had been assigned to them.

The case law, although wavering in spots, appears to lay down the following doctrines concerning a criminal defendant's right to represent himself at trial. The right derives, not from legislative enactments or judicial rules, but from the Federal Constitution. United States v. Plattner, 330 F.2d 271, 273 (2 Cir. 1964); United States v. Private Brands, Inc., 250 F.2d 554, 557 (2 Cir. 1957), cert. denied, 355 U.S. 957, 78 S. Ct. 542, 2 L. Ed. 2d 532 (1958); United States v. Mitchell, 137 F.2d 1006, 1010 (2 Cir. 1943), cert. denied, 321 U.S. 794, 64 S. Ct. 785, 88 L. Ed. 1083 (1944); see Moore v. State of Michigan, 355 U.S. 155, 161, 78 S. Ct. 191, 2 L. Ed. 2d 167 (1957); Carter v. People of State of Illinois, 329 U.S. 173, 174-175, 67 S. Ct. 216, 91 L. Ed. 172 (1946); Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942). As such, the right is applicable in state trials as well as in federal prosecutions. See Moore v. State of Michigan, supra, 355 U.S. at 161, 78 S. Ct. 191; Carter v. People of State of Illinois, supra, 329 U.S. at 174-175, 67 S. Ct. 216; United States ex rel. Hyde v. McMann, 263 F.2d 940, 943 (2 Cir.), cert. denied, 360 U.S. 937, 79 S. Ct. 1462, 3 L. Ed. 2d 1549 (1959).

This right of an accused to defend himself, as we conceive it, rests on two bases. See Adams v. United States ex rel. McCann, supra, 317 U.S. at 279, 63 S. Ct. at 241; United States v. Mitchell, supra, 137 F.2d at 1011. He "must have the means of presenting his best defense," and to this end he "must have complete confidence in his counsel." Without such confidence a defendant may be better off representing himself. Moreover, even in cases where the accused is harming himself by insisting on conducting his own defense, respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires and if he makes the choice "with eyes open."

The right of a defendant in a criminal case to act as his own lawyer is unqualified if invoked prior to the start of the trial. United States v. Plattner, supra, 330 F.2d at 273; United States v. Bentvena, 319 F.2d 916, 938 (2 Cir.), cert. denied, Ormento v. United States, 375 U.S. 940, 84 S. Ct. 345, 11 L. Ed. 2d 271 (1963); United States v. Dennis, 183 F.2d 201, 234 (2 Cir. 1950), aff'd, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 (1951). Once the trial has begun with the defendant represented by counsel, however, his right thereafter to discharge his lawyer and to represent himself is sharply curtailed. There must be a showing that the prejudice to the legitimate interests of the defendant overbalances the potential disruption of proceedings already in progress, with considerable weight being given to the trial judge's assessment of this balance. United States v. Bentvena, supra, 319 F.2d at 938; United States ex rel. Hyde v. McMann, supra, 263 F.2d at 943; United States v. Dennis, supra, 183 F.2d at 234.

Regardless of whether he has been notified of his right to defend himself, the criminal defendant must make an unequivocal request to act as his own lawyer in order to invoke the right. United States v. Gutterman, 147 F.2d 540, 542, 157 A.L.R. 1221 (2 Cir. 1945); United States v. Mitchell, supra, 137 F.2d at 1010. If an unequivocal request were not required, convicted criminals would be given a ready tool with which to upset adverse verdicts after trials at which they had been represented by counsel. United States v. Plattner, supra, 330 F.2d at 276; United States v. Gutterman, supra, 147 F.2d at 542. And if notice of the right had to be given, the task of administering the overriding constitutional policy in favor of granting a lawyer to every person accused of a serious crime would become unduly treacherous. Cf. Gideon v. Wainwright, 372 U.S. 335, 344-345, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); Carnley v. Cochran, 369 U.S. 506, 514-517, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962).

We turn now to the facts of these cases. We hold that if Maldonado and DiBlasi clearly sought to represent themselves, after their cases had been called on the calendar but before the jury had been chosen, they had an unqualified right to have their requests granted.²  At this stage there was no danger of disrupting proceedings already in progress. The State argues that if Maldonado and DiBlasi had been allowed to represent themselves the trial judge would have been obliged also to grant them a continuance so that they might prepare their defenses. On the contrary, the trial judge would have been entirely justified, once their cases had been called, in insisting that the two men proceed to trial at once, with or without the lawyer who had been assigned to them. See United States v. Mitchell, supra, 137 F.2d at 1011; cf. United States v. Paccione, 224 F.2d 801, 802 (2 Cir.), cert. denied, 350 U.S. 896, 76 S. Ct. 155, 100 L. Ed. 788 (1955).

We agree with Judge Tenney that Maldonado made an unequivocal request to conduct his own defense. Compare United States v. Gutterman, supra, 147 F.2d at 542; United States v. Mitchell, supra, 137 F.2d at 1010.³  The State contends that if his request had been granted a reviewing court might well have found that he had not executed an intelligent and knowing waiver of his right to the assistance of counsel. Any doubt on this score, however, could have been settled by an immediate inquiry prior to trial to determine whether Maldonado had made his choice "with eyes open," an inquiry which the trial judge declined to conduct. See United States v. Plattner, supra, 330 F.2d at 276; United States v. Mitchell, supra, 137 F.2d at 1011.

We also agree with Judge Foley that DiBlasi never made the requisite unequivocal request to conduct his own defense. United States v. Gutterman, supra, 147 F.2d at 542; United States v. Mitchell, supra, 137 F.2d at 1010. DiBlasi claims that Maldonado was speaking for both of them, and that in any event he (DiBlasi) was dissuaded from lodging a similar demand of his own because the trial judge had just turned down his companion in summary fashion. These are precisely the sort of hindsight claims which have led us to hold that the accused must unmistakably commit himself, in the presence of the trial judge, to the alternative of conducting his own defense.

Orders affirmed.