U.S. v. Stubbs
| Citation | 281 F.3d 109 |
| Decision Date | 14 February 2002 |
| Docket Number | No. 00-4342.,00-4342. |
| Parties | UNITED STATES of America, v. Charles STUBBS, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Adam B. Cogan (Argued), Greensburg, PA, Attorney for Appellant.
Marc I. Osborne (Argued), Washington, DC, Attorney for Appellee.
Before SLOVITER, McKEE, Circuit Judges and HAYDEN,* District Judge.
Charles Stubbs appeals his conviction for robbery and related offenses based upon several claims of error including the legality of his warrantless arrest, and the adequacy of his purported waiver of trial counsel. Inasmuch as we agree that the waiver colloquy was not sufficient to insure a proper waiver of the Sixth Amendment right to counsel, we will reverse and remand for a new trial.
On October 5, 1999, FBI agents received a tip from a confidential informant that Larry Brown and Walter Baynes were planning to rob a bank the next day. The same informant had previously told the FBI that Brown had robbed the PNC Bank on Frankstown Road in Penn Hills, Pennsylvania two weeks earlier. That robbery was "takeover" style, where the perpetrators went behind the counters and took cash from bank tellers' drawers.
Based on this information, agents placed Brown under surveillance. On the morning of October 6, agents saw two men arrive at Brown's house. One arrived in a tan Dodge, and the other arrived in a blue Chevrolet. Both men left in the tan Dodge along with Brown. Agents followed the Dodge to the same strip mall where the PNC Bank robbery had occurred on Frankstown Road two weeks earlier. They saw the Dodge "square" the block (drive all the way around), and then leave the area and travel to another shopping mall containing a number of banks.
The next morning, October 7, two men again arrived at Brown's house. This time the three men left in the blue Chevrolet. Once again agents followed as the men drove to the mall containing the PNC Bank. The agents observed Brown as he left the car and went into a drugstore in the mall. He looked into the bank upon entering and leaving the drugstore. The three men then left the strip mall and parked in a nearby cemetery for a few minutes. They then drove back to the strip mall and once again "squared" the block. The Chevrolet was next seen in the parking lot of the Squirrel Hill PNC Bank. The agents continued their surveillance as the Chevrolet left that parking lot and returned to the parking lot in the Frankstown Road mall. Agents then saw the passenger in the back seat pull a ski mask over his head. After a few minutes, the three men drove to another PNC Bank in the Great Valley Shopping Center. There, two of the men got out of the car, walked toward the bank, but then turned around.
Agents lost track of the car at 1:23 p.m. in Wilkinsburg. However, at 1:46 p.m. a radio dispatch notified the agents that a Dollar Bank in the Monroeville Miracle Mile Shopping Center had just been robbed. The dispatch said that the crime was committed by three males wearing ski masks and carrying handguns, and was a "takeover" robbery. Witnesses said that the robbers placed the money in a Kaufmann's shopping bag.
The agents concluded that Brown and his companions had robbed that bank after they lost sight of them, and the agents proceeded to Brown's house to await his return. The blue Chevrolet did return to Brown's home shortly after 2 p.m. Larry Brown, Jasper Stubbs, and the defendant, Charles Stubbs, were in the car. Agents immediately arrested the three men without a warrant, and then conducted a warrantless search of the car. They found a Kaufmann's shopping bag containing currency, ski masks, gloves, and handguns. Stubbs was thereafter formally charged with the Dollar Bank robbery, and counsel was appointed to represent him. Before trial, the cases against the three men were severed.
Stubbs began his trial represented by a court appointed attorney. However, about halfway through Stubbs' defense case, and after the prosecution had rested its case-in-chief, Stubbs asked to represent himself for the remainder of the trial. After a brief discussion, the trial judge agreed, and the trial proceeded with Stubbs representing himself. Not surprisingly, the jury convicted him of all five of the counts in the indictment, and the court subsequently sentenced him to a total of 562 months incarceration. This appeal followed.
Although Stubbs makes numerous arguments on appeal, the only one that we need to address at length involves his purported waiver of counsel.1 Stubbs argues that his waiver of counsel was not knowing and intelligent as required by the Sixth Amendment. We agree.
Although Stubbs was represented by appointed counsel throughout most of the trial, he informed the court of his dissatisfaction with counsel and asked permission to represent himself before the trial ended. His request prompted the following exchange:
The Defendant: Yes, Your Honor. Things that I have been telling my lawyer to try to accomplish here, he's not done. As of now, I feel as though my lawyer is ineffective and I wish to represent myself for the remainder of this trial.
The Court: So what you're asking is that you be allowed to testify without examination from Mr. Cogan and then give your closing statement?
The Defendant: Excuse me?
The Court: I guess what you're asking me to allow you to do is to testify without Mr. Cogan questioning you — of course, you would be subject to cross examination —
The Defendant: No, I'm going to do my own thing.
The Court: Well, your own thing has to be within the confines of the trial procedures. If you want to —
The Defendant: I am going to represent myself as of now.
The Court: Okay. Let me explain what's left in the trial. What's left in the trial is your testimony or any other witness you might have here to call and the closing arguments. That's all that's left in the trial.
The Defendant: No, there's evidence that I want to admit.
The Court: Well, if it's admissible, certainly it can be offered and the Government can object to it and I'll make rulings.
The Defendant: Thank you.
The Court: But before we continue, Ms. Kelly, do you have anything to say about this?
[The Prosecutor]: Well, I would just like to say that I think Mr. Cogan has been representing Mr. Stubbs quite well; and that if he's now decided that he no longer wants Mr. Cogan to represent him, then I think maybe the Court should advise him of the consequences of that, although they are pretty obvious, and go from there.
The Court: Well, maybe I'm leaving some things out, but you know you are entitled to be represented by an attorney. You understand that?
The Defendant: Yes I do. And I also know that I'm entitled to represent myself if I wish to.
The Court: You understand that if you make this decision, anything you do is subject to objection by counsel, and that if that objection is well taken, I might grant that objection. And that you are only entitled, as I have said several times, to represent yourself in accordance with the Rules of Criminal Procedure, the Rules of Evidence, and the Rules of Court as they pertain to this case. You can't do whatever you want to do if it is not legally permissible, if evidence is not legally admissible or legally competent. Do you understand that?
The Defendant: No, not really.
The Defendant: That's why I said I want to enter this stuff in evidence because there was just a bunch of lies told there was just simply a bunch of lies told.
The Court: Well, that's not for me to decide, for you to decide, or for the Government to decide. That's for the jury to decide.
The Defendant: Exactly, that's what I am saying. I have documentations [sic] that say they lied.
The Court: Ms. Kelly, I don't know, I agree that Mr. Stubbs should be aware of the consequences of representing himself because you don't know, as you have admitted, the Rules of Evidence, the Rules of Procedure. I'm not really sure if there's anything else that the Government feels that he should be told. And if there is, please let me know. I am not really sure either whether or not I can tell Mr. Stubbs that he can't represent himself. I don't think I can say that. But certainly I can say this: That the Government's evidence is already in. The evidence of Mr. Moses is already in. The only possible part of the trial would be your testimony, which you would have to testify under oath if you choose to testify. You are not required to testify. You are not required to do or prove anything on your behalf because it's the Government's burden to prove that you are guilty beyond a reasonable doubt. But if you do testify, do you understand that you are subject to cross-examination by the Government's attorney?
The Defendant: There is no reason for me to testify if I'm representing myself. I can tell the jury what I want them to know from my own mouth.
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