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McKee v. Harris

decided: May 28, 1981.

THOMAS MCKEE, PETITIONER-APPELLANT,
v.
DAVID HARRIS, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, STORMVILLE, NEW YORK, RESPONDENT-APPELLEE .



Appeal from a judgment of the United States District Court for the Southern District of New York (Sweet, J .) denying appellant's petition for a writ of habeas corpus on the basis of alleged Sixth Amendment violations in the course of his state trial. Affirmed.

Before Oakes and Meskill, Circuit Judges, and Werker, District Judge.*fn*

Author: Meskill

Thomas McKee appeals from a judgment of the United States District Court for the Southern District of New York, Sweet, J., denying his petition for a writ of habeas corpus. In his petition to the district court, McKee raised a host of claims,*fn1 the most serious of which was that he had been denied his Sixth Amendment right to counsel. The petition was referred to Magistrate Kent Sinclair, who concluded that McKee's Sixth Amendment rights had been violated and recommended that the writ be granted.*fn2 Judge Sweet, after an extensive review of the record, declined to adopt the magistrate's recommendation and refused to grant the writ.*fn3 The decision below is reported at 485 F. Supp. 866. Shortly thereafter the district court granted McKee's application for a certificate of probable cause. On this appeal, McKee raises only the Sixth Amendment claim. For the reasons stated below, we affirm.

BACKGROUND

McKee was arrested and indicted in the late summer of 1975 for possession and sale of a controlled substance. Attorney Richard Occhetti of the New York Legal Aid Society was appointed to represent the defendant. Occhetti, who had already represented McKee in a related case, began the process of impanelling a jury. McKee, however, under circumstances set forth below, rejected Occhetti's assistance and, after failing to persuade the court to appoint new counsel, chose to represent himself with the assistance of a "legal advisor." The defendant was convicted on May 5, 1976 and was subsequently sentenced to an indeterminate term of seven years to life imprisonment. The Appellate Division unanimously affirmed, People v. McKee, 64 A.D.2d 873, 406 N.Y.S.2d 943 (1st Dep't 1978), and the Court of Appeals denied leave to appeal, People v. McKee, 46 N.Y.2d 842, 414 N.Y.S.2d 1035, 386 N.E.2d 1099 (1978). Shortly after he began serving his sentence*fn4 McKee filed the habeas corpus petition which is the subject of this appeal.

On the morning of the second day of jury selection, a Friday, the following exchange took place between New York Supreme Court Justice Dorothy Cropper and McKee:

THE COURT: Mr. McKee, I understand you wish to make an application. Stand up and make it.

THE DEFENDANT: Your Honor, the attorney here already said when I first come in here, him and the District Attorney had already deliberating on my case, telling me that I am already guilty before I even get a trial, so if they say that to me, I don't need him, he can go and join the D.A. I don't need him to defend me. Just have him over there with him, because I don't need nobody like that.

THE COURT: Mr. McKee, are you saying that you want to represent yourself?

THE DEFENDANT: I am not a fool. No, I don't want to represent myself. I want a lawyer, but I don't want him.

THE COURT: You mean you want the Court to assign you another lawyer?

THE DEFENDANT: Assign me another lawyer, but not this guy here.

THE COURT: That application is denied.

McKee, however, would not acquiesce in the court's resolution of his request. When Mr. Occhetti attempted to resume his representation of the defendant, McKee interrupted and the following heated colloquy ensued:

THE DEFENDANT: He is not representing me and I won't let him speak on my case. He cannot speak on my case. We will have no representation at all.

THE COURT: I have told you to be quiet and listen to what the Court has to tell you. Now, kindly listen to the ...


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