2013-12

People v. Williams , 58 Cal. 4th 197 ( 2013 )

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Filed 12/19/13
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,                          )
)
Plaintiff and Respondent, )
)                             S118629
v.                        )
)
ROBERT LEE WILLIAMS, JR.,            )
)                        Riverside County
Defendant and Appellant.  )                     Super. Ct. No. CR64075
____________________________________)
Defendant Robert Lee Williams, Jr., was convicted by a jury of two counts
of first degree murder (Pen. Code, § 187; all further statutory references are to the
Penal Code unless otherwise indicated), one count of attempted murder (§§ 187,
664), and one count of sexual penetration with a foreign object (§ 289, subd. (a)).
The jury found true the special circumstance allegations that defendant committed
multiple murders (§ 190.2, subd. (a)(3)) and committed the murders during the
commission of robbery (§ 190.2, subd. (a)(17)), burglary (§ 190.2, subd. (a)(17)),
and torture (§ 190.2, subd. (a)(18)). The jury also found true the allegations that
defendant personally used a firearm (§§ 12022.5, subd. (a), 1192.7, subd. (c)(8))
and inflicted great bodily injury (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)).
Following the penalty phase trial, the jury returned a verdict of death.
This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239,
subd. (b).) For the reasons that follow, we affirm the judgment.
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I. FACTS
A.     Guilt Phase
1.     Prosecution Case
On the night of July 15, 1995, defendant and two accomplices entered the
residence of Gary Williams and robbed and murdered him and his father, Roscoe
Williams. (Because the victims and defendant share the same surname, we refer
to the victims by their first names. The victims were not related to defendant.)
The men also sexually assaulted and attempted to murder Gary’s girlfriend, Conya
L., but she escaped through a bedroom window.
a.       Robert Scott
Robert Scott testified that he and Gary, working together, had committed
over 20 armed robberies of credit unions during the early 1990s. On July 4, 1995,
Scott and Gary were sitting in Gary’s truck when defendant pulled up alongside in
his car. Defendant got out of his car, grabbed Gary, and pressed a black nine-
millimeter semiautomatic handgun against Gary’s neck, saying, “I know you
niggers out there getting licks and I want my share of the money.” Scott testified
that the term “lick” describes the proceeds gained from a completed robbery.
Defendant threatened that if Gary failed to meet his demand, defendant would kill
Gary and his family.
Gary and Scott decided to rob a credit union so they could pay defendant
and make money for themselves. On July 10, 1995, the men robbed an Orange
County credit union. Gary provided the guns and acted as the lookout while Scott
and another man, Curtis Jackson, entered the credit union and stole $56,000. Scott
and Jackson were captured following a high-speed police chase, but Gary fled in a
different car and escaped.
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b.     Conya L.
Conya L. testified that she and Gary had been romantically involved for
about a year, and that she was aware Gary made his living robbing credit unions.
On the evening of July 15, 1995, Conya L. and Gary went out to dinner. As they
drove back to Gary’s home in Moreno Valley, Gary informed Conya L. that he
needed to hurry back to the house because he had a meeting. Conya L. understood
that Gary was meeting Ronald Walker, who was known as “Boochie” or “Black,”
to buy a gun. As they turned onto Gary’s street, they drove past a burgundy
vehicle.
Upon arriving at Gary’s house, Conya L. observed that Gary’s father
Roscoe was waiting outside. The group entered the house, and Conya L. went
upstairs. From the master bedroom, she overheard Gary and Roscoe talking
downstairs. Roscoe said he was going to the store and asked Gary for money.
Gary gave Roscoe some money, and Roscoe left for the store.
From the bedroom window, Conya L. saw three men — defendant, Ronald
Walker, and a third man who was never identified or prosecuted (third perpetrator)
— leave a burgundy sedan and walk across the street toward the house. Defendant
was carrying a black case. As the men approached, Conya L. heard Gary say,
“Man, you didn’t see me and my girl? We passed you.” One of the men replied:
“Nah, nigger. I was rolling a joint.” When the three men and Gary went inside
the garage, Conya L. could hear “mumbled” talking.
Shortly thereafter, Walker appeared in the master bedroom and pointed a
gun at Conya L. Walker was wearing a pair of yellow dishwashing gloves but no
mask. He was soon joined by defendant, who was also wearing yellow
dishwashing gloves but no mask. Defendant ordered Conya L. to remove all of
her jewelry, which he then stuffed in his pocket. Because the suspects were
wearing gloves but not masks, Conya L. believed they intended to kill her.
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Defendant asked Conya L., “bitch where’s the money?” When Conya L.
said she did not know, defendant directed Walker to tie her up. Walker bound
Conya L.’s hands behind her back with duct tape, and defendant used a lamp cord
to tie her ankles. Defendant threatened to rape and kill Conya L. if she failed to
disclose the location of the money. The third perpetrator, also wearing yellow
dishwashing gloves and no mask, then came upstairs and discussed stealing Gary’s
clothes and shoes. Defendant told him to go back downstairs to “stay on duty.”
Defendant then ransacked the master bedroom, stealing gold chains and jewelry.
Eventually Roscoe returned from the store and called for Gary to let him in.
Defendant instructed the third perpetrator to “snatch his ass in the house.” Conya
L. heard the front door open and defendant command, “get the fuck in here, old
man. Don’t you say a motherfucking word.” The door slammed closed.
Defendant ordered his cohorts to bring Gary and Roscoe upstairs. Gary and
Roscoe, with their hands and feet bound, were dragged upstairs and laid in the
hallway; Conya L. observed that Gary’s eye was bloody and swollen shut. Gary
disclosed that money was hidden in a cologne bag in the master bathroom.
Dissatisfied with the amount found in the bag, defendant said: “That ain’t all the
money . . . . Gary just hit two banks back to back.”
Defendant then forced Conya L. into a bathroom. He shut the door,
instructed Conya L. to remove her shorts, and pulled down her underwear. He
then removed one of the yellow rubber gloves and, using up to three fingers,
digitally penetrated Conya L.’s vagina several times. Defendant paused when
Gary called asking to speak with him. During the encounter, Gary referred to
defendant as “Rob.” Upon exiting the bathroom, defendant said to the others:
“Do his old man in front of him.”
The third perpetrator went downstairs and returned with brown plastic trash
bags. He drew one of the plastic bags tightly over Roscoe’s head. Conya L.
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testified that at that juncture, Roscoe did not appear to have been gagged with duct
tape. Walker placed Gary in a choke hold and began choking him. Defendant
then grabbed Conya L. and placed her in a choke hold, rendering her unconscious.
Conya L. testified she felt like she was in a dream state as she lay face up on the
ground with defendant leaning over her, cutting her throat with a knife. Defendant
complained that the straight-edge knife was dull and ordered the third perpetrator
to get him a serrated one. Defendant then began cutting Conya L.’s throat with the
serrated knife. At that point, the phone rang. Conya L. saw beams from a car’s
headlights suggesting that a car was in the driveway.
All three men went downstairs, leaving Conya L. alone. Conya L. dialed
911, but upon hearing the men coming back upstairs, she left the 911 connection
on, climbed out the window, and jumped to the ground below. Naked from the
waist down, Conya L. ran from the house. After crying for help, she eventually
lay down in the street, and police found her a short time later.
c.     Deputy David Glen Kirkendall
Riverside County Sheriff’s Deputy David Glen Kirkendall testified that he
responded to the 911 call and arrived at Gary’s house just before 11:00 p.m. Upon
arriving, Deputy Kirkendall knocked on the front door. When no one responded,
he opened the garage and saw a pool of blood. He contacted police dispatch to
report his finding and was informed that the office had received numerous 911
calls regarding a woman in distress. Deputy Kirkendall hurried around the block
and saw Conya L. naked and “covered in blood.” When Conya L. pulled her hand
away from her throat, blood began pouring out.
d.     Michelle Contreras
Gary’s across-the-street neighbor Michelle Contreras testified that on the
night in question she observed four cars rapidly accelerate away from Gary’s
house in the same direction of travel. One of the cars was Gary’s Chevy Cavalier,
5
and another was an El Camino that Gary had been storing for a friend. The
Cavalier and El Camino were recovered by police in the following days, and
yellow dishwashing gloves were found inside the El Camino.
e.     Sheriff’s Investigator Brian Robert Fountain
Riverside County Sheriff’s Investigator Brian Robert Fountain testified that
law enforcement personnel found the bound bodies of Gary and Roscoe inside
Gary’s home. Both victims’ mouths were covered with duct tape. Two knives,
one serrated and one with a dull straight edge, were recovered near the bodies. An
empty black gun case was found in the street in front of the house. By stipulation,
the parties agreed that neither defendant’s nor Walker’s fingerprints or palm prints
were found in the house or on the gun case. Nor did any of the shoeprints located
in the house match any of the shoes subsequently confiscated from defendant or
Walker. Additionally, neither defendant’s nor Walker’s fingerprints were found
on the yellow rubber gloves that were discovered inside the El Camino.
f.     Forensic Pathologist Joseph H. Choi, M.D.
Riverside County Forensic Pathologist Joseph H. Choi, M.D., conducted
the autopsies of Gary and Roscoe. Dr. Choi testified that neither victim’s body
exhibited defensive wounds. Gary’s neck exhibited five nonfatal superficial cuts
and a single stab wound that penetrated nearly two inches. Dr. Choi opined that
the cause of death was blood loss due to a partially severed jugular vein, which in
turn caused cardiovascular failure. Roscoe’s neck exhibited a deep slash wound
that had fully severed his jugular vein and larynx. Dr. Choi opined that the cause
of death was blood loss causing cardiovascular failure. Dr. Choi further opined
that the duct tape was applied to each victim’s mouth before he was fatally slashed
or stabbed.
6
g.    Homicide Investigator Phil Ricciardi
Riverside County Sheriff’s Homicide Investigator Phil Ricciardi traveled to
the Riverside Community Hospital the day after the murders to interview Conya
L. Investigator Ricciardi first presented Conya L. with a picture of Walker, whom
Conya L. had previously identified to the police by way of his moniker. Conya L.
began crying and said “he was the one that did this to her.”
Investigator Ricciardi then read Conya L. a photographic lineup admonition
and presented her with a lineup containing a picture of defendant. Conya L.
pointed to defendant’s picture and said “he was the one that was cutting on her
throat.” At trial, Conya L. provided an in-court identification of defendant,
stating: “I’m a hundred percent positive . . . . There is no doubt in my mind . . . .
It was Rob. We were in the bathroom with the light on.”
In August 1995, Conya L. was visited by Riverside County Sheriff’s
Detective Gary Thompson. Detective Thompson presented Conya L. with a
photographic lineup for the purposes of identifying the third perpetrator. Conya L.
identified a man named Shawn Ford, but it was later discovered that Shawn Ford
had been incarcerated on July 15, 1995, and could not have been the third
perpetrator.
h.    Detective Martin Wildeman
Las Vegas homicide detective Martin Wildeman testified that after the
murders, the Las Vegas Metropolitan Police Department began conducting
surveillance at a motel where defendant was suspected to be staying. On July 26,
1995, defendant was seen leaving his motel room wearing a wig and hat. After
defendant returned to his room, law enforcement officers surrounded the motel
and took him into custody. Upon being arrested, defendant spontaneously
declared: “I guess I’m fucked because I’m going to jail behind two murders.”
Defendant refused to provide his name but said to another officer: “I’m hiding out
7
because they’re looking to pin a homicide on me.” A loaded gun was found in the
nightstand of the hotel room. At trial, Conya L. testified that she was “positive”
the gun was the same gun that Walker had pointed at her during the attack.
2.     Defense Case
The defense called several witnesses to the stand. First, Sonya Jimmons
testified that she was working as a social worker at the Riverside Community
Hospital when Conya L. was admitted in July 1995. Jimmons testified that Conya
L. reported to her that she had been sodomized during her attacks and that her co-
victims had each been shot in the head by their attackers. Jimmons also stated that
Conya L. had a visitor when Jimmons was present and that Conya L. was laughing
and joking. She further testified that Conya L. had requested a pregnancy test.
Second, the defense called Riverside County Sheriff’s Deputy Don Plata.
Deputy Plata testified that he had participated in the investigation of the murder
scene on July 15 and 16, 1995. He spoke with neighbor Michelle Contreras, who
informed him that she had seen four cars leaving Gary’s house.
Third, the defense recalled Conya L. and established that she had been
convicted of misdemeanor welfare fraud in 1991. Conya L. subsequently lied
about that conviction on two employment applications submitted in 1992 and
1996. Conya L. signed the 1992 application under penalty of perjury. In 1994,
Conya L. fraudulently used a Medi-Cal card.
The defense also attempted to impeach the credibility of Conya L. and
Scott through cross-examination. With respect to Conya L., for example, the
defense noted that two days after the murders Conya L. had said in a taped
interview that only two men had exited the car and approached the house, while at
trial she claimed there were three men. Conya L. had also said in a taped
interview three weeks after the murders that defendant was five feet seven inches
8
tall and weighed 170 pounds. Defendant was almost six feet tall and weighed 275
pounds at the time of the murders.
With respect to Scott, the defense suggested that Scott had attempted to
obtain a reduction of his prison sentence in exchange for testifying against
defendant. In a letter dated June 5, 2002, for example, Scott had written: “I was
willing to assist you [prosecutors] in the past, and I was under the impression your
office back then was going to assist me with the US Attorney and judge in the
[Lake Forest robbery] case.”
B.     Penalty Phase
1.     Evidence in Aggravation
The parties stipulated that defendant had been convicted of three prior
felonies. The first conviction was for possession of cocaine in 1986, and the
others were for possession of a firearm by a convicted felon in 1992.
Roscoe’s brother, George Frank, testified that Roscoe was 55 years old
when he was murdered. Frank testified that Roscoe was caring, funny, morally
decent, and well-liked. Frank said that the family missed Roscoe terribly and that
Frank’s grandchildren were aware that Roscoe had been tortured and murdered.
On cross-examination, Frank acknowledged that Roscoe had struggled with drug
addiction and had many criminal convictions for narcotics and theft. Roscoe’s
sister, Erma Foster, testified that Roscoe had been a good brother and friend, and
“was never mean to anybody.”
2.     Defense Mitigation Case
Abel Zaragoza testified that he had worked as a correctional group
supervising counselor at the Riverside County Sherriff’s Department in 1998.
Zaragoza testified that defendant had voluntarily joined and participated in an
anger management program while in prison. Daniel Johnson, a teacher who
offered general education and other courses to inmates on an independent study
9
basis, testified that defendant had earned his GED and a certificate for anger
management class completion.
Defendant’s 17-year-old daughter, Fantasia Williams, testified that she
wanted her father’s life to be spared. Defendant’s close friend, Victoria Windom,
testified that defendant had been like a son to her and had acted like a big brother
to Windom’s children. She said that defendant had always been respectful to her
and had influenced her children to stay in school. Donna Josey similarly testified
that she had known defendant since he was 13 years old and that he had been like
a son to her and had made friends with everyone. Defendant had been unable to
establish a bond with his father, however, because his father used marijuana and
crack cocaine. Josey further testified that defendant had worked at Burger King
while he was young and had been a good worker. Pearl Lee testified that she had
known defendant since he was young from the “projects” and that defendant had
been like a big brother to Lee’s daughters and had encouraged them to stay in
school.
II. DISCUSSION
A.     Speedy Trial Claim
1.     Procedural Background
Defendant argues that the nearly seven-year delay between his arrest and
the start of his trial violated his right to a speedy trial as guaranteed by the Sixth
Amendment to the United States Constitution. Addressing this claim requires a
somewhat lengthy recitation of the pretrial proceedings in this case.
Defendant was arrested on July 26, 1995, and arraigned on August 11,
1995, along with codefendant Ronald Walker. Defendant was represented at the
arraignment by Riverside County Deputy Public Defender Forest Wright. After
both defendants entered pleas of not guilty, the preliminary hearing was set for
September 7, 1995, before Judge Myers.
10
Following several requests for continuances by both defense counsel and
for which both defendants agreed to waive time, a new preliminary hearing date
was set for November 15, 1995. On November 9, 1995, Walker’s counsel sought
a 20-day continuance because he was in another trial. Wright, however, opposed
the continuance, explaining that his client “preferred to have the prelim as set.”
Finding good cause, the trial court continued the matter until December 1, 1995.
On November 29, 1995, Walker’s counsel requested another continuance
because of a scheduling conflict. Wright withdrew his opposition to the
continuance, stating that he had been ill and had been unable to meet with
defendant. Defendant agreed to waive time. Prosecutor John Ruiz objected,
stating that he was ready to proceed immediately. The trial court overruled the
prosecution’s objection, accepted defendants’ time waivers, and continued the
preliminary hearing until December 22, 1995.
During a status conference on December 14, 1995, Walker’s counsel
requested another continuance. Wright opposed the continuance on behalf of his
client. The prosecutor also objected to any further continuances. The trial court
denied the continuance request and pushed the preliminary hearing date up one
day to December 21, 1995.
On December 21, 1995, Walker’s attorney requested another continuance to
listen to tapes that had just been provided by the prosecution. Defendant initially
refused to waive time, stating: “I don’t want to waive no time. I want to come on
and do this.” He explained: “[T]his case is my life. And I have been in jail five
months. And it seems like nothing new has come up in five months.” The trial
court advised defendant to reconsider: “You can demand your right to go to
preliminary hearing. That’s fine with the Court. I’m just saying, also realize that
your attorneys have indicated they need to review some of this additional
information. If that’s fine with you and you don’t care, . . . because you have
11
knowingly indicated you want to go forth whether your attorneys are prepared or
not . . . it is going to preliminary hearing today.” Defendant then agreed to waive
time. The preliminary hearing was held on January 4, 1996, and both defendants
were held to answer. Arraignment was set for January 17, 1996.
On January 17, 1996, defendant requested a Marsden hearing to express his
dissatisfaction with assigned counsel. (See People v. Marsden (1970)

2 Cal.3d 118

, 124 [holding that “a judge who denies a motion for substitution of attorneys
solely on the basis of his courtroom observations, despite a defendant’s offer to
relate specific instances of misconduct, abuses the exercise of his discretion to
determine the competency of the attorney”].) Defendant explained that he was
“not trying to be a problem” but that he felt his case was “getting nowhere.” He
explained: “My attorney had my case for six months, and it’s nothing — it’s like
we ain’t took one step.” He requested that he be appointed “an attorney that [was]
not so busy.” Wright agreed, saying: “He’s right. I am too busy. I would like to
get rid of a few cases.” Nonetheless, he assured the trial court he would be able to
provide a competent defense. The trial court denied defendant’s Marsden motion
and set the arraignment for the next day.
On January 18, 1996, both defendants were arraigned on the information,
and the district attorney gave notice that the death penalty would be sought.
Counsel for both defendants sought to continue the trial date beyond 60 days.
Walker agreed to waive time, but defendant refused. Walker’s counsel then
moved to sever the cases, stating: “We cannot be ready within 60 days, and if Mr.
Williams forces us to be going to trial within 60 days, I think my client would be
severely prejudiced . . . .” The severance motion was continued, and the
continuance motion was denied. The trial was set for March 11, 1996.
On February 2, 1996, Walker’s counsel filed a motion to sever his case
from defendant’s because he needed more time to prepare for trial and because
12
defendant was refusing to waive time. At the next hearing on February 23, 1996,
Wright joined in the motion to sever. The motion was denied. The trial court
denied defendant’s second Marsden motion on that same date.
On March 1, 1996, Wright requested a continuance of the trial date over
defendant’s objection. The court asked the defendant: “I take it you want to
continue to object to a trial date beyond that March 11 date; is that correct?”
Defendant replied: “Yes.” Despite defendant’s objection, the court found good
cause to continue the trial another 60 days to May 6, 1996. Shortly thereafter, the
case was reassigned to Judge McConaghy.
On May 3, 1996, counsel for both defendants moved to continue the trial
date. Wright indicated he would be unprepared to proceed with the trial as
scheduled. The prosecutor announced that the prosecution was ready for trial.
Defendant again expressed frustration with the lack of progress in his case and
said he had not spoken with his attorney a single time since the last hearing. The
trial court then held another Marsden hearing, at which point Wright
acknowledged that his being “in court every day, all day” was impeding his ability
to work on motions. He indicated, however, that he was proceeding “as diligently
as [he could] at this point, given the staff level that [he had] among qualified
persons.” The trial court denied defendant’s Marsden motion and continued the
trial to October 7, 1996. The trial court explained: “And I do this, that is, grant
the 1050 motion [for a continuance] reluctantly because I know [defendant] wants
a speedy trial. And, as I previously said, that the Court would like to get this
trial . . . starting Monday morning. I would be more than happy to do it, but we do
have conflicting constitutional issues involved . . . . [¶] And as I previously stated,
the constitutional right to have a competent attorney, in this Court’s opinion, far
outweighs the constitutional right to a speedy trial, which does not mean that we
totally ignore the right to a speedy trial.”
13
On August 30, 1996, the trial court considered defendant’s fourth Marsden
motion. Defendant again voiced his concern over his attorney’s lack of progress
in preparing for trial: “I would like to see if it’s possible to relieve my counsel and
represent myself in this case, because I don’t feel that I’m going to get a fair trial
. . . . [E]verything that [defense counsel] stipulated that he needed the extra 60
days for [at the last hearing], . . . still none of them was completed.” He then
clarified: “If I can have a new lawyer appointed, then I know there’s no way in
the world I would try to fight a case like this myself. But if I cannot have a new
lawyer appointed, that is my desire to represent myself.” Wright responded that
defendant had been “a little bit stingy with his information at times,” and that “it’s
not the case that nothing’s been done, because a lot has been done in this matter.”
He added that the investigation was ongoing, but noted that defendant’s “life has
been very different from a lot of persons’ background, and that’s created problems
in finding relatives and finding a lot of things that are necessary.” During further
closed hearings held on September 4, 1996, and September 11, 1996, defendant
withdrew his request to represent himself, and the trial court indicated that it “fully
intend[ed] to start this trial on October 7th.”
At a separate hearing on September 4, 1996, the prosecutor announced he
was ready for trial but “indicate[d] for the record that [he had] received no reports
from either of the defendants relating to reciprocal discovery.” On September 11,
1996, Wright said he did not anticipate being prepared for the trial and requested
second counsel or “Keenan counsel.” (See Keenan v. Superior Court (1982)

31 Cal.3d 424

, 430 [trial court has discretion under statutes governing appointment of
counsel to appoint a second defense attorney to assist in defense of a capital case];
§ 987, subd. (d).) At the end of the hearing, the trial court asked defendant if he
would be willing to “waive [his] right to a speedy trial until October 7th, plus 60
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days thereafter . . . ?” Defendant agreed. On September 20, 1996, the trial court
denied Wright’s request for Keenan counsel.
On September 23, 1996, defendant filed a petition for writ of habeas corpus
in the Riverside County Superior Court asserting ineffective assistance of counsel.
The petition was denied.
On September 27, 1996, defense counsel for both defendants moved to
continue the trial until January 27, 1997. In a written declaration, Wright said he
had “not completed investigation of the ‘guilt/innocence phase’ of the case.” He
explained that his “on-going duties to represent other clients . . . necessitate[d]
[his] diligent attention to nine felony cases . . . . set for jury trial before the end of
November, 1996, and also to one other death penalty case.” During the hearing,
Wright said that he believed that a second attorney should be assigned to the case
and that he would be “in much better shape” if his office could make that
accommodation. Asked if he would be willing to waive time, defendant
responded: “I’ll go ahead and waive time. It won’t make any difference, but I’ll
go ahead and waive time.” He requested the trial court’s assurance, however, that
the new trial date would be fixed and firm: “I’d just like to know that after the
continuance, the January 27, ten days after that, after that is you going to continue
this again, or is this it?” The trial court responded that its “impression of what
we’re doing is that we’re picking a firm trial date with a time waiver until that
date, plus ten court days thereafter, with one little exception. If there’s some
reason why either of the defense attorneys need a . . . short continuance after that,
to provide all the rights you two fellows have a right to.”
On November 15, 1996, the trial court instructed Wright to provide the
prosecution with a list of all unresolved discovery issues by December 13, 1996.
After receiving the list, the prosecution indicated that it intended to contest several
of defendant’s discovery requests. The trial court scheduled a hearing on the
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contemplated discovery motions for January 3, 1997. This date was later
continued to January 15, 1997.
On January 15, 1997, defendant was represented by Wright’s associate,
Deputy Public Defender Mara Feiger, who had agreed to serve as cocounsel.
Feiger, along with Walker’s attorney, requested a continuance of the January 27,
1997 trial date. The trial court granted the request, and trial was continued to
April 28, 1997. Feiger indicated that she expected the new trial date to be firm.
Asked to waive time, defendant said he did not believe it would assist him to
refuse to waive time because the matter would be continued over his objection:
“[T]he way it sounds, it don’t really make a difference if I agree or not. It seems
like everybody else agrees to it. I mean, me saying no ain’t helping me other
times. I don’t see how it’s going to help me now. . . . [¶] I mean, it don’t help me
none to sit here and say, no, I don’t waive my time, because the thing’s going to be
continued.” The trial court accepted defendant’s comments as a valid waiver and
continued the trial to April 28, 1997.
The trial court held various hearings on discovery-related matters in
February and March of 1997. On March 7, 1997, the prosecutor requested that the
court redact Conya L.’s address and phone number from certain documents before
they were turned over to the defense. The trial court ordered the parties to brief
the issue. On March 21, 1997, Feiger indicated that she anticipated requesting a
continuance because she wanted to bring a motion to compel numerous discovery
items.
On March 24, 1997, the trial court held a fifth Marsden motion hearing. At
the beginning of the hearing, defendant stated that he “[didn’t] know if this was
the proper way to address what I wanted to address,” and explained that he simply
wanted to speak to the court. He first attempted to apologize for his behavior, but
the trial court responded: “I’m not worried about your behavior.” Defendant then
16
stated: “I just wanted to say this. You have been basically familiar with my
attempts over and over trying to relieve Mr. Wright of counsel, and my not
waiving time, trying to hurry up and rush the trial. The reason that I was doing that
was because I felt that this was just going to get against — pushed to trial. And
the outcome is already set. . . . Now, since Ms. Feiger has been on my case, a lot
of the things that we got continuances for a year ago just now started getting done;
a lot of the investigation, a lot of — just basically preparing for my defense just
started getting done since she’s been my attorney. . . . Now, I see the work that my
attorney is doing, and I also know, just like I knew then, that I am facing death in
this case. So I just want, if possible, to give her whatever time she can get, or
what she would need.” When asked if he wanted to relieve his two lawyers,
defendant responded: “I don’t want to fire Ms. Feiger. If I can fire Mr. Wright, I
would love to. But I failed on, I think, four different times so I kind of gave up on
that.”
On March 31, 1997, Feiger filed a motion to compel the prosecution to
produce Conya L.’s address and requested a continuance. Also on that date, the
prosecution indicated that it was in possession of taped jailhouse conversations
between Walker and his girlfriend to which defendants were entitled. Defendant
waived time, and the trial court continued the trial to July 28, 1997.
On April 29, 1997, the prosecution indicated that it had turned over to the
defense the recorded conversation between Walker and his girlfriend, but that it
had not yet provided a transcript of the girlfriend’s statement to the police. Also
on that date, the parties revisited the question of whether the defense was entitled
to disclosure of Conya L.’s address and telephone number. After several more
hearings on this question, the trial court ruled on June 6, 1997, that it would not
order the requested information disclosed to the defense. Also on June 6, 1997,
counsel for both defendants moved to continue the trial in light of the ongoing
17
discovery disputes. Defendant waived time, and the trial date was continued to
October 10, 1997.
On August 7, 1997, the parties continued litigating various discovery
issues, including defense counsel’s request for the address of another witness. The
trial court ordered the prosecution to produce the address. The prosecution was
granted a two-week continuance to consider taking a writ to challenge the ruling.
When no writ was filed, the trial court granted the prosecution an additional 15
days to respond to the court-ordered disclosure.
On September 5, 1997, Walker’s counsel declared a conflict and sought to
be relieved. The motion was granted two weeks later, and an attorney from the
criminal defense panel (CDP) was appointed to represent Walker. The trial court
heard multiple defense discovery motions on September 29, 1997.
On October 7, 1997, Feiger said she probably would not be prepared to go
to trial for at least a year because she believed that the prosecution had failed to
adhere to its discovery obligations. Walker’s new counsel similarly indicated that
he would not be prepared for trial for at least six months and “probably closer to
. . . 12 than six.” The prosecution objected to any continuance and claimed that
the defense “was engaged in a fishing expedition.” The prosecution also argued
that the trial court had “an obligation to appoint counsel, where counsel on the
case can proceed in a fashion that would not disrupt the orderly administration of
justice,” and that it was not appropriate for the court to grant a year-long
continuance “just so CDP can keep it in-house.” The trial court acknowledged
that “discovery ha[d] not been smooth in this case in either direction” but said it
was not “pointing a finger” at either the defense or the prosecution. The trial court
ultimately granted the motion to continue and set a “firm” trial date for August 3,
1998. Defendant agreed to waive time.
18
On December 5, 1997, the prosecution requested an additional two weeks
to respond to a defense motion to compel disclosure of witness information. The
request was granted.
On January 23, 1998, Feiger said the prosecution still had not turned over
the discovery items the trial court had ordered produced on September 29, 1997.
The prosecution addressed each item in turn and agreed to provide the missing
items. The parties dispute whether or not the relevant materials had been provided
in a timely fashion.
On April 3, 1998, the public defender’s office declared a conflict with
defendant. A representative of the public defender’s office, Floyd Zagorsky, said
that while he was not at liberty to discuss the nature of the conflict, it was “a result
. . . of information that we received recently from the prosecution . . . we felt
should have been provided much earlier in the case.” In response, the trial court
relieved Wright and Feiger. Because of the conflict, defendant’s case was referred
to the criminal defense panel, and CDP attorney Jay Grossman sought and
received a 31-day continuance to arrange for another lawyer to represent
defendant. A month later, on May 4, 1998, Grossman was granted a 27-day
continuance as he continued to arrange for defendant’s representation.
On June 2, 1998, CDP attorney Grover Porter was appointed to represent
defendant. Porter requested that the trial be scheduled for February 23, 1999, so
that he could have adequate time to prepare. Defendant agreed to waive time.
On September 18, 1998, Porter asked to withdraw for health reasons. The
trial court granted the motion. On September 25, 1998, CDP attorney Douglas
Myers was appointed as counsel. On October 1, 1998, Myers appeared and
indicated that CDP attorney John Aquilina would be his cocounsel; the hearing
was continued until October 20, 1998 to determine how long defense counsel
would need to prepare for trial. On October 20, 1998, Myers was relieved, and
19
Aquilina said he needed an additional two weeks to evaluate the file in order to
determine when he could be ready for trial. On November 3, 1998, stating that he
had recently received “eight boxes of materials,” Aquilina requested that the trial
date be pushed back seven months. The trial court found good cause to continue
the trial to June 14, 1999.
On January 22, 1999, Aquilina indicated that another death penalty case
was “[o]ccupying a great deal of [his] time” but that he still anticipated being
ready for trial on June 14, 1999.
On April 23, 1999, Aquilina requested that the trial date be continued in
order for him to conduct additional investigation and because of an issue regarding
his investigator that he could only discuss in camera. The prosecutor opposed the
request, highlighting the age of the case and pointing out that defendant’s
investigator had been involved with the case “for years.” The trial court agreed
that defendant’s case was then “the oldest one in the courthouse” but agreed to
hold an in camera hearing to discuss Aquilina’s concerns.
During the in camera hearing, Aquilina informed the trial court that Grover
Porter had retained an investigator in June 1998 but that neither Porter nor
Aquilina had asked him to “conduct any investigation whatsoever.” About three
weeks prior to the in camera hearing, the investigator had informed Aquilina that
he needed to withdraw from the case to care for a terminally ill family member.
As to retaining a new investigator for the guilt case, Aquilina believed that one
would be available in June. A paralegal who had worked for Wright on the
penalty phase would also be available after her final exams were completed in
June. Summing up the situation, Aquilina said “no investigation [to] my
knowledge has been conducted since the public defender’s office was relieved in
April of ’98.”
20
At the hearing, Aquilina further commented: “I guess what distresses me
the most is that the public defender was appointed to Mr. Williams’ matter, it
appears, on August the 11th of 1995, was relieved in April of 1998, after declaring
a conflict of interest. And . . . it would appear all an attorney would have to do is
catch up to what has occurred. Quite candidly, I don’t see that even five percent
of the investigation necessary in the guilt phase of this case has been conducted.”
Aquilina noted that various witnesses had not been interviewed and that “trying to
locate witnesses, contact witnesses, interview witnesses” going forward would
“obviously not [be] as easy as it would have been back then.” Aquilina
apologized to the court that during his own representation of defendant since
October 1998, he had not moved the investigation forward because his
engagement on two other death penalty matters had prevented him from working
on defendant’s case. Aquilina said he didn’t think that “mentally, emotionally,
psychologically” he could handle “three capital cases in one year in a twelve-
month period.” Toward the end of the hearing, the court said to defendant: “I’ve
held a few Marsden motions with you and a few motions that weren’t truly
Marsden motions, but when we got to talk about what’s going on — and I think
it’s safe to say it’s been your concern all along that not enough has been done in
your case.”
On May 13, 1999, Aquilina requested that the trial date be continued. The
prosecutor opposed the request. Walker also opposed the continuance request.
Defendant waived time, and the trial court continued the trial until January 10,
2000. Four days later, on May 17, 1999, the trial court held a sixth Marsden
hearing. Defendant indicated that he had been unable to communicate with
Aquilina or his staff, and voiced his concern about Aquilina’s apparent failure to
make any progress on the case. Defendant also expressed his fear of going to trial
“with an attorney that only knows bits and pieces of the case.” Aquilina
21
acknowledged that defendant was “partly correct” in that he “[had] not been able
to give [defendant’s] case or [defendant] the attention he needs or deserves.”
Aquilina represented, however, that he would be prepared to start the trial in
January 2000. Defendant’s Marsden motion was denied, and on June 25, 1999,
CDP attorney Regina Filippone joined Aquilina as cocounsel for defendant.
On August 30, 1999, the trial court held a seventh Marsden hearing.
During the hearing, the presiding judge left the courtroom, and Aquilina disclosed
to a different judge that one of his other clients might have information that could
impeach Conya L.’s testimony in defendant’s case. In light of this potential
conflict of interest, defendant’s Marsden motion was granted. On September 2,
1999, CDP attorney David Gunn was appointed to represent defendant.
On October 1, 1999, Gunn said he needed several weeks to determine when
he could be ready for trial and also said he was in the process of securing
cocounsel. On October 22, 1999, Gunn indicated that the January 10, 2000 trial
date was unrealistic and that he was still in the process of securing cocounsel.
On November 22, 1999, Gunn explained to the trial court that he was still
attempting to secure cocounsel and would not be prepared for trial in January.
Noting Walker’s objection to any further continuances and “recognizing that this
is going to take two juries,” the prosecutor said he was “prepared to make a
motion to sever the two cases.” On December 17, 1999, the trial court granted the
severance motion, stating: “[I]n fact, I wish we would of thought of this at least a
couple of years ago. But we didn’t. Or at least we didn’t talk about it. It seems
like it might be the only way we’re ever going to get this case to trial is to sever it
and bite the bullet and actually do the case twice.” Also on that day, Gunn
announced that CDP attorney Bruce Cormicle would be serving as cocounsel.
On December 21, 1999, the trial court heard defendant’s eighth Marsden
motion. Defendant indicated that he wanted to bring to the trial court’s attention
22
the fact that he was having difficulty communicating with Gunn “before we get
too far down the line.” He also stated: “I’m tired. I want to go to trial. I’m tired
of sitting here. As you recall, two years ago, three years ago, I didn’t want to
waive no time. I wanted to go to trial then. I look at — like, you understand, my
life is on the line. If I was going to lose my life, let me lose it now and not sit in
here for four, five years, which looks like I ended up doing anyway. In the last
two years, nothing’s been done.” The trial court denied the motion.
Also on December 21, 1999, following the Marsden hearing, Gunn
informed the trial court that he had “about eight murder cases still set pending for
next year” and that he would therefore request a trial date of October 2, 2000. The
trial court granted the request.
On January 14, 2000, CDP attorney Cormicle officially appeared as
cocounsel for defendant. During an April 7, 2000 status conference, the trial court
inquired if the parties would be prepared to go forward with the October 2, 2000
trial date. Gunn said that the defense was “on track” but that he had “lost [his]
investigator due to family problems” and that he was just in the process of getting
new investigators “on board.” On May 12, 2000, Gunn indicated that his effort to
retain an investigator had been unsuccessful and that the problem would likely
affect his ability to be prepared for the upcoming trial date.
On June 9, 2000, the trial court held a ninth Marsden hearing. The trial
court concluded the hearing when defendant acknowledged that he did not want to
“fire[]” his attorney and simply wanted to apprise the court of the status of his
case. The same day, Gunn informed the trial court that he had just gotten funding
approved for an investigator and that before the funds were approved, he had
experienced “a period of time of about two months where we kind of lost our
ability to have investigative work done.”
23
On July 14, 2000, the trial court heard defendant’s tenth Marsden motion.
Defendant voiced his concerns as follows: “I would like counsel dismissed on my
case, due to the fact that from day one . . . to the present date, me and counsel does
not have no opportunity to sit down, and he actually know anything in this case.
Ask him about the case. Time and time again he told me that he would get caught
up with the case. That’s all been a lie. We referred to the Court four months ago
we didn’t have an investigator. We got an investigator three months ago. To the
present date, no investigator has been to talk or — the case been at a stand still for
10 months since Dave Gunn been on the case.” In response, Gunn acknowledged
that because of his problems finding an investigator and obtaining the requisite
funding, he had lost “three to four months, in terms of actual preparation of the
investigation.” He also acknowledged that the investigator had not met with
defendant since funding had been approved because of “vacations” and that the
investigator had been “working on a death penalty case in Rancho Cucamonga that
was just concluded.”
After hearing both sides, the trial court issued the following ruling: “I’m
going to deny the motion. . . . The bottom line, as I see it . . . is to have adequate
representation and be prepared for trial is a must. Whether or not that gets done
on a full-time basis working from sun up to sundown for a short period of time, or
anything in between that, and working an hour all day for 10 years I don’t think is
what’s important. [¶] What’s important is, is there adequate representation at the
time we get started at trial? And so I can’t even pretend that I know enough or
that I have the power or authority to tell Mr. Gunn you must work ex number of
hours this week on this case, because he has to manage his calendar. He’s got
other clients he is also working for. . . . [¶] I understand from your stand point, Mr.
Williams, that you’re the person that’s on the line here. You have been — this is
an old case in many respects. This case should have been to trial a good long time
24
ago. No one is going to quibble about that. If we would have bifurcated a good
long time ago, perhaps we would have had part of it to trial already and had been
done. Didn’t do so. That’s neither here nor there. That’s just a fact of life. [¶] I
see no reason why this one won’t get to trial in a timely manner now. And I’m
just — I don’t see any reason to grant the motion.”
On August 11, 2000, defendant moved to represent himself. (See Faretta v.
California (1975)

422 U.S. 806

, 819 (Faretta).) On August 16, 2000, the trial
court granted defendant’s Faretta motion, but directed Gunn to remain as “standby
counsel.” At defendant’s request, the trial court continued the trial date to
February 5, 2001.
At a hearing held on October 6, 2000, defendant voiced concerns regarding
Gunn’s role as standby counsel. Defendant further noted that he had filed a
malpractice suit against Gunn and said he did not “know if that would declare a
conflict or not.” Defendant also claimed that his court-appointed investigator
would not take his calls and failed to visit him in jail.
On October 13, 2000, the trial court considered defendant’s motion to
compel disclosure of various discovery items. The trial court indicated that it
would “handle that [motion] like I would any other discovery motion” and “order
that . . . the defendant and the district attorney [] get together and narrow the list
down to items that one side still thinks they have a right to.” The trial court also
informed defendant that it had no role to play in defendant’s request for funds.
On November 3, 2000, attorney John Davis filled in for prosecutor John
Ruiz and requested that the hearing on defendant’s discovery motions be
postponed until Ruiz’s return. Davis noted that Ruiz “would . . . be the person to
argue on [defendant’s] current motion, which appears to be a discovery motion for
six or eight . . . audio tapes and 911 logs . . . that normally we don’t object to, but
we probably have not provided to him previously. And they probably should have
25
been.” The trial court continued the hearing until November 9, 2000. On
November 9, 2000, Ruiz was “still ill,” and the trial court again postponed the
hearing.
On November 22, 2000, Davis informed the trial court that Ruiz would
likely “be ill for probably another three or four weeks.” Defendant stated for the
record: “[I]t seems like it’s getting impossible to get investigation and discovery
issues. And I just hope it don’t be difficult when that time come to go to the next
phase, as far as you understand having to fight for a continuance and not look like
it’s my reason why I need the continuance.” The hearing was continued until
January 4, 2001.
On January 4, 2001, Ruiz was still ill. The trial court expressed its concern
with Ruiz’s continued absence and suggested that Davis be prepared to take over
the case: “I’m a little bit concerned that we’re — Ruiz can try this case easily
enough because he tried [Walker’s] companion case earlier. . . . But we don’t
know what his health is. . . . I don’t want Davis to think I’m trying to run the
DA’s office, but Davis can try this case. . . . Davis is a good enough lawyer. He’s
got enough time that he can be ready. . . . [Ruiz is] the best candidate to try it
because he’s tried the other half of it, but I don’t want to get into a position where
[defendant] is caught between a rock and a hard spot because the DA’s office is
not ready.” The hearing was continued until January 12, 2001.
Ruiz returned for a hearing on January 12, 2001. During the hearing,
defendant claimed that the prosecutor had failed to provide him with discovery;
the prosecutor, in turn, responded that some of the requested items had been
turned over to the defense long before. The trial court ordered the parties back on
January 26, 2001, to consider a new trial date. The trial court also denied
defendant’s request that the trial court “appoint a second counsel.”
26
On January 26, 2001, defendant filed a motion to disqualify the trial judge
pursuant to Code of Civil Procedure section 170.1. On the same day, the
prosecutor informed the court that his office had made copies of several of the
tapes defendant had requested but that “[defendant] doesn’t get these until they are
paid for.” Defendant responded that he had no investigator and that he didn’t
know if funding had been approved. On January 30, 2001, the trial court denied
defendant’s section 170.1 motion.
On January 31, 2001, defendant stated that he needed a six-month
continuance, explaining that he was “starting from scratch” and needed time to
prepare. The prosecutor objected to further delay, represented the prosecution was
ready to proceed to trial immediately, and complained that defendant was utilizing
his in propria persona status to cause delay. The trial court granted defendant a
two-month continuance until April 2, 2001.
On February 23, 2001, the prosecutor told the trial court that he had given
his investigator’s phone number to defendant. Defendant responded that the
investigator never picked up the phone to accept his collect calls. Also on
February 23, 2001, defendant filed another motion to disqualify the trial judge
pursuant to Code of Civil Procedure section 170.1. The motion was denied.
On March 7, 2001, defendant filed a motion to disqualify the prosecutor
pursuant to Penal Code section 1424, another motion to disqualify the trial judge
pursuant to Code of Civil Procedure section 170.1, and a motion for a change of
venue pursuant to Penal Code section 1033. The motions were all denied. On
March 16, 2001, defendant waived time, and his motion for a continuance was
granted over the prosecutor’s objection. The trial was continued until June 4,
2001.
On March 20, 2001, defendant claimed that tests had been performed on his
clothing but that the results had never been produced; the trial court put the matter
27
over at the prosecutor’s request. On April 5, 2001, Ruiz turned over the clothing
and test results, which revealed that no blood had been found on the clothing.
Also on that date, defendant indicated that some of the tapes the prosecution had
provided contained no audio; Ruiz responded by promising to have copies made
and to turn them over to defendant once they were paid for. The trial court also
granted defendant’s request that his wife, Sharon Williams, be appointed as his
unpaid legal runner.
On April 17, 2001, the prosecutor told the court that defendant had been
provided additional copies of discovery that he did not believe to be in his files,
and said defendant had refused to reimburse the district attorney’s office for the
cost of photocopying the requested documents.
On May 1, 2001, standby counsel Gunn indicated that standby cocounsel
Cormicle would be unavailable in June and therefore requested that the trial date
be pushed back into July 2001. The court stated that the reason it “appointed
standby counsel [was] because [it believed] there [was] a better than even chance
[standby counsel would] end up trying the case” and that it would therefore be
prudent to allow standby counsel adequate time to prepare in case they were called
upon to take over the defense. Defendant said he did not oppose the request and
waived time. Over the prosecutor’s objection, the trial court continued the trial
until July 30, 2001. On May 18, 2001, the trial court denied defendant’s motion to
remove Gunn as standby counsel.
During a June 15, 2001, trial readiness conference, the trial court noted that
it had received a letter from defendant’s court-appointed investigator notifying the
court that the investigator was “no longer” on the case and asking for his
appointment to be terminated. In the letter, the investigator stated: “I find it
impossible to work with Mr. Williams.” The trial court granted the investigator’s
request and relieved him from the case.
28
On June 28, 2001, the trial court heard defendant’s motion to remove Gunn
as standby counsel. Citing the civil litigation he had filed against Gunn, defendant
argued that Gunn would not do his “best” because a guilty verdict would provide
Gunn with a defense to defendant’s pending civil suit. Gunn indicated that he was
“concerned enough” about the potential conflict that he had “called the State Bar,”
but stated that he still believed he could serve as standby counsel. The court
denied the motion.
Also on June 28, 2001, the prosecutor argued that defendant was engaged
in delay tactics. The prosecutor stated: “The court knows how long I have sat
back and waited. But . . . the letter by Mr. Evans [defendant’s investigator] — you
know, thank God a non lawyer addressed this court because this non lawyer told
you in no uncertain terms what the problem is. And that’s symbolic of what the
problem has continued to be. As he states in his letter, he asked to be relieved
from his position, appointed as his investigator, quote, ‘I find it impossible to work
with Mr. Williams.’ This letter lays out how Mr. Williams has done everything to
delay the proceedings in his dealings with the investigator. He takes a hostile
attitude with his own investigator and refuses to cooperate with him.”
The trial court noted at this point that defendant had chosen and hired this
investigator himself. The prosecutor agreed and added: “The record has shown
that this defendant has tried to fire every lawyer he has ever had.” When
defendant interrupted by saying, “Not Mara Feiger,” the prosecutor said that “the
only reason he did not try to fire Mara Feiger is because he saw in Mara Feiger a
lawyer who was going to tell him to violate Court orders that you just laid down in
the courtroom in that very session. . . . This is only going to delay the proceedings
and stretch it out. So the only attorney he never tried to fire was Ms. Feiger. And
she did him the favor, after representing him for a year and a half, of declaring a
conflict of interest, knowing that that was going to delay the trial another year,
29
playing right into the defendant’s hands. So no wonder he wants to put her up on
an alter [sic]. She did his bidding.
“What do we see here in the letter? We see a non lawyer addressing the
Court letting us know what’s going on with Mr. Williams.
“He tried to fire Forest Wright so many times I can’t count them. Then he
was given Grover Porter. Mr. Porter’s health did not allow him to take the
aggravation that we now see that Mr. Williams dishes out to the people that are
forced unfortunately to deal with him. He fired — or he Marsden’d John
Aquilina. [¶] Your honor has done so many Marsden motions on Mr. Gunn as
counsel, I think it says something. When you look back — this is a conservative
estimate — he’s made 25 Marsden motions. Now, at some point the world says,
‘Is it us or is it him?’ And it’s him.”
The prosecutor then urged the trial court to relieve defendant of his Faretta
status: “Your Honor has the basis today for relieving the defendant of his pro per
status by finding that the defendant has used and manipulated his pro per status to
delay these proceedings. Because if the Court enjoys discretion in anything, it is
to effect the orderly administration of justice in this courtroom.
“Your Honor, Mr. Williams — I want to add to that how long we’ve been
on this case. We arrested Mr. Williams two weeks after the murders on July 15th
of 1995. In two weeks, we’ll celebrate the sixth anniversary of the murders in this
case. And he has done everything he can to stretch it out, to delay it, to avoid this
day, in the hopes that Conya dies, that the other witnesses are unavailable. There
has been evidence of the defendant’s attempts to have Conya killed from years
ago.
“Your Honor, I think the appellate courts are going to say, ‘Mr. Williams,
six years is long enough.’ He is no closer to trial today than he was a year ago.
He doesn’t even have an investigator. No investigator will work with him. How
30
is he going to serve subpoenas? . . . No subpoenas served. I haven’t seen one
witness list from him. I’ve got no discovery from him. [¶] Judge, enough is
enough. Please grant the motion.”
When asked if he wished to be heard, defendant explained that he had had a
dispute with his investigator over funding, and that the reason he liked Mara
Feiger but not his other attorneys was that she was the only attorney who had
made progress on his case. He then stated: “I — at this point, I’m kind of, like,
fed up. Whatever y’all want to do. . . . This is your house. I’m burnt out. [¶] But
the — I will say this here. You give this man the case. The man don’t know
nothing about the case. . . . If I have the case, I’m not asking for no continuance.
I’m not asking for . . . you to put it off. As far as our trial date stands now, I am
ready to go to trial. . . . I know my case. I feel I know my case better than any
other attorney to have my case besides Mara Feiger. I feel the only reason I want
to fight my case — I know I’m in over my head, but the only reason I want to fight
my case, because I don’t want to go to trial with somebody like Mr. Gunn that
don’t have no knowledge of the case, and go through arguments like this. . . . So if
you want to take my pro per status, fine. This is your courtroom. Do what you
want to do. I don’t care. But don’t give it to this man. That’s the whole thing
I’ve been fighting. That is why I filed the motion to remove him as standby
counsel, because when he was counsel he ain’t doing nothing.”
When asked by the trial court if he had retained a new investigator,
defendant stated: “No. I do plan on, yes.” The trial court then made the
following findings: “that Mr. Williams has had — and I do not know the number
of Marsden motions. I can’t even count the number of lawyers that he’s had. And
I agree with him, the only one he liked was Ms. Feiger. And I think it was
probably for the reason, as Mr. Ruiz said, because she was — as a trial attorney,
she was a hand-holder for defendants. And that’s what Mr. Williams has been
31
looking for all along, somebody that will come through here anytime he wants to
be seen. [¶] I find that I agree with Mr. Williams, he’s in over his head. And that
all of these have been delay tactics. And I’m going to remove him from his pro
per status. And Mr. Gunn has become the lead attorney.”
On July 30, 2001, the date set for trial, Gunn represented to the trial court
that the defense required an additional 30-day continuance because he needed
more time to prepare for trial. When asked if he would agree to a continuance,
defendant stated: “I don’t agree to nothing.” Finding that there was a “15-court
day waiver beyond today’s date,” the trial court continued the matter to August 10,
2001. On August 10, 2001, the trial court found good cause to continue the matter
until August 20, 2001.
On August 20, 2001, Gunn declared a conflict because of the pending
lawsuit filed by defendant. Gunn also cited communication problems and
defendant’s failure to cooperate with defense preparations. The trial court said:
“[I]t’s another way of him delaying this trial by suing you. [¶] Next thing, Mr.
Cormicle is going to be sued for malpractice. Where does it end?” But Gunn
informed the court that “Mr. Williams does cooperate with Mr. Cormicle” and
“[w]ill communicate with him, cooperate in his defense,” and that the breakdown
appeared specific to the relationship between defendant and Gunn. The trial court
therefore relieved Gunn and appointed Cormicle as lead counsel. Finding good
cause, and without a time waiver from defendant, the trial court granted
Cormicle’s request to continue the trial date and set a trial readiness conference for
September 20, 2001. On September 20, 2001, Cormicle requested a continuance
because he was having difficulties securing investigative funds on behalf of the
defense. Defendant refused to waive time. Finding good cause for a continuance,
the trial court continued the trial to March 4, 2002.
32
During a January 23, 2002, trial readiness conference, Cormicle requested a
trial continuance because he had yet to receive some federal documents that he
had subpoenaed regarding bank robberies committed by victim Gary Williams.
Defendant waived time, and the trial was continued to April 8, 2002.
A hearing set for March 8, 2002, was postponed for a week at the request of
the prosecutor. On March 15, 2002, the prosecutor requested an additional two-
week continuance to give him “time to finish [another] jury trial.” The trial court
granted the request.
On March 29, 2002, the trial court heard and denied defendant’s eleventh
Marsden motion. The trial court told defendant that “[p]art of the reason this case
is old” is that “[w]hen the case gets ready for trial and gets near the time for trial,
we fire a lawyer or we represent ourselves . . . .” Later that same day, Cormicle
requested a continuance of the trial date. Cormicle said that the FBI had granted
him access to its files four days earlier regarding 15 separate bank robberies
committed by Gary and his associates, and that he needed more time to review
these materials. Defendant waived time, and the trial court continued the matter
until June 10, 2002.
On April 23, 2002, Cormicle represented to the trial court that he was “still
receiving additional reports, significant reports, that should have been turned over
seven years ago but were not.” Specifically, Cormicle indicated that he had only
recently received “a four-page report from the FBI that was in the possession of
the district attorney pertaining to Robert Scott.” According to Cormicle, the report
contained statements that were inconsistent with Scott’s prior statements and
identified witnesses that had not previously been identified. In response, the
prosecutor claimed that “[t]he problem with why that was not turned over earlier is
because of the revolving door of defense attorneys” who failed to “follow
through” with discovery. He also claimed that the new material was
33
“independently obtainable by defense counsel.” Cormicle responded that the
prosecution had an obligation to turn over the material under Brady v. Maryland
(1963)

373 U.S. 83

(Brady) and that “there had been a demand for reports from
my client during the time that he was pro per.”
During an ex parte hearing held on April 25, 2002, Cormicle represented
that he had “basically started from scratch” because “nothing had been done for
the past six years . . . .” He also said he had recently come across a one-page
document titled “Gary and 100 bandits” that “was an outline of . . . 15, 16, or 17
bank robberies that Gary Williams was believed to have orchestrated and
organized.” The defense had only recently received about “700 pages” of
information regarding these prior bank robberies and the associates of Gary
Williams who may have had reason to rob or kill him. Cormicle also clarified that
the four-page document he had referred to two days earlier was a “proffered
statement” from Robert Scott “where he’s presumably looking to cut a deal with
the US Attorney.”
On May 1, 2002, Cormicle requested that trial be continued until August
2002 in order to give him time to explore issues regarding third-party liability and
complete his investigation. At the request of the prosecutor, Conya L. addressed
the trial court and explained that she felt threatened and wanted to “get this out of
the way.” The prosecutor urged the court to reject any further requests for delay
and argued that defendant or his counsel had successfully manipulated the pretrial
process over the past six years. The prosecutor asked the court to consider “the
length to which Mr. Williams will go to thwart your will and break your will, that
this case ever get to trial.” The court responded: “Mr. Ruiz, he’s not going to
break my will,” and “I don’t like lawyers insinuating that any defendant’s going to
control what I do.” When the prosecutor pushed back and suggested that the court
had not sufficiently challenged the reasons given by defense counsel for seeking
34
continuances over the past six years, the trial court said: “You’re wrong. I’m
telling you that you’re wrong so move on to something else.” Noting that the
pretrial history of the case read “like a horror story as far as delays,” the trial court
then continued the trial date to July 1, 2002, over the prosecutor’s objection.
Defendant agreed to waive time.
The trial court heard and denied defendant’s twelfth Marsden motion on
June 7, 2002. Jury selection began on July 1, 2002.
2. Analysis
The Sixth Amendment to the United States Constitution guarantees that
“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . .
trial.” “[T]he right to a speedy trial is ‘fundamental’ and is imposed by the Due
Process Clause of the Fourteenth Amendment on the States.” (Barker v. Wingo
(1972)

407 U.S. 514

, 515 (Barker), quoting Klopfer v. North Carolina (1967)

386 U.S. 213

, 223.) The speedy trial guarantee “is an important safeguard to prevent
undue and oppressive incarceration prior to trial, to minimize anxiety and concern
accompanying public accusation and to limit the possibilities that long delay will
impair the ability of an accused to defend himself.” (United States v. Ewell (1966)

383 U.S. 116

, 120.)
In Barker, the high court explained that the Sixth Amendment right to a
speedy trial “is generically different from any of the other rights enshrined in the
Constitution for the protection of the accused” in several important ways. (Barker,

People v. Williams , 58 Cal. 4th 197 ( 2013 )

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