Lewis v. United States

430 A.2d 528, 1981 D.C. App. LEXIS 277
CourtDistrict of Columbia Court of Appeals
DecidedMay 5, 1981
Docket11209, 79-348
StatusPublished
Cited by8 cases

This text of 430 A.2d 528 (Lewis v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lewis v. United States, 430 A.2d 528, 1981 D.C. App. LEXIS 277 (D.C. 1981).

Opinions

PER CURIAM:

Appellant was convicted of first degree murder while armed,1 first degree felony murder,2 burglary,3 and armed robbery.4 He appealed on the ground that he was denied counsel of his choice. His direct appeal has been consolidated with his appeal from the denial of his motion to vacate sentence, alleging ineffective assistance of counsel, under D.C.Code 1973, § 23-110.

On June 3, 1976, after trial commenced and as the jury was about to be selected, attorney Meyer Koonin attempted to enter an appearance on behalf of appellant. Mr. Koonin admitted that he had been approached by appellant’s mother only that morning and that he had never met appellant. He requested a continuance to familiarize himself with the case. Appellant was already being represented by his court-appointed attorney, Mr. Timberlake, his third attorney to date.5 The trial court denied the request for a continuance.

Mr. Timberlake continued as lead counsel. Mr. Koonin was allowed to enter an appearance and confer with Timberlake; however, he was prohibited from examining witnesses or jurors or making motions. The trial judge explained these restrictions to Koonin by pointing out his total unfamiliarity with the case and his resulting inability to cross examine witnesses. After the midday recess, Koonin withdrew. The next morning, appellant told the court he wished to have Koonin as his counsel. The court explained that Mr. Koonin had not been banished by the court, but rather, had chosen to withdraw.

Appellant’s first argument is that the court was required to conduct an inquiry into the effectiveness of his appointed counsel because appellant’s attempts to secure additional, private counsel should have alerted the court to appellant’s dissatisfaction with his appointed counsel. To be sure, “[w]hen a defendant makes a pretrial challenge to the effectiveness of counsel ... and requests the appointment of new counsel ... the trial court has a constitutional duty to conduct an inquiry sufficient to determine the truth and scope of the defendant’s allegations.” Monroe v. United States, D.C.App., 389 A.2d 811, 820, cert. denied, 439 U.S. 1006, 99 S.Ct. 621, 5 L.Ed.2d 683 (1978). Accord, Farrell v. United States, D.C.App., 391 A.2d 755 (1978). Here, however, defendant failed to trigger the inquiry mandated by Monroe and Farrell because he never expressed dissatisfaction with Mr. Timberlake. Some inadequacy must be alleged, either by the defendant or by defendant’s attorney himself, before the court is obliged to question the attorney’s effectiveness. See Pierce v. United States, D.C.App., 402 A.2d 1237 (1979) (when existing counsel requests appointment of co-counsel to help try capital case because of his own perceived inexperience, court must inquire into effectiveness). As we noted in Monroe v. United States, supra, [530]*530defendants’ eve-of-trial motions for continuance in order to retain private counsel will not necessitate effectiveness hearings when defendants “fail[ ] to articulate any substantial basis for dissatisfaction with their attorneys .. .. ” Id. at 821 n.6.

Turning to appellant’s direct appeal, we conclude that the trial court did not err in denying a continuance to allow Koonin to prepare for trial. The request for a continuance was clearly too late under Super.Ct.Cr.R. 111(c), which states: “Except in extraordinary or unforeseen circumstances, no continuances shall be granted in any case unless requested at least two days before the scheduled date of trial.” The court had previously granted a continuance when Timberlake was appointed in place of attorney Kubinski. The government’s many witnesses had been called. Thus, the trial judge did not abuse her broad authority to move forward with the trial. See Gressette v. United States, D.C.App., 256 A.2d 418 (1969) (motion for continuance in order to substitute private attorney for appointed attorney made on day of trial was too late); United States v. Bragan, 499 F.2d 1376, 1379 (4th Cir. 1974) (“the Constitution does not afford an accused . .. the ‘unbridled right’ to insist that his trial be held in abeyance while he replaces one competent attorney with another”).

Nor did the limitations placed on attorney Koonin violate appellant’s Sixth Amendment right to counsel of his choice. At all times throughout the trial, appellant had the effective assistance of attorney Timberlake. The right to a particular attorney is not absolute. Harling v. United States, D.C.App., 382 A.2d 845, 846-47 (1978). It can be qualified by, for example, the court’s need to function in an orderly manner, e. g., United States v. Bragan, supra; United States v. Cozzi, 354 F.2d 637, 639 (7th Cir. 1965), cert. denied, 383 U.S. 911, 86 S.Ct. 896, 15 L.Ed.2d 666 (1966), the court’s right to exclude laypersons from practicing law before it, United States v. Wilhelm, 570 F.2d 461 (3d Cir. 1978); see also Harrison v. United States, 128 U.S.App.D.C. 245, 254, 387 F.2d 203, 212, rev’d on other grounds, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1967), or, as in this case, the court’s obligation to protect defendants from their chosen attorney’s violation of ethical rules designed to protect the defendant. United States v. Dolan, 570 F.2d 1177 (3d Cir. 1978). See also Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 1717, 64 L.Ed.2d 333 (1980) (unless the trial court knows or reasonably should know that a conflict of interest exists, the court need not initiate an inquiry); Glasser v. United States, 315 U.S. 60, 71, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942) (trial judge has duty to see the trial is conducted with solicitude for the essential right of the accused to have conflict-free representation).

The court has a responsibility to supervise members of the bar and enforce ethical standards. This vigilance will not only protect litigants from their counsel’s ethical violations, but will also enable the court to avoid delays in the smooth functioning of the trial which would be likely to occur if incompetent attorneys are allowed to appear.

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Lewis v. United States
430 A.2d 528 (District of Columbia Court of Appeals, 1981)

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Bluebook (online)
430 A.2d 528, 1981 D.C. App. LEXIS 277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-united-states-dc-1981.