Roy Wilson, Petitioner-appellant, v. Barry Mintzes, Respondent-appellee, 733 F.2d 424 (6th Cir. 1984)

Petitioner Roy Wilson, a prisoner at the State Prison of Southern Michigan at Jackson, appeals from the district court's dismissal of his petition for a writ of habeas corpus. 28 U.S.C. § 2254. The issue presented is whether the petitioner was deprived of effective assistance of counsel when the trial judge denied petitioner's repeated requests for substitute counsel. We conclude that, on the facts of this case, the trial court should have allowed petitioner to retain new counsel and thus we reverse the district court.

The petitioner had been previously convicted by a jury of carnal knowledge of a female over 16, M.C.L.A. 750.520, in February 1974. The Michigan Supreme Court, however, reversed this conviction on the grounds that the petitioner should have been given a reasonable continuance following the prosecution's late endorsement of two expert witnesses. People v. Wilson, 397 Mich. 76, 83, 243 N.W.2d 257 (1976). Prior to the second trial, petitioner filed a motion to disqualify the original trial judge from rehearing the case. This motion was denied by an alternate judge.

On the second day of the second trial, the record indicates that a serious verbal altercation took place between the trial judge and defendant's retained counsel shortly after defense counsel began his cross-examination of Sgt. Audrey Martini, the officer in charge of the investigation. Defense counsel began his cross-examination by asking the officer for a copy of the search warrant which the officer had used to seize certain pieces of incriminating evidence. The officer replied that the warrant was in the court's file. After a brief exchange between the trial judge and defense counsel, the judge excused the jury and then asked defense counsel when he "last looked at the Court file for this case." Defense counsel replied that he had never looked at the actual court file, but that he had made an extensive review of his office file for the case. At that point, the trial judge expressed his concern over defense counsel's lack of preparation and asked petitioner if he wished to discharge his lawyer "as being incompetent". When petitioner answered that he did not wish to continue with his attorney, the trial judge asked petitioner to state his reasons for wanting substitute counsel. Petitioner replied that he wanted new counsel because his attorney "hasn't prepared for the case." The trial judge did not rule on petitioner's request, but rather denied defense counsel's subsequent request to leave the courtroom in order to make a phone call. In response, defense counsel became very agitated and repeatedly expressed his belief that he would be arrested if he left the courtroom.¹  After denying defense counsel's request for a mistrial, the trial judge brought the jury back into the courtroom and instructed the prosecutor to continue the trial. Defense counsel, however, continued to state that he was under arrest and that the jury should be so informed. Defense counsel also refused to cross-examine Sgt. Martini and indicated that (1) he refused to continue the trial and (2) he was no longer petitioner's attorney. At that point, court was adjourned for the day.² 

The following day, prior to the jury's admission to the courtroom, the petitioner expressed his belief that he could not get a fair trial due to the previous day's altercation. The trial judge replied that the jury "was not here when that took place," and further stated that " [i]f [defense counsel] had properly prepared and read the court file, he would not have asked [certain questions]." This statement triggered a new exchange between the trial judge and defense counsel regarding defense counsel's preparation for the case. Following this exchange, petitioner again indicated that he was not satisfied with his attorney due to "the events that took place yesterday." The court again stated that the incident took place outside the presence of the jury and the trial proceeded. Petitioner was later found guilty of rape and received a life sentence. The Michigan Court of Appeals affirmed his conviction and the Michigan Supreme Court denied petitioner's application for leave to appeal. Petitioner then filed a petition for a writ of habeas corpus, which the district court denied in June 1981. Petitioner appeals.

Although an essential element of a criminal defendant's sixth amendment right to effective assistance of counsel is the right to retain an attorney of the defendant's choice, Linton v. Perini, 656 F.2d 207, 208-09 (6th Cir. 1981), cert. denied, 454 U.S. 1162, 102 S. Ct. 1036, 71 L. Ed. 2d 318 (1982); United States v. Burton, 584 F.2d 485, 488-89 (D.C. Cir. 1978), cert. denied, 439 U.S. 1069, 99 S. Ct. 837, 59 L. Ed. 2d 34 (1979), this right is not absolute. "The right 'cannot be insisted upon in a manner that will obstruct an orderly procedure in courts of justice, and deprive such courts of the exercise of their inherent powers to control the same'." United States v. Burton, 584 F.2d at 489. Accordingly, " [i]n order to warrant a substitution of counsel during trial, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict." United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S. Ct. 1358, 35 L. Ed. 2d 587 (1973). See United States v. Welty, 674 F.2d 185, 188 (3rd Cir. 1982); Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976); United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973). The petitioner must also demonstrate that he was prejudiced by his attorney's performance. Hindman v. Wyrick, 702 F.2d 148, 152 (8th Cir. 1983); Owens v. Wainwright, 698 F.2d 1111, 1113 (11th Cir.), cert. denied, --- U.S. ----, 104 S. Ct. 117, 78 L. Ed. 2d 116 (1983); United States v. Sullivan, 694 F.2d 1348, 1349 (2d Cir. 1982); United States v. Baynes, 687 F.2d 659, 670 (3rd Cir. 1982). Finally, it is well settled that when a defendant voices a seemingly substantial complaint about counsel, the trial judge should make a thorough inquiry into the reasons for the defendant's dissatisfaction. See Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982), cert. denied, --- U.S. ----, 103 S. Ct. 1896, 77 L. Ed. 2d 285 (1983); McKee v. Harris, 649 F.2d 927, 933 (2d Cir. 1981), cert. denied, 456 U.S. 917, 102 S. Ct. 1773, 72 L. Ed. 2d 177 (1982); United States v. Hart, 557 F.2d 162, 163 (8th Cir.), cert. denied, 434 U.S. 906, 98 S. Ct. 305, 54 L. Ed. 2d 193 (1977); United States v. Young, 482 F.2d at 995; Sawicki v. Johnson, 475 F.2d 183, 184 (6th Cir. 1973). Such an inquiry is necessary if the court is to determine whether good cause for substitution of counsel exists. United States v. Welty, 674 F.2d at 188.

When petitioner enunciated his reasons for his dissatisfaction with counsel, the record indicates that the trial judge was already engaged in an ongoing verbal altercation with defense counsel and thus the court made only a perfunctory, surface inquiry to determine the truth and scope of petitioner's allegations. While the trial court's failure to make a thorough inquiry is not in and of itself a sixth amendment violation, we hold that petitioner did in fact have good cause to request new counsel and that the trial court's denial of petitioner's request deprived petitioner of his sixth amendment right to effective assistance of counsel.

We note at the outset that the state appellate court's ultimate finding that petitioner had effective counsel is not entitled to a presumption of correctness pursuant to 28 U.S.C. § 2254(d). Adams v. Jago, 703 F.2d 978, 980 (6th Cir. 1983). Such a conclusion is legal in nature and is freely reviewable by this court.³  Id. We also note that while petitioner's request for new counsel came during the trial, there is no evidence that petitioner's request was contrived for purposes of delay. See United States v. Welty, 674 F.2d at 190. During the verbal altercation between the trial judge and defense counsel, the record indicates that defense counsel became extremely agitated at the trial judge's comments and essentially sought to protect himself rather than the interests of his client. Although most of the altercation took place outside the presence of the jury, the jury was present when defense counsel stated that (1) he refused to make any further objections, (2) he refused to continue the trial, and (3) he was no longer petitioner's attorney. Although we agree with the state court of appeals that the conduct of the trial judge was, at times, abrasive, we nevertheless hold that defense counsel's attempt to remove himself from the case in front of the jury was inexcusable and prejudicial. Defense counsel also chose to continue his heated exchange with the trial judge rather than cross-examine the police officer in charge of the investigation. That defense counsel failed to cross-examine a key government witness is further evidence that he was, at that time, unwilling or unable to protect the interests of his client. In short, we hold that this conduct, along with petitioner's unheeded statements of dissatisfaction with his counsel, evidence an irreconcilable conflict between the interests of defense counsel and petitioner which prejudiced petitioner's case and thus deprived petitioner of his sixth amendment right to effective assistance of counsel. In light of our holding on petitioner's effective assistance of counsel claim, we do not address petitioner's claim that he was denied a fair trial due to bias on the part of the trial judge.

Accordingly, the judgment of the district court is REVERSED and the case is REMANDED to the district court with instructions to grant the writ of habeas corpus.