Jarrell v. Eastern Airlines, Inc.
Jarrell v. Eastern Airlines, Inc.
Opinion of the Court
Defendant appeals his convictions for bank robbery, bank larceny and assault during a robbery.
Defendant first argues that his absence from a pre-trial hearing constituted a violation of his right to be present at every stage of the trial. The record reveals that defendant’s two attorneys, on the record, at the commencement of the hearing, informed the court that they had advised the defendant not to attend the hearing since the issue of identification was to be raised, and since potential identifying witnesses would be present. After questioning defendant’s attorneys, the trial court determined that defendant had understood his rights and indeed waived his right to be present. Since the filing of this appeal, defendant has sworn, by affidavit, that he did “not recall speaking to either [of his attorneys] until after the suppression hearing was completed . . . .”
The statements by defendant’s attorneys were made before the hearing began and indicate a tactical decision to prevent the defendant’s identification by certain witnesses before trial. Defendant does not directly deny that he had a conversation with his attorneys during which he waived his rights; he merely says that he “[did] not recall” such. Although the better practice would be to bring the defendant before the court and place his waiver on the record before the hearing began, we hold that the record here sufficiently indicates that a waiver indeed occurred.
Second, defendant contends that the court’s failure to grant his request to personally make his closing argument violated his right to act as his own counsel, as expressed in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This court has held that it is not error to deny the defendant’s motion to appear as co-counsel. E. g., United States v. Lang, 527 F.2d 1264, 1265 (4th Cir. 1975). However, the defendant argues that this rule does not apply since he desired to dismiss his attorneys and assume sole responsibility for his defense. This being so, we nevertheless hold that a defendant does not have an absolute right to dismiss counsel and conduct his own defense after the trial has commenced.
Although Faretta unquestionably established a defendant’s Sixth Amendment right of self-representation, the idea was not new to the federal courts. Under 28 U.S.C. § 1654,
Finally, as the parties agree, defendant’s sentence must be corrected in two aspects. First, the commitment order erroneously indicated that there were aiding and abetting convictions. Admittedly, these were clerical errors, and are vacated. Second, in light of Walters v. Harris, 460 F.2d 988, 994 (4th Cir. 1972), the bank larceny charge and the assault charge are vacated, leaving defendant with a twenty-year sentence for bank robbery. We see no need to remand for re-sentencing. United States v. Amos, 566 F.2d 899, 901 (4th Cir. 1977).
AFFIRMED in part; VACATED in part.
. The commitment order indicated that defendant had been convicted of aiding and abetting as to each offense. Such was not the case, and this point is dealt with below.
. 28 U.S.C. § 1654 provides:
In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.
. In Sapienza, the second circuit expressly held that Faretta in no way diminished that circuit’s rule requiring a defendant to raise the right of self-representation before trial, or suffer diminution or loss of the right. See United States v. Denno, supra.
Reference
- Full Case Name
- Sandra JARRELL and Catherine Moore Norton v. EASTERN AIRLINES, INC., Alexandria, Virginia and Eastern Airlines, Inc., Miami, Florida
- Cited By
- 2 cases
- Status
- Published