Savage v. Estelle, 87-6681

• Decision Date: 05 February 1991
• Docket Number: No. 87-6681,87-6681
• Citation: 924 F.2d 1459
• Parties: Bobby R. SAVAGE, Petitioner-Appellant, v. Wayne ESTELLE, Warden, et al., Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1459

924 F.2d 1459

Bobby R. SAVAGE, Petitioner-Appellant, v. Wayne ESTELLE, Warden, et al., Respondent-Appellee.

No. 87-6681.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 4, 1988.

Decided July 16, 1990.

As Amended on Denial of Rehearing

and Rehearing En Banc Feb. 5, 1991.

Mary F. Gibbons, Beverly Hills, Cal., for petitioner-appellant.

David F. Glassman, Deputy Atty. Gen., Los Angeles, Cal., for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before TANG, THOMPSON and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

In this case of first impression, we are called upon to determine whether a trial court may deny a criminal defendant's right to represent himself at trial where the defendant's severe speech impediment renders him unable to articulate his own defense. The state trial judge imposed restrictions on defendant's courtroom conduct which amounted to an effective denial of his right to proceed pro se. We conclude that under the controlling Supreme Court precedent the action was not error and therefore affirm the district court's denial of a petition for a writ of habeas corpus.

I

On August 14, 1980, Bobby Ray Savage ("Savage" or "appellant") threw acid in the face of a woman he had been hired to "beat up." The victim died ten days later as a result of the attack. Following Savage's arrest, an appointed counsel represented him at both his preliminary hearing and subsequent arraignment in California state court where he pleaded not guilty to charges of first-degree murder, mayhem, assault with a caustic substance, and conspiracy to commit these offenses.

Citing a conflict of interest with his court-appointed attorney, Savage filed pro se motions for substitution of himself as counsel and to proceed in propria persona. ¹ Judge Horowitz, the state trial judge handling pre-trial matters in the case, granted co-counsel status to the appellant pending trial and set Savage's motions down for a hearing. Although the appellant withdrew his motion for substitution of counsel the following week, he reiterated his request that he be permitted to proceed pro se. At a hearing on the appellant's motion, Judge Horowitz noted that Savage's severe speech impediment might cause him considerable difficulty in presenting his own defense but, finding that the appellant had made a knowing and intelligent waiver of his right to counsel, reluctantly granted the motion, discharged Savage's court-appointed attorney, and appointed an investigator to assist the appellant with the preparation of his defense.

For the next two and one-half months, Savage handled his own defense, attending hearings and filing various motions pro se. Then, following a colloquy with Judge Devich (who had replaced Judge Horowitz) in which the problems presented by the appellant's severe speech impediment were discussed, Savage accepted the proffered appointment of attorney Gerald Fogelman as his co-counsel. Although Judge Devich stated that Fogelman, and not the appellant, would "put the case on" and "present the evidence to the jury," ² Savage accepted the appointment of Fogelman because of the court's assurances that it would not affect any of the appellant's pending pro se motions.

Three months later, Savage filed another pro se motion in which he alleged a conflict of interest with his co-counsel and asked that Fogelman be relieved. Following a hearing in camera, Judge Kolostian (who had replaced Judge Devich) denied the motion. A similar motion made two months later before Judge Kolostian was also denied.

On January 10, 1984, after several continuances and just one week before his trial was scheduled finally to begin, Savage renewed his motion to relieve Fogelman as his co-counsel, again alleging a conflict of interest. Following a lengthy hearing, Judge Grover, who was destined to preside over Savage's trial, denied the motion. The basis for Judge Grover's ruling was that the appellant's speech impediment was so severe that it would effectively preclude him from being able to articulate his defense to a jury. See Appendix. Judge Grover further ruled that, although Savage would not be permitted to question jurors, cross-examine witnesses, make objections, or otherwise argue any portion of his case directly to the jury without first obtaining the court's leave to do so, the appellant would retain his status as co-counsel. This status included full in propria persona privileges at the jail with the concomitant rights of access to a law library and private meetings with his court-appointed investigator, as well as the right to file motions.

Following a lengthy jury selection and trial, Savage was convicted of first-degree murder, mayhem, and assault with a caustic substance. The appellant was duly sentenced and, after having exhausted his state court remedies, filed this petition for a federal writ of habeas corpus. Savage argued that the state trial court had denied him his constitutional right to represent himself at trial and that his conviction must therefore be overturned. The district court denied the writ and dismissed the petition, and this timely appeal followed. We review the district court's decision de novo. See Nevius v. Sumner, 852 F.2d 463, 466 (9th Cir.1988), cert. denied, 490 U.S. 1059, 109 S.Ct. 1972, 104 L.Ed.2d 441 (1989). ³

II

Criminal defendants have a constitutional right to forgo the assistance of counsel and to represent themselves instead. The Supreme Court found this right in the sixth amendment in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and reacknowledged its existence nearly a decade later in McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). ⁴ The Court rejected impassioned contentions that its finding of the right of defendants to proceed pro se would result in unfair trials because most criminal defendants have no familiarity with substantive or procedural rules of law. ⁵

The Supreme Court has identified only two instances in which an accused's right to represent himself may be overridden by other concerns. First, the defendant must "knowingly and intelligently forgo[ ] his right to counsel." McKaskle, 465 U.S. at 173, 104 S.Ct. at 948. Second, he must be "able and willing to abide by rules of procedure and courtroom protocol." Id. If a defendant meets these two requirements, he may represent himself.

Appointment of counsel for an accused, however, is not necessarily inconsistent with the accused's right to proceed pro se. Thus, it is no violation of the sixth amendment "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 the defendant's achievement of his own clearly indicated goals." Id. at 184, 104 S.Ct. at 954.

The Supreme Court in McKaskle set forth a two-part test for determining whether an appointment of such standby counsel has resulted in violation of the Faretta right. "First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury." Id. at 178, 104 S.Ct. at 951. The Court identified this as the "core of the Faretta right." Id. "Second, participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself." Id. If either of these requirements is not met, the accused's right to represent himself has been effectively denied.

III

The state trial court ruled that it would permit Savage to exercise his right to represent himself at his trial. Nonetheless, it placed certain restrictions on that exercise. For instance, it specified that, absent prior permission from the court, only Fogelman, Savage's appointed "co-counsel," could conduct voir dire, examine witnesses, and argue before the jury. We must determine whether these restrictions resulted in an effective denial of Savage's Faretta right.

As we noted above, the right of a criminal defendant to represent himself at trial consists of two fundamental elements. The defendant must himself control the case presented to the jury, and the jury must perceive the defendant as having such control. Subsumed in these requirements is the defendant's right "to control the organization and content 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." Id. at 174, 104 S.Ct. at 949.

The record reveals that Savage was denied at least some of these rights. While the trial court specified that Savage could himself make motions and address the court, it refused to allow him to participate in voir dire. It would not permit him to question witnesses. It never allowed him to address the jury. Appointed co-counsel assumed all these responsibilities, and the court rejected Savage's repeated pre-trial requests to go it alone.

It cannot be seriously argued here that the jury ever perceived Savage as representing himself. Rather, Savage appeared before it as would have any criminal defendant represented by counsel. Fogelman was introduced to the jury as Savage's counsel. Fogelman questioned prospective jurors during voir dire. Fogelman examined and cross-examined the witnesses. Fogelman objected to various presentations of the prosecution's evidence. Under McKaskle, appellant's right to proceed pro se, though said to have been granted by the court, was effectively denied by the actions of the court and appellant's appointed co-counsel. ⁶

IV

We must next determine whether this denial of Savage's Faretta right was permissible. ⁷ A denial is permissible if an accused does not "knowingly and intelligently forgo[ ] his right to counsel" or is...