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District Court of Appeal, Second District, Division 2, California.


Cr. 3595.

Decided: January 20, 1943

Morris Lavine, of Los Angeles, for appellants. Earl Warren, Atty. Gen., Gilbert F. Nelson, Deputy Atty. Gen., and John F. Dockweiler, Dist. Atty., and Jere J. Sullivan and Marcus R. Brandler, Deputy Dist. Attys., all of Los Angeles, for respondent.

Defendants were charged in an indictment with the crime of robbery, in that on June 18, 1941, in the city of Los Angeles they forcibly took the sum of $4,170.56, from Ruth Lewis, who had the money in her possession as an employee of Prudential Life Insurance Company. There have been two trials. The jury disagreed at the first trial and at the second trial the jury brought in verdicts of guilty of robbery in the first degree. Defendants have appealed from the judgments of conviction and from an order denying their motions for a new trial.

Ruth Lewis was employed on the date mentioned in the indictment at the offices of Prudential Life Insurance Company at 5544 North Figueroa Street, the offices being located on the second floor of the building. Shortly before 3:00 o'clock she was directed to deposit funds of the company in a bank and, accompanied by K. E. Powers, the assistant superintendent for the insurance company, she started down the steps to the first floor. Two robbers, one of whom was armed with a gun, took the money from her. It is charged by the prosecution that defendants, who were later arrested in the State of Illinois, were these two robbers. At the trial the prosecution relied mainly upon the positive identification of the two defendants by Mr. Powers. Neither of the defendants took the witness stand in his own behalf but each sought to establish an alibi as a defense. A number of witnesses gave testimony in support of the contention that defendant Giardano was in the State of Missouri on June 18, 1941, and a number of other witnesses gave testimony in support of the contention that defendant Lanigan was in the State of Nevada on that date.

Defendants contend that they were deprived of their constitutional rights by the action of the court in appointing the attorney who had been employed by defendant Giardano to act as attorney for defendant Lanigan. At the first trial, which began January 14, 1942, Giardano was represented by Morris Lavine and Lanigan was represented by separate counsel. The jury having disagreed, a mistrial was declared on January 28, 1942, at which time Mr. Cantillon, counsel for Lanigan, informed the court that he was soon to be engaged in a trial which would consume about two months and, with the consent of Lanigan, he was released from further duties as Lanigan's counsel. The court reset the case for trial for March 9, 1942, and instructed Lanigan to be prepared to go to trial on that date with counsel. When the case was called for trial on March 9, 1942, Giardano appeared with his counsel, Mr. Lavine, but Lanigan was without counsel and moved the court for a continuance. This motion was denied. The judge stated that he had heard all the testimony at the previous trial and that there was no conflict in the interests of the two defendants and suggested that Mr. Lavine be appointed to represent Lanigan. Mr. Lavine replied that he felt that there might be a conflict in interests and both defendants objected to the appointment. The record discloses some further discussion, then the following: “The Court: In order to keep the record clear in this matter the motion for continuance made in propria persona by the defendant Lanigan having been denied the court at this time asks the defendant Lanigan to elect between representing himself or having Mr. Lavine represent him.

“Defendant Lanigan: Well, can I consult Mr. Lavine?

“Mr. Lavine: Mr. Lavine objects to being consulted on that motion.

“The Court: All right, let the record show that Mr. Lavine objects to being consulted on the question of the court. It is up to you, Mr. Lanigan.

“Mr. Lavine: On the ground that there will be a conflict in the interests and the two interests are separate and apart.

“The Court: I will request you to make the election at this time, Mr. Lanigan, either represent yourself in the matter or be represented by Mr. Lavine as an officer of the Court.

“Defendant Lanigan: If the court please, if Mr. Lavine represents me it is with my objection. I cannot represent myself.

“The Court: I understand that you are objecting to the order of the court requiring you to elect and whichever course you adopt will be over your objection.

“Defendant Lanigan: Yes.

“The Court: At the order of the court.

“Defendant Lanigan: I am in the position where I have to have an attorney. In other words, I am between the devil and the deep blue sea.

“The Court: Having had some 30 days notice, however, of the fact that the case was going to trial on this date and that you would be required to have counsel at this time.

“Mr. Lanigan: As I stated before I did believe I had counsel and I am not ready to go to trial.

“The Court: That question has been disposed of. I am now asking you to elect as to whether you want to represent yourself or have Mr. Lavine represent you as an officer of the court.

“Defendant Lanigan: I should like an opportunity to consult some counsel as to that.

“The Court: I am afraid we can't give you that opportunity. You have had 30 days in which to prepare for this and I will have to ask you to declare your choice at this time.

“Defendant Lanigan: I am in an awful spot. I don't know what to do. I can't defend myself.

“The Court: You don't feel capable of defending yourself?

“Mr. Lanigan: No. It has always been taught to me that every person in this country has a right to counsel.

“The Court: You are correct about that.

“Defendant Lanigan: This is an important matter in my life. Fortunately we have a higher court.

“The Court: Yes, that is right. That is why I want to keep the record straight in this matter so that if it goes to a higher court the higher court will know just what the proceedings were.

“Defendant Lanigan: I realize that. I am not qualified to answer your question. I can't defend myself and I don't care to have Mr. Lavine defend me.

“The Court: You don't want to represent yourself?

“Defendant Lanigan: No.

“The Court: In that circumstance the court will appoint Mr. Lavine as an officer of the court and the record will show it is over your protest and over the protest of Mr. Lavine.”

A case bearing striking similarity to the case now before us was decided by the Supreme Court of the United States on January 19, 1942, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 467, 86 L.Ed. 680. In the Glasser case several defendants, among them Glasser and Kretske, were charged with conspiracy to defraud the United States. Kretske appeared for trial without counsel and the court appointed William Stewart, who previously had been retained as counsel by Glasser, to act also as counsel for Kretske. No objection was made to this action by Kretske but Glasser objected to the appointment. In reversing the conviction as to Glasser because of the violation of his rights guaranteed by the Sixth Amendment to the Constitution of the United States, the Supreme Court pointed out that Mr. Stewart had failed to object on behalf of Glasser to certain testimony which was admissible as to Kretske but inadmissible as to Glasser. The court then made these important statements: “There is yet another consideration. Glasser wished the benefit of the undivided assistance of counsel of his own choice. We think that such a desire on the part of an accused should be respected. Irrespective of any conflict of interest the additional burden of representing another party may conceivably impair counsel's effectiveness.

“To determine the precise degree of prejudice sustained by Glasser as a result of the court's appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. [Citing cases.] Of equal importance with the duty of the court to see that an accused has the assistance of counsel is its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court. * * *” The application of these sound principles to the present case requires the reversal of the judgments.

The trial in the Glasser case was conducted in a federal court, where the proceedings were governed by the Sixth Amendment to the Constitution of the United States, which provides: “In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence.” The Sixth Amendment to the national Constitution applies only to trials in federal courts. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. But we find in article 1, section 13, of the Constitution of California a provision which safeguards the right to the assistance of counsel in a criminal case in language as potent as the language of the Sixth Amendment, for it is there provided: “In criminal prosecutions, in any court whatever, the party accused shall have the right * * * to appear and defend, in person and with counsel.”

In the Glasser case the co–defendant Kretske consented to the appointment but the record in the present case shows that both defendants vigorously objected to the appointment of Mr. Lavine to act for defendant Lanigan. Moreover, Mr. Lanigan during the proceedings stated that he would like to consult Mr. Lavine on the matter of the appointment but Mr. Lavine objected to being consulted. A little later when the court asked Mr. Lanigan to decide whether he wished to represent himself or be represented by Mr. Lavine, Lanigan stated he wished an opportunity “to consult some counsel as to that” but he was denied this request.

It must be conceded that the question of the guilt of defendants in the present case is a close one, for at the first trial the jury disagreed and at the second trial, when Mr. Lavine represented both defendants, a verdict was not reached until the jurors had deliberated for more than two days. Respondent argues that the record fails to show that either defendant was prejudiced by the action of the court. But as pointed out in the Glasser case, it is unnecessary to determine the precise degree of prejudice sustained. Defendant Giardano was deprived of the “undivided assistance of counsel” and defendant Lanigan was represented under order of the court by an attorney with whom he had had no opportunity to confer. When the time came for defendants to present their defense counsel had to decide whether to advise each of them to testify in his own behalf. This was an important decision to make, for under the provisions of the Constitution of California, art. 1, § 13, as amended in 1934, the failure of a defendant to explain or deny by his testimony any evidence in the case may be considered by the jury. It frequently occurs in criminal cases that circumstances which make it advisable for one defendant to take the witness stand are not present when consideration is given to the question of offering the testimony of other defendants. One of the defendants might be vulnerable to impeaching questions but the other defendant entirely free from this difficulty. In such a situation it would probably be advisable for the defendant not vulnerable to impeachment to take the witness stand, but if he should do so and his co–defendant should fail to testify, this circumstance doubtless would weigh heavily against the co–defendant with the jury. Each of the defendants was entitled to have questions of this nature decided independently of the interests of the other defendant. The trial court erred in forcing defendant Giardano to share the attention and efforts of his attorney with his co–defendant. The court also erred in causing defendant Lanigan to be represented by an attorney who did not wish to represent him, who did not have opportunity to consult with him and arrange for his defense, and whom he did not wish to have appointed.

Defendants contend that the action should be dismissed without another trial, claiming that, not having been brought to trial within the time prescribed by section 1382 of the Penal Code, they were deprived of their constitutional right to a speedy trial; and that, because of the substitution of an alternate juror during the deliberations of the jury another trial would be in violation of their constitutional right not to be put in jeopardy twice for the same offense.

The indictment was returned on September 3, 1941, and the trial was set for the latter part of October, 1941. On October 17, 1941, defendants requested that the trial be reset for November 28, 1941. Both defendants were informed by the court that they were entitled to go to trial within sixty days from the date of the filing of the indictment but both defendants expressly waived this right. On November 7, 1941, the case was placed upon the calendar at the request of the prosecution and defendants for the purpose of setting the case for trial for a date later than November 27, 1941. At that time the prosecutor stated to the court that defendants wished to take depositions in St. Louis, Missouri, and Reno, Nevada, and that the prosecution would bring witnesses from eastern points, some of whom were scheduled to appear as witnesses in the federal court on January 20, 1942, in a case in which defendants were charged with transporting from one state to another the guns used in the commission of the robbery charged in the instant case. When the court informed counsel that the calendar was filled for December both defendants stated that they would be ready on November 27, 1941, and objected to a continuance. The court then set the case for trial for January 9, 1942. Defendant Giardano obtained on December 27, 1941, an order for the issuance of a commission to take the depositions of witnesses residing in St. Louis, Missouri, and on January 5, 1942, obtained the issuance of a commission to take the depositions of additional witnesses residing in St. Louis. Early in January 1, 1942, defendant Lanigan obtained an order for the issuance of a commission to take the depositions of witnesses residing in Reno, Nevada. On January 9, 1942, when the case was called for trial defendant Lanigan asked that the case be continued until January 14, 1942, basing his motion upon the ground that his counsel was engaged in another trial and on the further ground that depositions which he was taking had not been filed with the court. This motion was granted.

Section 1382 of the Penal Code provides that the prosecution must be dismissed unless the action is brought to trial within sixty days from the filing of the indictment unless good cause to the contrary be shown. As we have heretofore shown, defendants, having given their consent, were not in position to complain of the court's action in setting the case for trial for November 27, 1941. It clearly appears from the record that all parties at the time of their appearance in court on November 7, 1941, were in favor of a trial later than November 27, 1941. When, however, they discovered that the court's calendar was filled for December and that the prosecutor was meeting with certain difficulties in getting to trial, they concluded that they could be ready on November 27, 1941, and wished the trial to remain set for that date. What constitutes “good cause” for the continuance of a trial rests largely within the discretion of the trial court. We find no abuse of discretion here, for the continuance of the trial date under the circumstances shown cannot be considered unreasonable. The crowded condition of the court's calendar furnished “good cause,” as required by the code section, to justify the action of the court in setting the case for January 9, 1942. Murphy v. Superior Court, 53 Cal.App. 6, 200 P. 483. The continuance of five days ordered on January 9, 1942, was requested by defendant Lanigan. This continuance did not cause prejudice to defendant Giardano.

At the commencement of the second trial Cliff W. Rolff was sworn as an alternate juror. On the second day after the jury commenced its deliberations the court informed counsel that it had been advised by the bailiff that one of the jurors, Mrs. Thelma Mercier, had become ill. It was then stipulated by counsel that the court could “talk to the juror in place of calling a doctor to determine whether or not her physical condition is such as to warrant her proceeding further in her deliberations as a juror.” The defense, however, reserved objections to the substitution of an alternate juror. Thereafter the court found that Mrs. Mercier was not able to continue as a juror and ordered the substitution of the alternate juror, Mr. Rolff. In view of the stipulation made, defendants are not in position to argue that the court did not act properly in determining that Mrs. Mercier was not physically able to continue as a juror. Without detailing the steps taken by the court in reaching this conclusion, it is appropriate to state that the court's handling of this matter appears to have been entirely proper. Defendants contend, however, that they were deprived of their constitutional rights by the substitution of the alternate juror. This point was raised in People v. Peete, 54 Cal.App. 333, 202 P. 51, where the question was exhaustively discussed and decided adversely to the contentions now made by defendants. After the decision in the Peete case section 1089 of the Penal Code was amended to provide that a substitution of an alternate juror may be made “after the final submission of the case to the jury.” This amendment came before reviewing courts in People v. Von Badenthal, 8 Cal.App.2d 404, 48 P.2d 82, and in People v. Love, 21 Cal.App.2d 623, 70 P.2d 202, where it was held that the provision for the substitution of a juror after the final submission of the case does not violate the constitutional rights of a defendant in a criminal action. We are in accord with the views expressed in the decisions in these two cases.

The judgments and the order denying the motion for a new trial are reversed and a new trial is ordered.

I dissent. The principal contention made by appellants is that their constitutional rights were violated by the court's order appointing Attorney Lavine, counsel for Giardano, to act as counsel for the latter's co–defendant Lanigan. Such order they contend violated due process of law guaranteed by the 14th Amendment to the federal Constitution as well as by article I, section 13 of the state Constitution.

Enlarging upon such assignment appellants contend that Giardano was deprived of the undivided assistance of his own counsel and that Lanigan was required to accept the assistance of an attorney with whom he had had no opportunity to confer. The prevailing opinion proceeds to illustrate the possible disadvantages to be suffered by either of the defendants by envisaging a situation where one might be advised not to take the witness stand because he was vulnerable to impeachment, and it is argued that a failure of either to do so would, if one lawyer appeared for both, militate against him who acted upon such advice. I perceive no additional gravity to be attached to the silence of one because they both had the same counsel. If Lanigan had been represented by an Erskine or a Webster, the same deduction could have been made and the same argument might with equal propriety have been urged before the jury had he posed in smug complacency behind the counsel table after his co–defendant had testified despite the fact.

The assignment of lack of due processes brings us directly to the question as to whether due process was violated in the making of the order or whether any unfairness resulted to either defendant in the subsequent proceedings. It will be borne in mind that the appellants were indicted jointly; that they were apprehended together; that they had recently been tried jointly as required by law, § 1098, Pen.Code, before the same judge who made the order complained of; and to all appearances they collaborated at all times.

We first consider the effect of the order upon the case of Lanigan only. When a mistrial was ordered on the 28th day of January, Lanigan was advised by the court that, since the counsel who had represented him in the first trial had been released from further obligation to represent him, he should procure other counsel and be prepared for trial on the ninth day of March. Inasmuch as one trial had already been completed the issues were clearly defined and the available evidence was known to the court. Such knowledge as Lanigan might have gained by the first trial was available to him and to such counsel as he might retain for the second trial. But he made no effort to obtain an attorney. He permitted more than five weeks to elapse only to appear on the day fixed and declare his need for counsel and his unwillingness to proceed to trial without a lawyer. His inaction during those five weeks prior to March 9th was tantamount to a declaration by him that he required no counsel to represent him or that he waived the right to be represented. Having gone through a trial represented by a clever lawyer, he was awake to the advantages of legal assistance. He was in a manner schooled in the business of defending against a criminal accusation. His decision not to engage counsel was therefore one consciously and knowingly reached. He was in no position to claim his inability to procure counsel. The public defender's office was in the very building which housed appellants during the five weeks' period. A simple request to that official by one accused of crime and in impecunious circumstances brings instantly efficient counsel. Moreover, had the public defender rejected the opportunity to serve Lanigan, the very judge who had made the order for him to obtain counsel, sat in the same building. A suggestion to the judge of Lanigan's predicament would promptly have brought to his side an advocate for his cause, even though he were without money and the public defender had refused to serve. Courts are not required to adjourn or mark time to accommodate prisoners who by their own choice make no attempt to be prepared for trial during a period of time long enough for such purpose. People v. Dowell, 204 Cal. 109, 113, 266 P. 807.

The refusal of a party accused of crime to obtain counsel to represent him at the trial will not avail him in his attempts to procure further delays of the trial. Therefore, by his own behavior Lanigan is entitled to no relief from his present predicament for, under the circumstances disclosed by the record, astute counsel encumbered with one of two defendants jointly accused was better than no lawyer at all.

The contention that the constitutional rights of both defendants were violated by the court's appointment of Lavine to serve Lanigan is equally without merit. It goes without saying that innumerable situations might arise where such an order would operate an injustice, but the constitutionality of the order in question must be adjudged in the light of the circumstances as they existed and as they appeared to the court at the time. It is not my view that the accused should ever be denied a constitutional right merely because the evidence in the case clearly indicates his guilt. Neither should a deaf ear be turned to his appeal based upon such denial. On the contrary, every right vouchsafed to a person accused of crime, by both the state and the federal Constitutions, should be held inviolate. But whether such rights have been disregarded must be determined by the facts in each case as it arises. No formula has been derived whereby constitutional guaranties can be vouchsafed in all cases without running the risk of defeating justice.

Giardano announced ready for trial. He had his attorney. Lanigan had none and demanded a continuance on that account. Although there was no duty incumbent upon the court to delay the trial upon Lanigan's demand, rather than for Lanigan to go through the trial without the aid of any counsel, the court determined that it was better to appoint Lavine to conduct the trial on behalf of Lanigan as well. Lavine objected on behalf of Giardano on the ground that there might be a conflict of the interests of the parties. On this appeal both defendants claim to have been prejudiced by the court's action, and both demand a reversal by reason of the court's appointment of Lavine to represent Lanigan during the trial. But the situation as it existed at the time of the court's order confutes the claim that either defendant suffered any prejudice. The court knew substantially all of the case about to be presented on behalf of both the People and the defendants; it knew that the defense of each of the defendants was an alibi and that very few new questions, if any, could arise which had not already been considered and determined on the former trial. Neither had denied the corpus delicti.

The court knew that beyond a question the robbery had been committed; knew that on the former trial the witnesses on behalf of the People definitely identified defendants as the two robbers who committed the crime named in the indictment; knew that on the twenty–second day following the commission of the crime defendants were arrested in the State of Illinois driving a Chrysler automobile and that at the time Lanigan was its driver; that he had a loaded revolver under his belt which was taken from him by the police; and that on the seat beside him lay a second revolver; knew that they were accompanied by another party who was armed with a .45 caliber army pistol. The court knew that it had been established that in the same automobile were found license plates issued by the states of Nevada, Kansas and Illinois; knew that the arresting officers found cartridges and shotgun shells in the same car, and that at the time of the arrest both appellants told the officers that they had been on a visit to Los Angeles. Also the court had in mind that the defendants had each pleaded an alibi; that one undertook to prove that he was in the city of St. Louis on the day of the crime, while the other undertook to prove that he was in the State of Nevada on the same day.

If the court had foreseen that any possible conflict of interest between the two defendants might arise in the course of the trial it would clearly have been its duty to refrain from casting upon Giardano's counsel the burden of representing Lanigan. And had any showing been made on this appeal that the court committed an arbitrary act, or an error arising from a conflict of interest of the defendants, resulting in a prejudice to either defendant, we would have a situation clearly different from that which is before us.

In view of the fact that practically the whole of the testimony about to be introduced at the trial on the ninth day of March had been embalmed at the first trial, there was little of original effort that was possible of performance by any counsel appearing for Lanigan or Giardano at the second trial, and very little variation of that record, if any, was possible to be made on behalf of either. The court was justified in concluding that if the testimony of the alibi witnesses presented by the defendants should raise a reasonable doubt in the minds of the jurors as to the presence of the defendants at the scene of the crime on the 18th day of June, 1941, then the defense was simplified; and that, if, in spite of the testimony of such witnesses the jury should believe the identifying witnesses beyond a reasonable doubt, the People's case was simplified.

In this state of the record, the opportunity arose for the court to exercise its discretion as to whether it should proceed to trial with Lanigan appearing for himself, or to have the only available lawyer, who is schooled in the art of trials, to interpose appropriate objections and pleas on his behalf, and whether or not the appointment of Giardano's lawyer to the office of Lanigan's counsel would be a deprivation of the rights of both or of either of them. Where such a situation arises at the threshold of a trial, the court should not be so “strait–jacketed” by such a construction of the Fourteenth Amendment (Betts v. Brady, June 1, 1942, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595) as to be shorn of all discretion and freedom of judgment as is necessary to a wise and judicious conduct of such trials.

The defendants were neither youthful nor ignorant. Not only had they recently completed a trial of the same identical charge, but by the evidence of their very acts in driving through the various states of the Union in an automobile with generous supplies of arms and ammunition in their possession showed an aggressiveness, if not a brilliance, that would serve them in summoning to their aid such proof as might serve their defenses or in making such disclosures to their attorney as would prevent a disastrous overturn of their proof.

It was not for the trial court to presume that Mr. Lavine would neglect the interest of either defendant. It must now be presumed that, had a crucial moment arrived in the progress of the trial, when Lanigan's interest conflicted with Giardano's, the attorney would have appealed to the court. These appellants are entitled to their constitutional rights, but Lanigan may not disrupt the even and orderly administration of justice by his own inertia and Giardano may not avoid a conviction merely because his lawyer felt that a conflict of his interests with those of Lanigan might arise. Clearly no conflict did arise, hence, no prejudice did, in fact occur. While we shall insist upon the vigilant watchfulness of the courts to see that the rights of accused are safeguarded, they are to bear in mind that justice is due alike to the accuser as well as to the accused. Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575. They are not to be strangled with terse and pungent phrases which have been evolved from the white–heated brain of an industrious jurist following its impact with a record reeking with injustice to the accused. It is the duty of the courts to apply the principles and doctrines arising from the application of the constitutional guaranties to mete out justice to all; not to do injustice to the accuser and afford a picnic for the accused.

The Glasser case, which is relied upon in the prevailing opinion, should not be our guide in the situation presented. Before the appointment of Glasser's attorney to defend Kretske, the lawyer presented his own affidavit in which he pointed out certain inconsistencies in the two defenses. When asked by the court on that score Mr. Lavine could say only: “I feel that there may be; there may be other matters which come up,” etc. Glasser personally objected to the appointment of his attorney to serve Kretske; Giardano did not. On his appeal, Glasser claimed the insufficiency of the evidence to support the verdict; no such claim is made by either of these appellants. Glasser urged that certain testimony inadmissible as to himself was received without objection so as to avoid prejudice to Kretske. No such testimony is mentioned by either of the defendants herein.

The judgment should be affirmed.

W. J. WOOD, Justice.

McCOMB, J., concurred.