U.S. v. Midgett
| Decision Date | 04 September 2003 |
| Docket Number | No. 01-4674.,01-4674. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Paul Dameron MIDGETT, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
ARGUED: Charles Robinson Brewer, Asheville, North Carolina, for Appellant.
Kenneth Michel Smith, Assistant United States Attorney, Charlotte, North Carolina, for Appellee.
ON BRIEF: Robert J. Conrad, Jr., United States Attorney, Charlotte, North Carolina, for Appellee.
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Vacated and remanded by published opinion. Judge TRAXLER wrote the opinion, in which Judge KING and Judge GREGORY joined.
In November 2000, Paul Dameron Midgett was convicted of damaging a vehicle by means of fire and injuring another thereby in violation of 18 U.S.C.A. § 844(i) (West 2000), bank robbery in violation of 18 U.S.C.A. § 2113(a) (West 2000), and threatening a bank teller with gasoline in the course of a bank robbery in violation of 18 U.S.C.A. § 2113(d) (West 2000). He received life sentences on all three convictions under the federal "three strikes" law. See 18 U.S.C.A. § 3559(c) (West 2000). Because the court erred in forcing Midgett to choose between his right to a lawyer and his right to testify on his own behalf, we vacate and remand for a new trial.
In October 1999, J.W. Shaw, Jr., was eating lunch in his van at a worksite in Mecklenburg County, North Carolina, when a man approached him with a cup of gasoline, threw it in his face, and demanded his money. After Shaw gave the man his billfold, the assailant ignited the gasoline with a lighter, inflicting burns to Shaw's face, neck, ears, and hands. In November 1999, Paul Midgett and Theresa Russell were charged with this crime (Count One), as well as with using a similar technique later the same day to rob a bank in Union County, North Carolina (Counts Two and Three). Russell eventually agreed to cooperate with the government; Midgett decided to go to trial.
From the outset, Midgett and his lawyer appear to have been at odds. Before trial began, Midgett's lawyer moved to withdraw because of disagreements with his client as to how to proceed. Among other matters, Midgett complained about his lawyer's degree of preparation and his unwillingness to pursue certain issues to Midgett's satisfaction — including a "third person" defense Midgett sought to offer in relation to the Count One crime. Midgett steadfastly maintained to his lawyer that a friend of Russell was driving around with the two of them at the time they encountered Shaw. According to Midgett, it was Russell's friend, and not Midgett, who had committed the assault on Shaw, while Midgett lay in a drug-induced sleep in the back of the vehicle. Midgett was prepared to offer this testimony himself, but his lawyer did not want Midgett to take the stand because he did not believe Midgett's version of events.
Notified of problems emerging between client and attorney prior to trial, the court conducted a hearing and determined that there was no reason justifying withdrawal, Midgett's counsel having demonstrated due diligence in planning and preparing for trial. For the first of several times, the court offered Midgett the choice of proceeding on his own or continuing with his lawyer. Midgett remarked that "there's no way I could do it myself," J.A. 55, and so his lawyer remained. The next day, before the jury was impaneled, the court asked Midgett whether he intended to testify, to which Midgett replied, "We haven't made a decision yet and I really — to be honest, my lawyer really doesn't want me, but I kind of wanted to, but we haven't made a decision yet." J.A. 69. Trial began and several government witnesses testified, from whom defense counsel was able on cross-examination to bring out certain facts helpful to Midgett. For example, Midgett's lawyer elicited that Shaw had not been able to identify Midgett in a photographic lineup and that another witness to the attack on Shaw had described the culprit to investigators as a tall individual (Midgett being relatively short).
Later that day, after a private conference with Midgett, his lawyer announced to the court that he "must pursuant to the rules of professional conduct move to withdraw." J.A. 138. The judge and Midgett's counsel then left the courtroom for what appears to have been an off-the-record discussion which neither Midgett nor the government attorney attended.1 When they returned, the court addressed Midgett:
[Y]our attorney explains to me that you are requesting him to offer evidence and present a defense which he does not intend to offer and considers improper to make ... and has so advised you, but you nevertheless insist that you are going to offer the defense, whatever it is, if he doesn't.... I have told him that I will give you the option of proceeding without an attorney from this point or continuing in his representation.... So you better talk with [him] and let me know if you want him to continue to represent you or if you want him to step aside and we'll continue the trial.
J.A. 139, 140. Midgett ultimately responded that J.A. 141-42. The court instructed Midgett's counsel to describe in an affidavit filed under oath and under seal with the court his reasons for declining to offer the defense proposed by Midgett.2 The government then continued its case, during which defense counsel subjected Midgett's co-defendant Theresa Russell to cross examination as to the favorable plea agreement she expected in exchange for her testimony against Midgett.
The following day, after the government rested its case and Midgett's motion for acquittal was denied, the court asked whether the defense had evidence to present. Again, Midgett's lawyer raised the issue of his conflict with his client. Defense counsel stated that he had repeatedly recommended to Midgett that testifying was not in his best interests. At the court's prompting, Midgett's lawyer further asserted that
I indicated to you in chambers that I felt I needed to withdraw because I was duty bound to make that motion, and you directed me to tell you why, and at that point I indicated that it is my belief that Mr. Midgett is going to offer information when he testifies that is not in any way truthful or in existence that I can determine from any source.... [A]nd based on what has been represented to me and I understand is about to happen if and when he takes the stand, I am duty bound to move to withdraw at this point. I can say that the issue relates to whether or not a third person was at the scene at the time of the destruction incident when Mr. Shaw was burned, a third person actually did the act. And I have investigated that, I have asked for an identity from this supposed person. I have asked the co-defendant directly whether this person exists.... There's nothing whatsoever that I can find to corroborate any such representation.
J.A. 297-98. Rather than permitting his lawyer to withdraw, the court offered Midgett the choice of either acceding to defense counsel's refusal to put him on the stand or representing himself without further assistance of counsel. Midgett repeated that he did not "feel ... qualified to [represent himself] ... I'm saying I want to [take the stand], but I can't." J.A. 300. In response, Midgett's lawyer told the court:
I don't think he's being denied his right to testify. He's got a choice here today what he wants to do. He knows the parameters. I have asked him a number of times to give me the name or a way to find this person, and he can't do it and no one else corroborates it.
J.A. 301. The court agreed, stating that "if the defendant chooses to take the witness stand, I will permit [him] to withdraw." J.A. 302. Midgett responded: "I say again, Your Honor, I want to take the witness stand, but I can't because I can't do it without counsel." J.A. 302. The court finally told Midgett that
if there is any problem with your taking the stand and not being able to take the stand because of your wanting to bring before the jury an issue that doesn't exist and for which you have absolutely no evidence to offer other than your own testimony, ... the court is of the opinion that any resulting problem is a problem of your own making, and the trial will not be further delayed.... The time has come that we're going to finish the case, and you and the appellate courts may take it from there.
J.A. 303. Midgett declined to testify and his lawyer offered no other evidence. In his closing statement, defense counsel referred to various weaknesses and inconsistencies in the statements of certain witnesses, including Theresa Russell's motive to give testimony favorable to the government and Shaw's inability to identify Midgett in the photographic lineup. The jury took little time to convict Midgett on all three counts.
After trial the court granted defense counsel's motion to withdraw, stating that:
It was clear throughout the course of the trial that [Midgett] repeatedly conferred with counsel and was satisfied with counsel's performance except as it related to ... [the] defense that a third party was responsible for the crime charged in Count One, when counsel's thorough investigation and the overwhelming evidence indicated the guilt of the Defendant and no one else.
J.A. 372. New counsel was appointed and immediately filed a motion for new trial, which was denied; several further motions for new trial were subsequently filed and denied in turn. This appeal by new counsel followed.
Midgett raises several issues on appeal. In particular, he claims that the district court erred in conditioning his right to counsel on his waiver of his right to testify. It is to this issue that we now turn.3
The question of what a lawyer should do when...
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