Proffitt v. Wainwright

• Decision Date: 31 May 1983
• Docket Number: No. 80-5997,80-5997
• Parties: Charles William PROFFITT, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Offender Rehabilitation, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 311

706 F.2d 311

Charles William PROFFITT, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Department of Offender Rehabilitation, Respondent-Appellee.

No. 80-5997.

United States Court of Appeals Eleventh Circuit.

May 31, 1983.

Kathryn Emmett, David Golub, Stamford, Conn., Deborah Fins, New York City, for petitioner-appellant.

Charles Corces, Jr., Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.

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

ON PETITION FOR REHEARING.

(Opinion September 10, 1982, 11 Cir., 1982, 685 F.2d 1227).

Before VANCE, KRAVITCH and CLARK, Circuit Judges.

KRAVITCH, Circuit Judge:

The panel opinion, 685 F.2d 1227 (11th Cir.1982), is hereby modified as follows:

1. A reference to a new footnote 40a is added at the end of section IV.C.1. at the end of page 1255, with the footnote to read Our decision that the right of cross-examination of adverse witnesses is extended to capital sentencing proceedings is necessarily limited to the facts of the case before us, involving psychiatric reports.

2. The text beginning with the second complete paragraph on page 1257 (beginning "The state argues that even ...") and continuing through the first full paragraph on page 1258, ending with footnote 46, is deleted and the following is substituted therefore:

The state argues that even if appellant was entitled to attend the hearing, his attorney waived that right. We reject this argument.

Early Supreme Court cases held that the right to presence in capital cases is so fundamental that the defendant cannot waive it. Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 253, 56 L.Ed. 500 (1912); Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 204, 28 L.Ed. 262 (1884). Accord Near v. Cunningham, 313 F.2d 929, 931 (4th Cir.1963). ⁴³ More recently, commentators have interpreted dictum in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), as authorizing a limited exception to the no-waiver rule for defendants who wilfully disrupt their trials, 3 C. Wright, Federal Practice and Procedure Sec. 723 (Supp.1980 at 754 n. 28); 8 B.J. Moore, Federal Practice p 43.02 at 43-02 at 43-9 (2d ed. 1981). ⁴⁴ The state does not claim that appellant disrupted or hindered any part of his trial, however; hence such exception would be inapplicable to this case. In Drope v. Missouri, 420 U.S. 162, 182, 95 S.Ct. 896, 909, 43 L.Ed.2d 103 (1975), the Supreme Court indicated that the issue of waiver of presence in a capital case may be subject to reconsideration, but did not expressly overrule its decisions in Diaz and Hopt.

We need not decide the issue of whether presence at a capital trial ever is waivable, however, for here, even if we assume that the right to presence in a capital case may be waived, no knowing and voluntary and, therefore, no effective waiver was made. ⁴⁵ Appellee does not deny that appellant was neither apprised of the hearing with Dr. Coffer nor afforded an opportunity to assert his right to a hearing; hence appellant did not knowingly or voluntarily waive his right to presence. ⁴⁶

3. An additional paragraph is to be added on page 1270 at the end of the...