UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 97-60277
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee
VERSUS
ANTHONY KIZZEE,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Mississippi
August 10, 1998
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PARKER, Circuit Judge:
I.
FACTS & PROCEDURAL HISTORY
Anthony Kizzee was arrested in California on various drug
offenses and was transferred to the Southern District of
Mississippi for trial where the offenses charged were committed.
At his initial appearance on September 13, 1996, Kizzee stated that
his attorney, Milton Grimes of California, was unable to be present
on that date and therefore he was not arraigned. Nevertheless, by
September 17, 1996, Kizzee requested court-appointed counsel and
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signed the accompanying financial affidavit. September 18, the
following day, the district court appointed D. Neil Harris to
represent Kizzee. Harris moved to continue the original trial date
of October 7, 1996, and the district court granted the motion,
scheduling trial for February 3, 1997. By January 2, 1997,
Kizzee’s family had retained Darwin M. Maples to represent Kizzee.
On January 8, 1997, Harris moved to withdraw as Kizzee’s attorney
at Kizzee’s request. On January 10, 1997, Maples requested that
the district court substitute him as retained counsel for Kizzee.
The district court granted the motion.
On January 24, the district court denied Kizzee’s pro se
motion to dismiss his indictment, determining that Kizzee had not
been denied his right to a speedy trial. At that hearing, Kizzee
informed the court that his family was trying to hire counsel to
replace Maples and that he did not want Maples as his attorney.
The district court asked Kizzee whether he wished to proceed
without counsel, and Kizzee answered that he did not. The district
court informed Kizzee that if he retained other counsel, the new
attorney would have to be ready to go to trial on February 3.
Kizzee’s trial proceeded on February 3, 1997, with Maples as
defense counsel. Before the jury was selected, Kizzee moved to
dismiss Maples as his counsel. Kizzee stated that Maples did not
file motions that Kizzee wished to present to the district court.
Kizzee argued again that he was denied a speedy trial. He also
moved for a change of venue and stated that he had been denied the
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opportunity to review all of the discovery materials. Kizzee
stated that Maples could not have prepared sufficiently for trial
in the time that he had prior to trial. Kizzee also stated that he
was not being afforded a fair trial. Whereupon, the district court
informed Kizzee that it had previously ruled on the speedy-trial
motion. The court then overruled all of Kizzee’s motions after
Maples assured the court that he had received all the discovery
materials from Kizzee’s previous attorney and that he had gone over
the materials with Kizzee.
After the trial had proceeded for two days, Maples requested
permission to make a statement on the record. Maples stated that
he had tried to discuss the case with Kizzee before the trial
began, but Kizzee refused to talk to him. Maples stated that he
did manage to go over the discovery materials with Kizzee and that
he discussed with Kizzee the information that had been elicited by
the Government at trial. Maples stated that “[t]his has been no
surprise to me or the defendant and I would say that I explained to
him about the witnesses, most of them that were testifying here. .
. . But the cooperation has been very, very limited and very, very
unusual.”
Kizzee stated that Maples had not conducted sufficient cross-
examination of the witnesses and that Maples had been “hiding
behind this briefcase over here, not taking no notes, not doing
nothing, not asking questions. He is not even trying to defend me.
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I don’t think he’s in my best interest. . . . He’s not working with
me at all.”
Following the Government’s direct examination of its next
witness, Kizzee requested permission to ask questions of the
witness. Kizzee asked, “Don’t I have the right to defend myself?”
The district court explained that Kizzee could question the
witnesses but cautioned Kizzee that he could not testify without
taking the stand. The court stated that it would help Kizzee to
stay “within the rules.” Kizzee responded, “Okay, But I want -- at
this point start to defend myself better.” From that point, Kizzee
conducted his own defense, cross-examining the witnesses himself.
The district court agreed to recall witnesses previously
examined by the Government in response to Kizzee’s complaints about
Maples’ performance during the trial so that Kizzee could question
them.1 The district court allowed Kizzee wide latitude in
questioning the witnesses, and Kizzee cross-examined each witness
presented by the Government on the third day of trial. The
district court instructed Maples to assist Kizzee as needed.
Following the presentation of the Government’s case, Kizzee
complained that Maples was not assisting him. Kizzee again stated
that during Maples’ cross-examination, Maples did not ask certain
questions that Kizzee had requested Maples to ask. Kizzee also
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The district court did not recall a chemist who had
returned to California because the parties had stipulated that
the substance seized was cocaine.
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requested additional time to review some of the discovery
materials.
Maples stated that during the first two days of trial, he had
cross-examined witnesses after conferring with Kizzee about what to
ask on cross-examination. The district court denied Kizzee’s
motion for additional time to review the discovery materials after
Maples stated that he had reviewed the materials with Kizzee “page
by page,” despite Kizzee’s refusal, at times, to communicate with
Maples.
Kizzee conducted direct examination of five re-called
government witnesses on the last day of trial, and Kizzee delivered
the closing argument. After the jury returned guilty verdicts, the
district court informed Kizzee that he should confer with Maples
concerning sentencing issues, and Kizzee agreed to do so.
Kizzee contends on appeal that the district court erred by not
post-poning his trial long enough for Maples to prepare an adequate
defense, and that the district court erred when it allowed the
trial to continue after the proceedings began to deteriorate.
Further, Kizzee contends that at trial he was forced to choose
between ineffective trial counsel and self-representation and that
this situation cannot be viewed at a voluntary waiver of the Sixth
Amendment right to counsel. Kizzee therefore contends that he was
denied effective assistance of counsel, and that the district
court’s failure to continue the trial resulted in a fundamentally
unfair trial.
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II.
LAW & ANALYSIS
A.
Continuance
“[T]rial judges have broad discretion in deciding whether to
grant continuances.” United States v. Correa-Ventura, 6 F.3d 1070,
1074 (5th Cir. 1993). Because Kizzee did not move for a
continuance in the district court, his assertion is reviewed for
plain error only. See United States v. Jackson, 50 F.3d 1335, 1340
n.6 (5th Cir. 1995) (issue which is not raised in district court is
reviewed for plain error). Under Fed. R. Crim. P. 52(b), this
court may correct forfeited errors only when the appellant shows
the following factors: (1) there is an error, (2) that is clear or
obvious, and (3) that affects his substantial rights. United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc),
citing United States v. Olano, 507 U.S. 725, 730-36 (1993). If
these factors are established, the decision to correct the
forfeited error is within the sound discretion of the court, and
the court will not exercise that discretion unless the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. Olano, 507 U.S. at 736. To prevail in an
assertion that the court should have granted a continuance on
appeal, the appellant must demonstrate “serious prejudice.”
Correa-Ventura, 6 F.3d at 1074.
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i.
Before Trial
Kizzee’s assertion that the district court should have ordered
a continuance before trial began because counsel could not prepare
sufficiently for trial in thirteen days is disingenuous. Harris,
Kizzee’s appointed counsel, indicated that Kizzee informed him on
December 23, 1996, that Kizzee had retained Maples. Kizzee himself
testified that Maples was retained by his family on January 2,
1997. On January 10, 1997, Maples filed a motion to substitute
counsel. Trial was scheduled for February 3. Kizzee suggests that
this court should presume prejudice because counsel was retained a
short time prior to trial. This court has rejected that claim when
counsel had only seven days to prepare. See Jackson, 50 F.3d at
1340 n.6.
Kizzee’s assertions that the district court should have
continued the trial because it was aware, and Maples informed the
court, that he was unprepared for trial are also without merit.
Maples told the district court that he had received the discovery
materials timely and that he had reviewed the materials with
Kizzee. Although Maples asserted that he did not have any
witnesses to present in Kizzee’s defense, Maples informed the court
that he tried to get Kizzee to talk to him about the witnesses and
Kizzee refused to tell Maples anything about any witnesses. Maples
stated that none of the testimony elicited at trial came as a
surprise and that he had reviewed the exhibits with Kizzee.
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Finally, Kizzee’s contention that the district court should
have granted a continuance prior to trial to protect his interests
is refuted by Kizzee’s own pretrial conduct. At the hearing on
January 24, 1997, and on the day trial began, Kizzee argued for
dismissal on the grounds that he did not receive a speedy trial.
At no time did Kizzee seek a continuance. Instead, he continued to
press the speedy-trial issue. The district court did not err by
failing sua sponte to continue the February 3, 1997, trial date.
ii.
During Trial
Kizzee also contends that the district court should have
stopped the trial proceedings once Kizzee assumed his own defense
and the proceedings deteriorated to the point that Kizzee could not
obtain a fair trial. Kizzee notes specific record passages in
support of his argument. The Government seeks to adopt the record
references cited in Kizzee’s brief, asserting that these references
demonstrate the district court’s attempt to safeguard Kizzee’s
rights and to provide Kizzee with a fair trial.
Inspection of each cited reference indicates that the
Government’s characterization of these passages is accurate. The
district court tried to help Kizzee ask questions that would elicit
the information he was seeking. The district court protected
Kizzee’s appellate rights by moving for a judgment of acquittal at
the close of the Government’s case and at the close of the trial.
The district court would not allow Kizzee to ask questions about
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inadmissible evidence and would not allow him to testify during the
course of his examinations of the witnesses and in closing
argument. The district court would not allow Kizzee to ask the
same question repeatedly or to continue a line of questioning
following a sustained objection.
Kizzee’s characterization of the district court’s conduct is
inaccurate. Kizzee’s example of the court engaging in dialogue
with a witness was actually an instance in which the court
instructed the witness not to ask questions of Kizzee. Kizzee’s
example of the court answering for the witness was an instance in
which the prosecutor was conducting the examination.
Kizzee’s contention that the district court conducted the
trial improperly, abused its discretion, and deprived him of a fair
trial is a disparaging mischaracterization of the events recorded
in the trial transcript. The conduct of trial is a matter within
the sound discretion of the district court. United States v.
Chavis, 772 F.2d 100, 108 (5th Cir. 1985). The district court has
the authority to question a witness and clarify facts that are
presented. United States v. Weeks, 919 F.2d 248, 253 (5th Cir.
1990). As the Government noted, the record passages identified by
Kizzee as instances of improper conduct by the district court
actually demonstrate the district court’s attempt to maintain
proper trial procedure, while attempting to assist Kizzee in his
own defense. A review of the entire trial transcript demonstrates
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that the district court did not deprive Kizzee of a fundamentally
fair trial.
B.
Right to Counsel
Kizzee, like all other felony defendants, had a constitutional
right to effective assistance of counsel at his trial. Tucker v.
Day, 969 F.2d 155, 159 (5th Cir. 1992); Strickland v. Washington,
466 U.S. 668, 686, 104 S. Ct. 2052, 2063, 80 L. Ed. 2d 674 (1984).
By the same token, Kizzee had a constitutional right to represent
himself. The choice to represent one’s self is honored by the
Constitution, provided that it is made knowingly and voluntarily.
United States v. Martin, 790 F.2d 1215, 1218 (5th Cir. 1986),
citing McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S. Ct. 944, 949,
79 L. Ed. 2d 122 (1984). There is a presumption against finding
waiver of the right to counsel, founded in our realization of the
inherent treachery of that course. Burton v. Collins, 937 F. 2d
131, 133 (5th Cir. 1991)( A defendant’s assertion of the right to
self-representation must be “clear and unequivocal”), citing
Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45
L. Ed. 2d 562 (1975). Nevertheless, that election, no matter how
perilous, must be honored if clearly and unequivocally made by a
defendant with his eyes open. Faretta, supra. If Kizzee properly
waived his right to counsel, then no denial of that right has
occurred and Kizzee was not denied a fair trial.
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We will accept, for the sake of argument, Appellant’s
proposition that his waiver of the right to counsel, if any, was
not voluntary, because he chose self-representation over
ineffective assistance of counsel. However, that proposition is
predicated on the notion that Maples’ representation of Kizzee
amounted to ineffective assistance of counsel.
Generally, this Court declines to review Sixth Amendment
claims of ineffective assistance of counsel on direct appeal.
United States v. Gibson, 55 F.3d 173, 179 (5th Cir. 1995). This
Court has “undertaken to resolve claims of inadequate
representation on direct appeal only in rare cases where the record
allowed [the court] to evaluate fairly the merits of the claim.”
United States v. Higdon, 832 F.2d 312, 314 (5th Cir. 1987).
Kizzee contends that the record is sufficiently developed for
this Court to address his ineffective-assistance claims. The
Government contends that the issue was not presented to the trial
court and that this Court should not address Kizzee’s claims that
Maples’ representation was constitutionally deficient.
Kizzee did express his dissatisfaction with Maples before and
during trial, and the district court did entertain some discussion
of the allegations of ineffectiveness on the record. However,
neither Maples nor Kizzee were sworn and subjected to a hearing on
the allegations of ineffective assistance of counsel. Also, the
district court did not make any factual findings regarding the
allegations of ineffective assistance. If this Court were to
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analyze these issues on the present record, we would have to
speculate as to the reasons for Maples’ alleged acts and omissions.
See United States v. Thomas, 12 F.3d 1350, 1368 (5th Cir. 1994).
Kizzee’s case is not one in which this Court should endeavor
to consider ineffective assistance of counsel claims on direct
appeal. Therefore, we decline to consider Kizzee’s claims of
ineffective assistance of counsel without prejudice to Kizzee’s
right to raise that issue in a § 2255 motion. See United States v.
Price, 95 F.3d 364, 369 (5th Cir. 1996).
III.
CONCLUSION
The district court did not err by failing sua sponte to
continue the February 3, 1997, trial date, as retained counsel had
been on the job since January 2, 1997, at the latest.
The district court did not err by failing to stop the trial
once Kizzee had taken over his own representation. The record
reveals that the district court did all it could to assist Kizzee,
and that Kizzee got a fair trial.
Finally, this Court cannot address Kizzee’s contention that
his waiver of the right to counsel was involuntary because he was
forced to choose between ineffective assistance of counsel and
self-representation. The record before us is not developed well
enough on the point for us to determine the adequacy of Maples’
representation of Kizzee. We therefore must decline to review this
point of error, preserving Kizzee’s right to present this matter to
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the district court via § 2255. Therefore we affirm Kizzee’s
conviction.
AFFIRMED.
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