Clark, Associate Justice,*fn* Lumbard, Circuit Judge, and Tyler, District Judge.*fn**
Reginald A. Morrissey appeals from a judgment of conviction, following trial before a jury and Judge Rosling in the Eastern District of New York, for robbing a federally insured bank in violation of 18 U.S.C. § 2113(a).
On July 17, 1970, Morrissey entered the Central Savings Bank in Brooklyn. Approaching a teller, Mrs. Joyce Payne, he presented her a note which said, "Don't make any noise. I have a gun pointed at your head. Hand over all your large bills in packs. Thank you." As Mrs. Payne began collecting the money, William Conlon, the bank manager, noticed her apparent agitation and the fact that she was placing bills in a canvas coin bag. Conlon immediately walked toward her teller's post and observed Morrissey as he came near. When Conlon was a few feet from Mrs. Payne, he saw the note passed to her by Morrissey and immediately activated the bank alarm and the surveillance cameras. Morrissey remained in the bank for about 30 seconds after the cameras began to take pictures and then fled with $12,300, leaving the note behind. During this period, three photographs of him were taken.
The police and the FBI arrived at the bank shortly after the holdup. The note was taken to police headquarters where a latent print, later proving to be that of Morrissey's right little finger, was lifted therefrom. The film from the surveillance cameras was developed, and the three photographs, later identified to be pictures of Morrissey, were produced.
Approximately two months after the robbery, the police came to the bank and showed Conlon six photographs, including one of Morrissey. Conlon identified the photograph of Morrissey to be a picture of the robber. Based on the foregoing information, a warrant for Morrissey's arrest was secured and, on February 10, 1971, Morrissey was arrested at his mother's house.
After the arrest, Morrissey was processed at the local police headquarters, where it was determined that he was a drug addict, and then taken to FBI headquarters in Manhattan. He was advised of his Miranda rights, but signed a waiver form and confessed to robbing the bank before FBI agents Campbell and Small. Campbell related the confession at the trial, the substance of which was that Morrissey and one "Jimmy", another drug addict, had determined to rob a bank to get money to pay for drugs. The Central Bank was selected because no guard was on duty. "Jimmy" prepared the note, and Morrissey went into the bank alone, as indicated above. After the robbery, the two men fled the area together.
In addition to the confession, the evidence against Morrissey at trial included the note with his fingerprint on it and in-court identification of Morrissey by Conlon and the three photographs taken by the camera in the bank. Morrissey introduced no evidence on his behalf.
Thus, as he surely was aware, the evidence of Morrissey's guilt was overwhelming.
Morrissey's principal contention on appeal is that his Sixth Amendment right to effective assistance of counsel was denied when the trial judge failed to investigate Morrissey's dissatisfactions with assigned counsel and subsequently ordered appellant to accept assigned counsel or to proceed pro se. After Morrissey's arrest, Edward Kelly of the Legal Aid Society was assigned to represent him, and he was formally arraigned on February 25, 1971. On April 2, 1971, the case was called and was adjourned until April 26, 1971 for trial. On April 26, the case was adjourned to May 10, and on that date it was adjourned for trial on 24 hours notice.*fn1 On September 2, 1971, the case was called and set for trial the next day.
Morrissey, who was in detention because of his inability to make bail, wrote Judge Rosling on April 26, 1971, requesting that new counsel be assigned and asking for a "complete psychiatric evaluation study." In support of his request for change of counsel, Morrissey stated that, "Mr. Kelly and I are unable to understand each other, and he, in my opinion, perhaps burdened by a high case load, does not want or is not able to effectively defend me." Morrissey also claimed that Kelly was unable or unwilling to do background research into his psychiatric background. The request for a study was based on allegations that Morrissey had been the subject of numerous psychiatric evaluations in the past and had undergone psychotherapy at the Brooklyn House of Detention in 1965. The record is barren of any action or answer by Judge Rosling to the foregoing letter; indeed, for ought that appears, the judge may never have received the letter. On May 10, 1971, Morrissey sent to the court a copy of another letter addressed to Edward Kelly authorizing him tto be given access to any of defendant's psychiatric or medical records.
On September 3, 1971, the case was called for trial and the process of selecting jurors from a panel was begun. Morrissey interrupted the proceedings and renewed his request for change of counsel. He alleged that assigned counsel, Edward Kelly, had not met with him, thus depriving counsel and client of the opportunity to prepare a proper defense. More specifically, Morrissey asserted that Kelly failed to make important pre-trial motions,*fn2 exhibited little interest in the case and had not located or talked to alibi witnesses. Kelly, to the extent he was afforded time to do so, directly contradicted some of Morrissey's statements; he was not given time to answer all of defendant's claims, nor did the judge probe the issues very extensively. In any case, acquiescing to Morrissey's desires, Kelly did ask that he be relieved as counsel. Judge Rosling denied the motion for change of counsel, apparently on the theory that it was a maneuver to delay the trial, a conclusion not entirely without support from the record as it then was known to the judge.*fn3 Offered a choice by the trial judge of representing himself with assigned counsel acting in an advisory capacity or continuing with assigned counsel, Morrissey chose the former.*fn4 The trial was adjourned with selection of the jury to continue on September 7, 1971 after the Labor Day recess.
On September 7, 1971, trial resumed, and Morrissey at once renewed his request for new counsel to be assigned and a continuance to effectuate the request. His allegations were substantially the same as on September 3, with the additions of his statement that "the last time I have seen Mr. Kelly was in April, I believe", and his allegation that counsel had failed to comply with a request to make an application for bail reduction. The motion was again denied. Morrissey also renewed his motion for a psychiatric examination, this time pursuant to a specific statutory section, 18 U.S.C. § 4244. In addition to alleging a psychiatric history which was enunciated in his letter to Judge Rosling of April 26, Morrissey stated athat he had a history of narcotics addiction. The court was informed that efforts of Mr. Kelly to locate alleged psychiatric records at the Brooklyn House of Detention were unsuccessful because such records had been destroyed in the "riots" at that institution. The motion was denied, without prejudice to renewal if it should appear during the trial that Morrissey was not competent to assist in his own defense or understand the proceedings against him.
The original panel of jurors, including those jury members selected from the panel on September 3, were dismissed. A new jury was impaneled, pre-trial suppression hearings were then conducted on September 7th and the morning of the 8th, out of hearing of the panel. Upon completion of those hearings, Judge Rosling ruled that defendant's confession was voluntary but reserved decision on the issue of bank manager Conlon's pre-arrest identificationn of Morrissey. As previously mentioned, the judge at trial did permit Conlon's ...