465 U.S. 168 (1984), 82-1135, Mckaskle v. Wiggins

Docket Nº:No. 82-1135.
Citation:465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122
Party Name:Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Petitioner, v. Carl Edwin WIGGINS.
Case Date:January 23, 1984
Court:United States Supreme Court

Page 168

465 U.S. 168 (1984)

104 S.Ct. 944, 79 L.Ed.2d 122

Dan V. McKASKLE, Acting Director, Texas Department of Corrections, Petitioner,


Carl Edwin WIGGINS.

No. 82-1135.

United States Supreme Court.

Jan. 23, 1984

Argued Nov. 9, 1983.

[104 S.Ct. 945] Syllabus[*]


At his state robbery trial, respondent was permitted to proceed pro se, but the trial court appointed standby counsel to assist him. Before and during the trial, respondent frequently changed his mind regarding the standby counsel's role, objecting to counsel's participation on some occasions but agreeing to it on other occasions. Following his conviction, respondent unsuccessfully moved for a new trial on the ground that his standby counsel had unfairly interfered with his presentation of his defense. After exhausting direct appellate and state habeas corpus review, respondent filed a habeas petition in Federal District Court, claiming that standby counsel's conduct deprived him of his right to present his own defense, as guaranteed by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562. The District [104 S.Ct. 946] Court denied the petition, but the Court of Appeals reversed, holding that respondent's Sixth Amendment right of self-representation was violated by the unsolicited participation of overzealous standby counsel.

Held: Respondent's Sixth Amendment right to conduct his own defense was not violated, since it appears that he was allowed to make his own appearances as he saw fit and that his standby counsel's unsolicited involvement was held within reasonable limits. Pp. 949 - 956.

(a) The Counsel Clause of the Sixth Amendment implies a right in the defendant to conduct his own defense, with assistance at what is his, not counsel's, trial. Here, the record reveals that respondent was accorded the rights of apro se defendant to control the organization and conduct of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial. Pp. 949 - 950.

(b) The objectives of affirming a pro se defendant's dignity and autonomy and of allowing the presentation of what may be his best possible defense can both be achieved without categorically silencing standby counsel. In determining whether a defendant's Faretta rights have been respected, the primary focus must be on whether he had a fair chance to present his case in his own way. Such rights, however, do impose limits on the extent of standby counsel's unsolicited participation.

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First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury, and, second, standby counsel's participation without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself. Pp. 950 - 951.

(c) The appearance of a pro se defendant's self-representation will not be undermined by standby counsel's participation outside the jury's presence. In this case, most of the incidents of which respondent complains occurred when the jury was not in the courtroom, and, while some of those incidents were regrettable, counsel's participation fully satisfied the first limitation noted above. Respondent was given ample opportunity to present his own position to the court on every matter discussed, and all conflicts between respondent and counsel were resolved in respondent's favor. Pp. 951 - 953.

(d) It is when standby counsel participate in the jury's presence that a defendant may legitimately claim that excessive involvement by counsel will destroy the appearance that the defendant is acting pro se. Nevertheless, a categorical bar on counsel's participation is unnecessary. Here, where respondent's pro se efforts were undermined primarily by his own changes of mind regarding counsel's role, it is very difficult to determine how much of counsel's participation was in fact contrary to respondent's desires. If a defendant is given the opportunity and elects to have counsel appear before the court or a jury, his complaints concerning counsel's subsequent unsolicited participation lose much of their force. Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced. Pp. 953 - 954.

(e) A defendant's Sixth Amendment rights are not violated when a trial judge appoints standby counsel--even over the defendant's objection--to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of his achievement of his own clearly indicated goals. At respondent's trial a significant part of standby counsel's participation involved such basic procedures, and none interfered with respondent's control over his defense or undermined his appearance before the jury in the status of a pro se defendant. P. 954.

[104 S.Ct. 947] (f) Aside from standby counsel's participation that was either approved by respondent or attendant to routine clerical or procedural matters, counsel's unsolicited comments in front of the jury were not substantial or frequent enough to have seriously undermined respondent's

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appearance before the jury in the status of representing himself. Pp. 954 - 956.

681 F.2d 266 (CA5, 1982), reversed.


Leslie A. Benitez, Assistant Attorney General of Texas, argued the cause for petitioner. With her on the brief were Jim Mattox, Attorney General, David R. Richards, Executive Assistant Attorney General, and Nancy M. Simonson, Assistant Attorney General.

Craig Smyser, by appointment of the Court, 460 U.S. 1035, argued the causepro hac vice and filed a brief for respondent. Respondent filed a brief pro se.

Leslie A. Benitez, Austin, Tex., for petitioner.

Craig Smyser, Houston, Tex., for respondent, pro hac vice, by special leave of Court.


Justice O'CONNOR delivered the opinion of the Court.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), this Court recognized a defendant's Sixth Amendment right to conduct his own defense. The Court also held that a trial court may appoint "standby counsel" to assist the pro se defendant in his defense. Today we must decide what role standby counsel who is present at trial over the defendant's objection may play consistent with the protection of the defendant's Faretta rights.


Carl Edwin Wiggins was convicted of robbery and sentenced to life imprisonment as a recidivist. His conviction was set aside because of a defective indictment. When Wiggins was retried he was again convicted and sentenced to life imprisonment. Standby counsel were appointed to assist Wiggins at both trials. Wiggins now challenges counsel's participation in his second trial.

Prior to the first trial, a hearing was held on Wiggins' motion to proceed pro se. The court granted the motion, R. 4a, but simultaneously appointed two attorneys to act

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as standby counsel. Wiggins initially objected to their presence. R. 11a. Shortly thereafter, however, counsel asked Wiggins how they should conduct themselves at trial, and Wiggins expressly requested that they bring appropriate objections directly to the attention of the court, without first consulting him. R. 37a. After the trial, newly appointed counsel discovered that the original indictment was defective, and a new trial was granted.

On April 16, 1973, about two months before the second trial began, Wiggins filed a request for appointed counsel, stating that he wished to rescind his earlier waiver of counsel. App. 54-55. 1 The next day Wiggins filled out and signed a form captioned "Petition for Appointment of Counsel and Order Thereon." 2 The trial court appointed Benjamin Samples. About a month later Wiggins filed an additional request for counsel. 3 Five days later Wiggins

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filled out another appointment of counsel form, and the trial court appointed R. Norvell Graham.

[104 S.Ct. 948] Wiggins' wishes respecting appointed counsel remained volatile as his second trial approached. When pretrial proceedings began on June 4, 1973, Wiggins announced that he would be defending himself pro se; he then firmly requested that counsel not be allowed to interfere with Wiggins' presentations to the court. R. 8, 12, 39-40. Wiggins reaffirmed his desire to proceed pro se on the following morning, June 5, and objected even to the court's insistence that counsel remain available for consultation. R. 66-67. The trial began later that day, and shortly thereafter Wiggins interrupted his cross-examination of a witness to consult with Graham off the record. R. 201. Still later, Wiggins expressly agreed to allow Graham to conduct voir dire of another witness. R. 210.

Wiggins started the next day of trial, June 6, with a request that the trial not proceed in Samples absence from the courtroom. R. 255. Later that morning Wiggins requested that counsel not be allowed to assist or interrupt, R. 308, but a short while after Wiggins interrupted his own cross-examination of a witness to confer with Samples off the record. R. 310. When the trial reconvened in the afternoon, Wiggins agreed to proceed in Samples' absence. R. 328. After Samples returned, however, Wiggins again interrupted his own cross-examination of a witness to confer with him. R. 333. Later Wiggins insisted that counsel should not initiate private consultations with Wiggins. R. 345-346. Before the end of the day Wiggins once again found occasion to interrupt his own examination of a witness to confer with Samples. R. 384.

On the following day, June 7, Wiggins agreed that Graham would make Wiggins' opening statement to the...

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