Ben Lee BROWN, Appellant, v. Walter E. CRAVEN, Appellee.
No. 24323.
United States Court of Appeals, Ninth Circuit.
April 16, 1970.
Rehearing Denied May 13, 1970.
The changes here did not destroy identity. The employment functions of the workers in the existing unit remained the same. The employees remained the same. Only Zayre‘s organizational policies changed.
Some tag ends remain. Under a strictly logical application of the Board‘s unit determination it would appear that the unit would be “direct” employees, and any non-discriminatory changes in departmental operation from owner to licensee will operate to exclude from the unit the persons employed by such licensee. But such logic would produce a result that would be inconsistent with the policies of the Act. First, the unilateral act of an employer should not deprive employees of their right to bargaining representation. Secondly, the transfer of employee functions to licensee or other subcontractors is normally a bargainable issue. See Fibreboard Paper Products Co. v. NLRB, 1964, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d 233; NLRB v. Rockwell-Standard Corp., 6 Cir., 1969, 410 F.2d 953. And, although we do not decide whether bargaining was required here, no such bargaining took place.
Thus employees transferred from a direct-employee department to a licensee department remain in the unit. Of course, whenever during the life of the certification Zayre shifts from a licensee operation to a direct owner operation the workers automatically become members of the unit. Zayre must bargain with them through the Union. The same is true as to the employees of Zayre‘s two wholly controlled subsidiaries, Zayre of Florida and Housewares, Inc. They constitute direct employees of Zayre‘s and are within the unit. NLRB v. M. P. Building Corp., 5 Cir., 1969, 411 F.2d 567.
We do not rule out the possibility that in some succession cases the successor will so modify the prior unit that its identity will be destroyed, with the result of the transferee not being bound as a successor. But this is not such a case.
Enforced.
Robert J. Polis, Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen., Los Angeles, Cal., for appellee.
Before TUTTLE,* ELY, and KILKENNY, Circuit Judges.
ELY, Circuit Judge:
Brown is a California state prisoner, confined as a result of his conviction of the crime of second degree murder. After exhausting available state court remedies, he filed a petition for writ of habeas corpus in the court below. The District Court called for and received a written response to the petition and thereafter denied the petition without having conducted an evidentiary hearing. Brown appeals.
We have concluded that the judgment must be reversed. Brown‘s petition set forth, in fine detail, numerous allegations of infringement of state and federal rights, including rights guaranteed by the federal constitution. In the light of our disposition of the cause, no essential purpose would be served by our review of all of the allegations, or of the record of the state court proceedings, in detail. Briefly summarized, the facts giving rise to the state court prosecution are as follows: Brown, with his fourteen year old son, shared living quarters with a woman who was the victim of the homicide. Brown and the woman apparently lived together as husband and wife. Before returning to their dwelling on the evening of the homicide, Brown and the victim had wandered in the company of each other. There are indications in the record that Brown drank intoxicants heavily during that period, but no direct evidence to that effect was presented
When investigating police officers reached the home, one of them immediately began to question Brown without having advised Brown, in any way, of his rights, including his right to remain silent. During this initial interrogation, Brown, in response to the officer‘s question, stated that “he had slapped [the victim] and that she had fallen off a chair or bench and onto the floor in the dressing room area.” The officer then advised Brown of certain of his rights, including the “right to have an attorney represent him during all the stages of the investigation” and the “right to remain silent or say nothing * * *.” Thereafter, and over the next two or three days, Brown made numerous incriminating statements, including the statement that he and the victim “kept arguing and fussing from the time we got home until four or five hours later * * *” “over her use of pills * * *” and that he “picked up the chair [and] I hit her with it.” During the interrogation, Brown also told of having gone to bed with the victim, of having been awakened by her when the bed caught fire from the cigarette, and of having extinguished the fire.
When, during his state court trial, Brown‘s appointed attorney objected to the police testimony as to the incriminating statements claimed to have been made by Brown on the ground, inter alia, that a proper foundation for their admissibility had not been established, the trial judge overruled the objection. His ruling was apparently based on one of the police officer‘s answer of “Yes” to the prosecuting attorney‘s suggestive question “And the statements that the defendant made, did they at least appear to be voluntary?” Notwithstanding, the state court record as a whole makes it manifest that the state trial court did not comply with the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). In Javor v. United States, 403 F.2d 507, at 509 (9th Cir.1968), our court wrote:
“Under Jackson v. Denno * * * a defendant who objects to the admission of his confession is entitled to have the issue of voluntariness determined by a tribunal other than the convicting jury (378 U.S. at 391, 84 S.Ct. 1774, note 19); in this case, by the trial judge. The trial judge‘s resolution of the issue is ‘preliminary’ in the sense that it precedes the submission of the same issue to the jury, but it is in no sense a partial, limited or tentative determination. On the contrary, it is the primary determination of the issue of voluntariness; it is the determination required by the Constitution. It is the only determination of the issue in jurisdictions following the ‘orthodox’ rule. 378 U.S. at 378, 84 S.Ct. at 1774. The trial judge‘s determination must therefore involve a full resolution of the constitutional issue ‘including the resolution of disputed facts upon which the voluntariness issue may depend.’ 378 U.S. at 391, 84 S.Ct. at 1788.
“The trial court‘s obligation is not satisfied by a determination that the government has made out a prima facie case that the confession was voluntary, leaving it to the jury to determine on conflicting evidence whether the confession was freely and volun-
tarily made; it is ‘for the trial judge to first decide these conflicts and discrepancies.’ See also Jackson v. Denno, 378 U.S. at 377-378, 84 S.Ct. 1774; Burns v. Beto, 371 F.2d 598, 603-604 (5th Cir.1966). Cf. Mullins v. United States, 382 F.2d 258, 261-262 (4th Cir.1967); Fisher v. United States, 382 F.2d 31, 34 (5th Cir.1967); Kear v. United States, 369 F.2d 78, 84 (9th Cir.1966); Butterwood v. United States, 365 F.2d 380 (10th Cir.1966); United States v. Inman, 352 F.2d 954, 956 (4th Cir.1965). “And it is also settled that although express findings are not required, the fact that the trial court has made such a full and independent determination of the voluntariness of the confession must be ascertainable from the record as a whole. Jackson v. Denno, supra.”
Moreover, the Supreme Court has written, since the issuance of its opinion in Jackson v. Denno, “Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity.” Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967) (emphasis added). On the record before us, the state trial judge‘s conclusion, if such he reached, that Brown‘s confessing statements were voluntary most certainly does not appear “with unmistakable clarity.”
We are gravely troubled over another issue presented in Brown‘s petition, an issue involving the question whether he was, in his state court trial, adequately represented by counsel. Since Brown was an indigent, the state court originally ordered that he should be represented by the office of the Public Defender of Los Angeles County, California. Pursuant to that order, a certain attorney from the Public Defender‘s office was assigned for Brown‘s assistance. Almost immediately a dispute arose between Brown and this particular attorney. There was a long period of delay between the time when Brown was charged and the time when he was finally brought to trial, and there is no suggestion that Brown himself was responsible for any of that delay.1 During that period, Brown himself made four motions that some other attorney be appointed to represent him.2 The state court summarily denied the motions, making no adequate inquiry into the cause of Brown‘s dissatisfaction with his counsel or taking any other steps which might possibly lead to the appointment of substitute counsel in whom Brown could repose his confidence. The result was that Brown was forced into a trial with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not cooperate, and with whom he would not, in any manner whatsoever, communicate. Thus, the attorney was understandably deprived of the power to present any adequate defense in Brown‘s behalf.
Brown made statements in open court that “Y‘all are having a Trial, there is no need for me to take the stand * * * I have no Lawyer here” and “You are trying a case; but not me * * *.” Accordingly, Brown did not testify in his own behalf, there was only perfunctory defense, and the jury found him guilty of murder in the first degree. The trial judge promptly reduced the offense to murder in the second degree. In his petition below, Brown alleged that his appointed attorney did not interview witnesses who were available and who could have testified as to facts, including his intoxica-
The judgment is reversed. Upon remand, the District Court may temporarily hold Brown‘s petition in abeyance and shall grant the petition unless California authorities do, within a reasonable period, not exceeding sixty days, grant Brown a new trial attended with all reasonable assurance that he be represented by competent counsel, from the Public Defender‘s office or elsewhere, in whom he may, if he does not demonstrate obstinance, recalcitrance, or unreasonable contumacy, repose his confidence.4
Reversed and Remanded, with directions.
KILKENNY, Circuit Judge (Specially Concurring):
I would remand to the district court with directions to require the Superior Court of California, (1) to hold within sixty days, a Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), type hearing on the voluntariness of the appellant‘s pre-trial admissions and statements; and (2) to hold a hearing on whether appellant‘s objection to his legal representation was to the Public Defender‘s Office as a whole, or as to the individual attorney assigned by the Public Defender‘s Office. If the
Notes
“Where he refuses to cooperate at all, it becomes a question of whether or not I can answer ready. I have discussed the case with him earlier, but now he refuses to talk to me at all. The propriety of going ahead where the defendant won‘t speak to the lawyer, it is a little difficult for me to state-”
* * * * *
“I just thought the Court might consider this as a rare situation. 987a [