Stepp v. Estelle

• Decision Date: 08 December 1975
• Docket Number: No. 74-2735,74-2735
• Citation: 524 F.2d 447
• Parties: Arthur Earvin STEPP, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 447

524 F.2d 447

Arthur Earvin STEPP, Petitioner-Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections Respondent-Appellant.

No. 74-2735.

United States Court of Appeals Fifth Circuit.

Dec. 8, 1975.

John L. Hill, Atty. Gen., Joe B. Dibrell, Larry F. York, John Pierce Griffin, Sarah Shirley, Asst. Attys. Gen., Austin, Tex., for respondent-appellant.

Michael J. Whitten, Denton, Tex. (Court-appointed), for petitioner-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before WISDOM and BELL, Circuit Judges, and BREWSTER, District Judge.

BREWSTER, District Judge.

This habeas corpus action under 28 U.S.C.A. § 2254 seeks to set aside the conviction and life sentence of petitioner ¹ on November 16, 1961, for robbery by assault in Cause No. 11,979, State of Texas v. Arthur E. Stepp, in the District Court of Denton County, Texas. The life sentence was pursuant to the provisions of Article 62, Vernon's Ann.Penal Code of Texas, an enhancement statute. ²

Petitioner is also in state custody under three other felony convictions. On December 19, 1961, about a month after the trial in Denton County in the case here involved, he pleaded guilty in each of two robbery cases and in one felony theft case in Tarrant County, Texas, which adjoins Denton County. The sentences were twenty-five years in each of the robbery cases and five years in the theft case, all to run concurrently with each other and with the sentence for robbery in Denton County. The record here fails to show whether petitioner has yet made any collateral attack on the Tarrant County convictions.

The only question ³ here presented arose out of the fact that upon petitioner's insistence he was permitted to discharge his two court-appointed attorneys shortly before the completion of the voir dire examination of the jury panel in his robbery trial, and to proceed pro se thereafter. His petition asserted that his conviction should be set aside because: (1) the trial judge had notice of facts which required him to hold a hearing sua sponte to determine the question of petitioner's mental competency to waive his right to counsel; and (2) regardless of whether that Court should have held such a hearing, the fact is that he was mentally incompetent at the time to waive such right. After an evidentiary hearing, the Court below disagreed with petitioner's first contention, but accepted the second one and set aside the robbery conviction for the reasons set out in its memorandum opinion. That opinion says that the judge in the robbery trial could not be faulted for failure to hold a mental competency hearing on his own motion because the information he had was inadequate to require one. ⁴ The conclusory finding upon which the conviction was set aside was that a preponderance of the evidence showed "that the petitioner did not, at the time of his trial, have the mental capacity to competently and intelligently waive the right to counsel."

The respondent contends that the judgment should be reversed because the finding of lack of mental capacity to waive counsel was clearly erroneous. We agree.

The state court trial grew out of a robbery of a filling station operator in Sanger, a small town in Denton County, Texas. The robbery victim was the only possible witness who could be used by the prosecution to connect petitioner with the hijacking; so, when petitioner was ready to leave the station, he fired six shots from a small caliber pistol into the body of his victim and left him for dead. The operator had enough life left to crawl to a telephone after petitioner left and summon help, and he survived to testify in the robbery trial. The only issue petitioner took with the victim's testimony in the robbery trial was over how long the hijacking and shooting lasted. It apparently seemed longer to the victim than it did to the petitioner.

Two Denton lawyers were appointed several weeks in advance of the trial to represent petitioner in the robbery case. They were highly capable and made an exceptionally thorough investigation. There was never any friction or communication problem between them and petitioner. It was apparent all along that if the robbery victim lived and became able to go to court and testify, the only possible defense would be insanity. A thorough research of that matter convinced defense counsel that there was no hope there. ⁵ They discussed the results of their investigation with petitioner and thought that he agreed with them. They negotiated a plea bargain whereby the prosecution agreed to recommend a sentence of forty-five years if the petitioner pleaded guilty. Petitioner rejected it because he said he could get out on parole on a life sentence as quickly as on one for forty-five years.

During his voir dire examination of one of the potential jurors, the prosecutor in the robbery case stated that the defense might be insanity. One of defense counsel objected on the ground that there was no intention to rely upon such a defense. Petitioner testified in this proceeding that that was the first time he knew that the defense of insanity had been abandoned, and that after his lawyer sat down, he quietly told him that he wanted to see the Judge. ⁶ The lawyer relayed the message to the Judge at the bench, and the Judge told the lawyer to find out what petitioner wanted to see him about. Petitioner's answer was that he wanted the Judge to appoint new counsel for him. It was almost noon, and court was recessed. The Judge had petitioner, his lawyers, the prosecutor and the Sheriff to come into his chambers to discuss the matter. ⁷ The following is quoted from the opinion of the court below:

"At the time he made this request, the petitioner did not exhibit any symptoms of mental illness or behave in any way that should have excited the trial judge's suspicions about his mental condition. The trial judge formed the impression that the petitioner was a shrewd individual, who was attempting to arouse the jury's sympathy, as well as their doubts about sanity, by demanding to conduct his own defense. . . .

"When confronted with the petitioner's extraordinary request, the trial judge conferred with the petitioner, in chambers, and attempted to dissuade him from attempting to conduct his own defense. The trial judge explained the hazards that face the layman who ventures to represent himself and praised the abilities of the petitioner's attorneys. The petitioner was not persuaded, and continued to insist on pro se representation. The trial judge spoke further with the petitioner, and formed the impression in his own mind that the petitioner was capable of making a knowing and intelligent decision to waive the right to representation by counsel. The trial judge then did a bit of legal research and concluded that, unless he believed the petitioner to be incompetent or incapable of making an intelligent choice, he could not deprive him of the right to proceed pro se. Accordingly, he acquiesced to the petitioner's demand, but ordered the two attorneys to remain at counsel table with the petitioner and make available their advice and assistance at any time he asked for them."

The judge of the convicting court acted correctly in denying petitioner's request after the trial started, with no showing of just cause, for appointment of new counsel. Bowman v. United States, 5 Cir., 409 F.2d 225 (1969); United States v. Calabro, 2 Cir., 467 F.2d 973 (1972). ⁸ The requirement that petitioner's appointed lawyers remain near him during the trial to give legal assistance if he requested it was also in accord with accepted practice. Faretta v. California, --- U.S. ----, 95 S.Ct. 2525, 45 L.Ed.2d 562, 581 (1975); ⁹ Bayless v. United States, 9 Cir., 381 F.2d 67, 71 (1967); United States v. Price, 9 Cir., 474 F.2d 1223 (1973). ¹⁰

Neither the judge of the convicting court nor the judge of the federal court who held the habeas hearing had the advantage of a direct determination by the Supreme Court of whether the right of a defendant to represent himself in his criminal case has federal constitutional status, and if so, what the exact nature and extent of it is. The District of Columbia Court of Appeals, in United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113, 1121-1123 (1972), pointed out that the Supreme Court had never held directly that such right in criminal cases in federal courts was derived from the Constitution, although there was dictum to that effect in Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). The Dougherty case did not pass on the constitutional question, but recognized that self-representation was a fundamental right which had existed under federal statute ¹¹ since the day before the Sixth Amendment was proposed. In the thirty years between the decisions in Adams and Dougherty, most of the federal courts of appeals had gone along with the dictum in Adams, and had recognized that the right of pro se representation was a constitutional right derived under the Sixth Amendment. Some of those decisions were: Juelich v. United States, 5 Cir., 342 F.2d 29 (1965); Middlebrooks v. United States, 5 Cir., 457 F.2d 657 (1972); United States v. Bentvena, 2 Cir., 319 F.2d 916 (1963), cert. den. sub nom., Ormento v. United States, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963); United States v. Plattner, 2 Cir., 330 F.2d 271 (1964); Bayless v. United States, 9 Cir., 381 F.2d 67 (1967); Arnold v. United States, 9 Cir., 414 F.2d 1056 (1970), cert. den., 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514; Lowe v. United States, 7 Cir., 418 F.2d 100 (1969), cert. den., 397 U.S. 1048, 90 S.Ct. 1378, 25 L.Ed.2d 660; United States v. Pike, 9 Cir., 439 F.2d 695 (1971). One of the few federal cases in which the rule was applied to criminal cases in state courts was Maldonado v. Denno, 2 Cir., 348 F.2d 12 (1969).

The Supreme Court has settled the question while this case has...