Evans v. Raines, Civ 80-522 PHX VAC.

• Decision Date: 26 March 1982
• Docket Number: No. Civ 80-522 PHX VAC.,Civ 80-522 PHX VAC.
• Citation: 534 F. Supp. 791
• Parties: Charlie Lee EVANS, Petitioner, v. Robert RAINES, Respondent, and The Attorney General of the State of Arizona, Additional Respondent.
• Court: U.S. District Court — District of Arizona

534 F. Supp. 791

Charlie Lee EVANS, Petitioner, v. Robert RAINES, Respondent, and The Attorney General of the State of Arizona, Additional Respondent.

No. Civ 80-522 PHX VAC.

United States District Court, D. Arizona.

March 26, 1982.

COPYRIGHT MATERIAL OMITTED

Frederic J. Dardis, Pima County Public Defender by Allen G. Minker, Chief Deputy Public Defender, Tucson, Ariz., for petitioner.

Robert K. Corbin, Atty. Gen. by David R. Cole, Asst. Atty. Gen., Phoenix, Ariz., for respondents.

OPINION AND ORDER

CORDOVA, District Judge.

On June 14, 1978 petitioner Charlie Lee Evans was charged with rape and kidnapping for rape in the Superior Court of the State of Arizona, Pima County. A jury found petitioner guilty of both charges following a trial at which he was allowed to represent himself, with the assistance of advisory counsel. He was sentenced to a term of thirty (30) years to life on the rape charge and to a term of thirty (30) to fifty (50) years on the kidnapping for rape charge. Petitioner's conviction was affirmed by the Arizona Supreme Court. State v. Evans, 125 Ariz. 401, 610 P.2d 35 (1980).

Pursuant to 28 U.S.C. § 2254 petitioner then filed a petition for writ of habeas corpus that is presently before this Court. The Court previously denied respondents' motion to dismiss and provided the opportunity for an evidentiary hearing. As the parties declined that opportunity to present further evidence or arguments, the Court will consider the state court record and the other papers filed in this case in ruling on the merits of the petition.

The petition and the memorandum accompanying it allege that the petitioner was denied due process in that the trial court failed to conduct a proper inquiry or hearing to determine his competency to waive counsel. Petitioner also alleges that the record fails to reveal that he knowingly and intelligently waived his right to counsel.¹ Since both of these arguments have merit, the Court will grant the petition on the conditions stated in this Opinion and Order.

Competency to Waive Counsel

Petitioner first contends that the trial court erred in failing to conduct a proper inquiry or hearing as to his competency to waive counsel. He argues that the finding that he was competent to stand trial is not sufficient to satisfy the trial court's "protecting duty" to ascertain that he was competent to waive his constitutional right to the assistance of counsel.² Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966); see Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). Petitioner asserts that the standard of competency to waive constitutional rights is whether the defendant has the "ability to make a reasoned choice among the alternatives presented to him." Sieling v. Eyman, 478 F.2d 211, 216 (9th Cir. 1973), quoting Schoeller v. Dunbar, 423 F.2d 1183, 1194 (9th Cir.) (Hufstedler, J., dissenting), cert. denied, 400 U.S. 834, 91 S.Ct. 69, 27 L.Ed.2d 66 (1970).

Petitioner is correct that Sieling established, at least in this circuit, that a higher level of competency is required to plead guilty than to stand trial.³ This higher standard of competency is of constitutional dimension and is applicable to the states in habeas corpus actions. E.g., Darrow v. Gunn, 594 F.2d 767 (9th Cir.), cert. denied, 444 U.S. 849, 100 S.Ct. 99, 62 L.Ed.2d 64 (1979); Sieling v. Eyman, supra, 478 F.2d 211. Although Sieling and its progeny involved the entry of guilty pleas, the reasoning of those cases is fully applicable here.⁴ Thus the Sieling test, as refined in subsequent cases, may be adapted to the waiver of counsel context. Accordingly, the Court will apply the following standard in examining petitioner's first ground for relief: Due process requires a trial court to hold a hearing, sua sponte, on a defendant's competence to waive counsel whenever the trial judge entertains or reasonably should entertain a good faith doubt as to the defendant's ability to (1) understand the nature and consequences of the waiver; (2) participate intelligently in the proceedings; or (3) make a reasoned choice among the alternatives presented. See, e.g., Chavez v. United States, 656 F.2d 512, 515 (9th Cir. 1981); Sailer v. Gunn, 548 F.2d 271, 275 (9th Cir. 1977); Sieling v. Eyman, supra, 478 F.2d at 215.

Ninth Circuit cases make clear that a good faith doubt arises when there is "substantial evidence" of incompetence. United States v. Veatch, 647 F.2d 995, 1001 (9th Cir. 1981); United States v. Clark, 617 F.2d 180, 185 (9th Cir. 1980). In determining whether there is substantial evidence the trial court should consider all information properly before it and evaluate the probative value of each piece of evidence in light of the others. Chavez v. United States, supra, 656 F.2d at 518. In deciding whether a hearing is necessary, the court must accept as true all evidence of incompetence since it may find such evidence not credible only after the actual competency hearing. Id. Evidence of incompetence may include, but is not limited to, the existence of a history of irrational behavior, medical opinion, and the defendant's demeanor at trial. See Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Moore v. United States, 464 F.2d 663, 666 (9th Cir. 1972). In other words, at any time there appears from any source substantial evidence of the defendant's incompetence, there is a good faith doubt that cannot be dispelled by resort to conflicting evidence and the trial court sua sponte must order an evidentiary hearing on the competency issue. Id.; see Darrow v. Gunn, supra, 594 F.2d at 770-71; de Kaplany v. Enomoto, 540 F.2d 975, 980-81 (9th Cir. 1976), cert. denied, 429 U.S. 1075, 97 S.Ct. 815, 50 L.Ed.2d 793 (1977).

Recognizing that the review of a failure to provide a competency hearing must be "comprehensive," Darrow v. Gunn, supra, 594 F.2d at 771; de Kaplany v. Enomoto, supra, 540 F.2d at 983,⁵ this Court concludes, upon review of the state court record, that there was substantial evidence before the trial court to have raised a good faith doubt about petitioner's competency to waive counsel and to have necessitated a hearing on the issue. At the outset it should be noted that the record does not in any real sense suggest that petitioner lacked the ability to understand the nature and consequences of the waiver or to participate intelligently in the proceedings. Rather, the indicia of incompetence relate to the third element of the test, whether petitioner was able to make a reasoned choice among the alternatives presented.

The issue of petitioner's possible incompetence first surfaced when his counsel filed a motion to have petitioner's mental condition examined pursuant to Rule 11 of the Arizona Rules of Criminal Procedure. This motion was granted and it was ordered that an examination be conducted, by two psychiatrists, into petitioner's competency to stand trial and his mental condition at the time of the offense. The psychiatrists examined petitioner and concluded that he was competent to stand trial and was sane at the time of the offense. A hearing was held on September 11, 1979, at which time petitioner was found competent to stand trial since he was "able to understand the nature of the charge and ... assist in his defense." (RT Sept. 11, 1978 p. 35).

Since petitioner was still represented by appointed counsel at the time of this September 11, 1978 hearing, neither the court nor the psychiatrists had occasion to directly consider petitioner's competence to waive counsel. Nevertheless, some of the medical opinion evidence entered into the record at that time "spills over" into the issue of whether petitioner was able to make a reasoned choice. Spikes v. United States, 633 F.2d 144, 146 (9th Cir. 1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1399, 67 L.Ed.2d 369 (1981). While there was some evidence of probative value suggesting that petitioner was competent to make a reasoned choice,⁶ there was also significant evidence to the contrary.⁷ As the evidence of incompetence must be accepted as true, Chavez v. United States, supra, 656 F.2d at 518, it appears there was substantial evidence at the Rule 11 proceeding to create a good faith doubt about petitioner's ability to make a reasoned choice. There was, of course, no error in failing to hold a hearing on the issue at that point since petitioner had not yet attempted to waive counsel.

Petitioner first sought to waive counsel on January 10, 1979.⁸ On that date the court initially heard argument on petitioner's motion to be present during his counsel's interview of the rape victim. After this motion was denied petitioner orally moved to be allowed to represent himself. The trial court informed petitioner of the nature of the duties he would have to assume in acting as his own attorney. (RT Jan. 11, 1979 pp. 6-8, 15). The judge also expressed his concern that petitioner sought to represent himself simply because of his desire to be present during the interview of the victim and warned petitioner that he would not be permitted to later change his mind and seek to have counsel reinstated. The court then ordered that petitioner be allowed to represent himself and relegated the public defender to the status of advisory counsel.⁹

The waiver issue arose again on the day of trial, January 30, 1979, when the prisoner requested the judge to again admonish petitioner that it would be a "drastic measure" for him to represent himself. (RT Jan. 30, 1979 p. 3). The Court inquired whether petitioner still desired to represent himself and petitioner responded that "I feel that a bar-appointed lawyer could better defend myself than I could." (Id. at 4). The Court then informed petitioner that the case was going to trial that day and that either advisory counsel would represent him or he would represent himself. Petitioner first declined to make a choice and then decided to represent himself since he could not...