Foster v. Wainwright
| Decision Date | 01 October 1982 |
| Docket Number | No. 80-5795,80-5795 |
| Citation | 686 F.2d 1382 |
| Parties | Charlie Lee FOSTER, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
A. Thomas Mihok, Orlando, Fla., for petitioner-appellant.
Russell S. Bohn, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before MILLER *, Judge, TJOFLAT and CLARK, Circuit Judges.
Charlie Lee Foster appeals the district court's denial of his petition for writ of habeas corpus. We affirm.
A Florida jury convicted Foster of two counts of assault with intent to commit a felony. The trial judge sentenced him to two consecutive fifteen-year prison terms, pursuant to which he is presently incarcerated. Having exhausted his state remedies, Foster filed a petition for writ of habeas corpus in the district court, alleging four grounds of relief: (1) that the state trial judge abused his discretion and violated Foster's sixth and fourteenth amendment rights by excluding him from the courtroom during his trial without sufficient cause; (2) that the trial judge refused to hear in open court Foster's testimony in support of his pre-trial motion to dismiss the indictment, in violation of his fourteenth amendment right to due process; (3) that the trial court's denial of Foster's motion for severance violated his fourteenth amendment right to due process; (4) that the trial court's failure to order sua sponte a hearing on Foster's competency to stand trial violated his fourteenth amendment right to due process.
The district court concluded that resolution of the last three of Foster's claims did not require an evidentiary hearing, and denied relief based on those claims in a comprehensive written opinion. We reject as meritless Petitioner's challenge to the district court's findings of fact and conclusions of law as to those three claims, and discuss them no further.
The district court conducted an evidentiary hearing on Petitioner's claim that he was improperly excluded from the courtroom during his trial, and subsequently entered an order and opinion denying relief on this claim as well. In order to decide Foster's appeal from this order, we shall set out at some length the relevant facts as they appear in the record and in unchallenged findings of the district court.
Petitioner's trial began on Monday, April 22, 1974. Before jury selection, the state judge conducted in his chambers a hearing on pre-trial motions, including Foster's motion to dismiss. When Foster's attorney, Larry Ullensvang, called Foster as a witness, the following colloquy ensued:
Petitioner testified in the district court that this contempt warning was the first warning he received. The state trial judge testified that Foster was hostile and antagonistic from the moment he entered the chambers, and that he attempted to control the proceedings.
During the selection of the jury, Foster rose from his seat and briefly interrupted the questioning of the venire to request that he be allowed to say something. The judge said, Foster complied, but later in the voir dire, he again attempted to address the court and again was told to have a seat. Following the selection of the jurors, and their dismissal from the courtroom, the judge summoned Foster and his attorney to the bench:
THE COURT: Mr. Ullensvang, bring your client forward.
Mr. Charlie Foster, I have been practicing law for ten years before I got to be a judge. I'll be a judge almost six years pretty soon and you are not helping your case one bit when you get up and try to make statements in Court. It's not going to help your case one bit. You're going to upset somebody on the jury and it puts me in bad sorts to tell you to sit down and be quiet. Henceforth, if you want to say something, if you want to testify in this case it's your privilege to do so and you can tell the jury anything you want within the bounds of evidence. Okay.
The second day of the trial was conducted without interruption by Foster; opening statements were made and the first seven prosecution witnesses were examined. However, on the third day, still during the State's case in chief, Foster interrupted the proceedings three times, the last of which resulted in his expulsion from the courtroom.
During the one hour and ten minute morning session on the third day, four prosecution witnesses were examined without interruption. Following the lunch recess, court reconvened at 2:10 p. m., and a bench conference was held out of the presence of the jury on the subject of locating and securing a certain witness. Following discussion among the attorneys and the court, this dialogue ensued:
As the district court found, this exchange establishes that Petitioner was aware that contempt could be invoked if he interrupted the proceedings, and that that possibility did not deter him.
The State then called its final witness. During the direct examination, Foster's attorney objected to the admissibility of a certain photograph the prosecution offered in evidence. When, after a bench conference on the question, the court announced that it would overrule the objection, Foster himself objected:
(Whereupon, the jury was dismissed from the courtroom and the following proceedings were had out of their presence.)
The direct examination of the witness concluded soon after this episode, and Petitioner's attorney commenced his cross-examination. Shortly thereafter, Foster objected to the form of a question propounded by his attorney:
(Whereupon, the jury was dismissed from the courtroom and the following proceedings were had out of their presence.)
(Whereupon, the defendant, Charlie Foster, was removed from the courtroom.)
We'll proceed for a little while and see if he wants to come down and behave himself. We'll do it just like-I can bind and gag him, I can do several other things. The best alternative, as I view it, is that he not be in the courtroom to disrupt this proceeding.
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