ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (Criminal No. 80-00390-02)
Before Adams, Gibbons and Garth, Circuit Judges.
John Jacob Welty, the defendant-appellant in this case, claims that he did not knowingly and intelligently waive his sixth amendment right to counsel when he was tried and convicted for bank robbery. He thus seeks a new trial.
The waiver-of-counsel issue, which we have encountered before in United States v. McFadden, 630 F.2d 963 (3d Cir. 1980), cert. denied, 450 U.S. 1043, 101 S. Ct. 1763, 68 L. Ed. 2d 241 (1981), is a troubling one, particularly in light of the overwhelming evidence of Welty's guilt, as revealed by the instant record. Nevertheless, giving full recognition to our mandate that every defendant be afforded a fair trial, we are required to reverse Welty's conviction and direct that he be tried anew. We do so because the record does not reveal that the standard for an effective waiver, as enunciated in Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938), was met in this case.
On July 25, 1980, two armed men robbed the Town and Country Bank in Pohatcong, New Jersey. A grand jury investigating the robbery subsequently subpoenaed Welty to testify before it. On November 14, 1980, Welty appeared before a federal magistrate to request the appointment of counsel to represent him in connection with his grand jury appearance. After questioning Welty and satisfying himself that Welty could not afford to retain a private attorney, the magistrate appointed Michael N. Pedicini, an assistant federal public defender, to represent Welty.
On November 21, 1980, Welty, along with Elwood Jones, was indicted for one count of bank robbery and one count of assault with a dangerous weapon while robbing a bank, in violation of 18 U.S.C. § 2113(a) and (d) (1976). On February 2, 1981, just before the jury was to be selected for his trial, Welty requested an opportunity to secure his own counsel, or in the alternative, to represent himself. Def.App. at 10. The trial judge, observing that Welty had previously asserted that he could not afford privately retained counsel, indicated his belief that Welty's motion was merely a tactic to delay the trial. The judge told Welty he would not delay the trial to allow Welty to obtain substitute counsel, and that Welty would either have to continue with Pedicini as his counsel or proceed pro se. After Welty responded, "I'll go without him (Pedicini)," the court discharged Pedicini from the case. Id. at 12. Welty then proceeded to represent himself during the first and second days of the trial.
At the start of the third day of the trial, February 4, 1981, after most of the witnesses had been called, Welty changed his mind about the advisability of acting as his own attorney, and made a motion for "assistance of effective counsel." Id. at 13. The trial judge, noting that Welty had had a lawyer but had fired him, summarily denied Welty's motion as well as his motion for a mistrial, perceiving them as an attempt to manipulate the court and to introduce error into the proceedings. The court said: "You made this bed, my friend, and you're going to lie in it. I am not wasting a lawyer's time to sit around here and hold your hand." Id. at 14.
On February 5, 1981, Welty and Jones were convicted on both counts of the indictment. After the trial had concluded, Welty asked Pedicini to represent him in connection with his sentencing. Supp.App. at 27. On March 10, 1981, Welty was sentenced to twenty-five years' imprisonment.*fn1 He now appeals.
Where, on the eve of trial, a defendant seeks new counsel, or, in the alternative, opts to represent himself, the district court must engage in two lines of inquiry. First, the court must decide if the reasons for the defendant's request for substitute counsel constitute good cause and are thus sufficiently substantial to justify a continuance of the trial in order to allow new counsel to be obtained. If the district court determines that the defendant is not entitled to a continuance in order to engage new counsel, the defendant is then left with a choice between continuing with his existing counsel or proceeding to trial pro se, thus bringing into play the court's second stage of inquiry. Since the decision to proceed pro se involves a waiver of the defendant's sixth amendment right to counsel, the district court then has the responsibility of ensuring that any decision by the defendant to represent himself is intelligently and competently made. Johnson v. Zerbst, supra, 304 U.S. at 465, 58 S. Ct. at 1023.
It is vital that the district court take particular pains in discharging its responsibility to conduct these inquiries concerning substitution of counsel and waiver of counsel. Perfunctory questioning is not sufficient. This is true even when the trial judge strongly suspects that the defendant's requests are disingenuous and designed solely to manipulate the judicial process and to delay the trial. Although such improper tactics by an accused cannot be allowed to succeed, at the same time, a trial cannot be permitted to go forward when a defendant does not fully appreciate the impact of his actions on his fundamental constitutional rights.
When a defendant requests a substitution of counsel on the eve of trial, the district court must engage in at least some inquiry as to the reason for the defendant's dissatisfaction with his existing attorney. As Chief Justice (then Judge) Burger stated in Brown v. United States, 105 U.S. App. D.C. 77, 264 F.2d 363, 369 (D.C.CIR.) (EN BANC) (BURGER, J., concurring in part), cert. denied, 360 U.S. 911, 79 S. Ct. 1299, 3 L. Ed. 2d 1262 (1959):
(W)hen, for the first time, an accused makes known to the court in some way that he has a complaint about his counsel, the court must rule on the matter. If the reasons are made known to the court, the court may rule without more. If no reasons are stated, the court then has a duty to inquire into the basis for the client's objection to counsel and should withhold a ruling until reasons are made known.
It is true that "there is no absolute right to a particular counsel," United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir. 1969), cert. denied, 397 U.S. 946, 90 S. Ct. 964, 25 L. Ed. 2d 127 (1970), and that in order to warrant a substitution of counsel during trial, the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict with his attorney, McKee v. Harris, supra, 649 F.2d at 931; 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, 93 S. Ct. 1357, 93 S. Ct. 1386, 93 S. Ct. 1403 (1973). But without even a minimal inquiry into the reason for the defendant's dissatisfaction with his lawyer, the district court has no way of knowing whether good cause for substitution of counsel exists.
If the district court has made the appropriate inquiries and has determined that a continuance for substitution of counsel is not warranted, the court can then properly insist that the defendant choose between representation by his existing counsel and proceeding pro se. McKee v. Harris, supra, 649 F.2d at 930-31; Wilks v. Israel, 627 F.2d 32, 35-36 (7th Cir. 1980); United States v. Davis, 604 F.2d 474, 483 (7th Cir. 1979); Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976). The court, however, has the responsibility of ensuring that any choice of self-representation is made knowingly and intelligently, with an awareness of the dangers and ...