Brown v. Wainwright

• Decision Date: 11 January 1982
• Docket Number: No. 78-2532,78-2532
• Citation: 665 F.2d 607
• Parties: Willie James BROWN, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Etc., Respondent-Appellee. . *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 607

665 F.2d 607

Willie James BROWN, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Etc., Respondent-Appellee.

No. 78-2532.

United States Court of Appeals Fifth Circuit. ^*

Jan. 11, 1982.

Baya Harrison, III (CT.-APPTD.) Tallahassee, Fla., for petitioner-appellant.

Glenn H. Mitchell, Stewart J. Bellus, Asst. Attys. Gen., West Palm Beach, Fla., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, BROWN, AINSWORTH ^**, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A. CLARK, WILLIAMS and GARWOOD, Circuit Judges.

RONEY, Circuit Judge:

Defendant Willie James Brown, convicted in state court for murder, seeks federal habeas corpus relief on the ground he was denied the right to represent himself at trial. The district court denied relief, finding that although the defendant had notified the court prior to trial he preferred to represent himself, he later waived his right by permitting appointed counsel to conduct the defense and by not reasserting a desire to represent himself until late in the trial. A panel of this Court reversed. 644 F.2d 337 (5th Cir. 1980). The panel decision was vacated upon the grant of a rehearing en banc. We now affirm the denial of habeas corpus relief.

The Court took this case en banc to examine the conditions under which a defendant may be considered to have waived the right of self-representation. We particularly consider whether a state trial court has an obligation to inquire of defendant personally if he still maintains his request to represent himself, even though the court is informed by defense counsel that he and defendant have worked out their differences.

The Facts

The factual background is important to the resolution of this case. It was developed largely at a hearing before the district court, at which testimony was heard from defendant, his counsel during the state proceedings, and the judge who presided over the state trial.

On July 8, 1974, defendant was arraigned in a Florida court for second degree murder. Defendant pled not guilty and an Assistant Public Defender was appointed by the court to represent him.

Defendant was apparently not satisfied with his counsel, and informed counsel that he preferred to represent himself. Accordingly, on July 17, counsel filed a Motion for Leave to Withdraw, in which he stated that defendant did not want his services, and "knowingly and intelligently" waived his right to counsel. At about this same time, defendant wrote one or more letters to the judge indicating his desire to proceed pro se.

A hearing on the motion was held on July 26, at which defendant was present. Although no transcript was made of this hearing, the judge recalled he was reluctant to grant the motion because of doubts over defendant's ability to conduct his own defense. He deferred a ruling on the motion and asked counsel to see whether the differences between him and his client could be worked out.

Either at the hearing or at some later point, counsel informed the court that he and defendant had resolved their difficulties. He also stated that defendant informed him he had changed his mind and wanted counsel to continue his representation. The court therefore either denied the motion to withdraw or considered it abandoned. While no denial was entered on the record, defendant testified a formal ruling was made during a hearing on September 16, one day prior to trial.

Between the time of the initial hearing on the motion in July and the beginning of trial in September, defendant did not indicate to the court or to counsel either formally or informally that he still desired to represent himself. He concedes he told counsel to "stay on" as his lawyer, although he argues he made this statement only after his request to represent himself was denied. In any event, defendant worked closely with counsel and an investigator in the preparation of a defense.

Defendant did not renew his request to represent himself until the third day of trial, after all evidence was in and just before closing arguments. This request was denied.

Defendant was found guilty by the jury and sentenced to twenty years. The conviction was affirmed on appeal, and other available state remedies were properly exhausted. Defendant has since been released on parole.

1. The Right of Self-Representation and Its Waiver

The seminal decision on the right of self-representation is Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), decided after the trial in this case. In Faretta, the Supreme Court held a defendant in a federal or state criminal trial has a right under the Sixth and Fourteenth Amendments to proceed without counsel when he elects to do so. This Court has held that a right of self-representation was recognized in this Circuit prior to Faretta, and therefore the issue of Faretta's retroactive application need not be considered. See Scott v. Wainwright, 617 F.2d 99 (5th Cir. 1980), cert. denied, 449 U.S. 885, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980); Chapman v. United States, 553 F.2d 886 (5th Cir. 1977).

The right of self-representation entails a waiver of the right to counsel, since a defendant obviously cannot enjoy both rights at trial. Because of the important and well-recognized benefits associated with the right to counsel, see, e. g., Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 52 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it is preeminent in the sense the right attaches unless affirmatively waived. The mere failure to request counsel will not be deemed a waiver. See, e. g., Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1976); Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 888, 8 L.Ed.2d 70 (1962).

While the right to counsel is in force until waived, the right of self-representation does not attach until asserted. In order for a defendant to represent himself, he must "knowingly and intelligently" forego counsel, and the request must be "clear and unequivocal." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. See also United States v. Brown, 591 F.2d 307, 310 (5th Cir.), cert. denied, 442 U.S. 913, 99 S.Ct. 2831, 61 L.Ed.2d 280 (1979); United States v. Jones, 580 F.2d 785, 787-88 (5th Cir. 1978); Chapman v. United States, supra, 553 F.2d at 892. Before the trial court accepts the request, the defendant must be "made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942)). In the absence of a clear and knowing election, a court should not quickly infer that a defendant unskilled in the law has waived counsel and has opted to conduct his own defense. Cf. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1976) (courts must indulge every reasonable presumption against waiver of counsel); United States v. Mahar, 550 F.2d 1005, 1009 (5th Cir. 1977) (right to proceed without fully independent counsel must be affirmatively requested and is more easily waived than right to independent counsel).

The important distinction in the manner in which the two rights come into play requires that a different waiver analysis be applied to the right of self-representation than to the right to counsel. Unlike the right to counsel, the right of self-representation can be waived by defendant's mere failure to assert it. If on arraignment an indigent defendant stands mute, neither requesting counsel nor asserting the right of self-representation, an attorney must be appointed. Even if defendant requests to represent himself, however, the right may be waived through defendant's subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether. Chapman v. United States, supra, 553 F.2d 893 & n.12. See also United States v. Bennett, 539 F.2d 45 (10th Cir.), cert. denied, 429 U.S. 925, 97 S.Ct. 327, 50 L.Ed.2d 293 (1976); United States v. Montgomery, 529 F.2d 1404 (10th Cir.), cert. denied, 426 U.S. 908, 96 S.Ct. 2231, 48 L.Ed.2d 833 (1976). In Bennett, the Tenth Circuit held defendant waived his right to proceed pro se by asserting vacillating positions on his request continuing until shortly before trial. 539 F.2d at 51. In Montgomery, the same court held defendant waived his right when after requesting permission to represent himself, he allowed appointed counsel to plea bargain on his behalf and accepted the terms of the bargain. 529 F.2d at 1406.

The right of self-representation, then, is waived if not asserted, while the right to counsel is not. Since the right of self-representation is waived more easily than the right to counsel at the outset, before assertion, it is reasonable to conclude it is more easily waived at a later point, after assertion. Therefore, the cases cited by defendant which establish stringent requirements for waiver of counsel, see, e. g., Ford v. Wainwright, 526 F.2d 919 (5th Cir. 1976), do not apply in full force to the right of self-representation. A waiver may be found if it reasonably appears to the court that defendant has abandoned his initial request to represent himself.

The present case presents an example of waiver through subsequent conduct after an initial request. Defendant concedes that at some point after the hearing on the motion to withdraw he asked counsel to continue his representation. While he argues he made this decision only after the motion was denied, this is inconsistent with his assertion the denial was not made until the day before trial. The record indicates defendant in all likelihood...