Strozier v. Newsome, 87-8182

• Decision Date: 27 April 1989
• Docket Number: No. 87-8182,87-8182
• Citation: 871 F.2d 995
• Parties: Eddie James STROZIER, Petitioner-Appellant, v. Lanson NEWSOME, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 995

871 F.2d 995

Eddie James STROZIER, Petitioner-Appellant, v. Lanson NEWSOME, Warden, Respondent-Appellee.

No. 87-8182.

United States Court of Appeals, Eleventh Circuit.

April 27, 1989.

Glen M. Darbyshire, Sutherland, Asbill & Brennan, Atlanta, Ga., for petitioner-appellant.

Mary Beth Westmoreland, Dennis R. Dunn, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before HATCHETT and CLARK, Circuit Judges, and HOEVELER ^*, District Judge.

CLARK, Circuit Judge:

Petitioner, Eddie James Strozier, appeals the denial of his writ of habeas corpus. Strozier contends that the state trial court violated his Sixth Amendment rights by not ensuring that he made a knowing and voluntary waiver of his right to counsel. The district court found the waiver valid. We reverse and remand for an evidentiary hearing to develop the record more fully.

FACTS

Eddie Strozier was convicted of kidnapping and aggravated assault with intent to rape on May 18, 1983. Between the time of his indictment in January and the trial in May, Strozier was represented by three attorneys. At first Strozier was represented by an appointed public defender, but was unsatisfied with his performance. He retained a private attorney, William Auld, who represented him when he entered and then withdrew a guilty plea. Strozier fired that attorney, rejected appointment of a public defender and hired his last attorney, T.V. Mullinax, two weeks before trial.

On the morning of the trial Mullinax informed the court that Strozier was dissatisfied with his representation and wished to represent himself. The trial court did not address Strozier, but responded:

He's got a constitutional right to defend himself, but I'm not excusing you, Mr. Mullinax. I'll expect you to aid him and assist him at any time there's a question raised. But the defendant himself, he must understand that the procedure is technical. We're going to abide by the rule as best we possibly can. His ignorance of the rules are [sic] not going to be any excuse.

(R. 2:164). That was the entire exchange between the court and Strozier before jury selection began and the trial judge did not bring up the decision to proceed pro se again. Before closing argument, however, petitioner argued that he had been denied his right to counsel and read aloud from a case explaining the factors of which the defendant must be informed before proceeding pro se. ¹

At trial, the prosecution presented testimony of the 15-year-old victim and her family which established the following sequence of events. At approximately 9:00 a.m. on August 10, 1982, the victim was awakened and pulled from her bed by Strozier. He told her to come with him and when she tried to scream he placed her in a chokehold. He took her out to the back of the apartment and into a wooded area where he attempted to rape her. The petitioner did not penetrate the victim, however, because a noise startled him and he ran away.

The petitioner represented himself throughout trial. In his opening statement and on his cross-examination of the prosecution witnesses, Strozier admitted that he had entered the victim's apartment and began looking for money to steal. Petitioner later took the stand and Mr. Mullinax was ordered to conduct the direct examination. Strozier testified that once he entered the apartment, he became dizzy from drugs he had been taking and did not know what happened until he was in the woods with the victim. He ran away when he realized what was happening. On cross-examination, the prosecutor was able to introduce Strozier's prior convictions for rape for impeachment purposes.

Strozier was convicted and sentenced to consecutive terms of twenty years for the kidnapping and ten years for the aggravated assault. The Georgia Court of Appeals affirmed petitioner's convictions on direct appeal and the Georgia Supreme Court denied review. Strozier v. State, 171 Ga.App. 703, 320 S.E.2d 764 (1984). Strozier then sought a writ of habeas corpus in state court. After a hearing in which petitioner appeared pro se, the court denied relief without opinion. The Georgia Supreme Court denied review. Petitioner applied for a writ of habeas corpus in the United States District Court for the Northern District of Georgia. The case was assigned to a magistrate who recommended that the petitioner's application be denied.

The district court adopted the magistrate's recommendation and denied the petition.

DISCUSSION

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a defendant has the right to represent himself. Since the right to proceed pro se necessitates the waiver of the constitutional right to counsel, the waiver of counsel must be made knowingly and voluntarily. The Faretta court held that

[a]lthough a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that "he knows what he is doing and his choice is made with his eyes open."

Id. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942)). Strozier contends that the trial judge failure's to hold a hearing to explain the disadvantages of self-representation rendered his waiver of counsel invalid. The district court denied relief finding that the trial transcript supported the validity of the waiver. We reverse and remand to the district court in order to develop a more complete record. ²

Since the Supreme Court announced its decision in Faretta there has been tension between the right to counsel and the right to self-representation. The tension exists because the rights are reciprocal: to assert one necessitates waiver of the other. See Brown v. Wainwright, 665 F.2d 607 (5th Cir.1982) (en banc). The problem is most difficult for the trial judge because if he allows a defendant his right to proceed pro se, he runs the risk that he may have denied the defendant his right to counsel. Similarly, if counsel is appointed to ensure that the right to counsel is not violated, the right to proceed pro se may be violated. This tension is doubly problematic because the violation of both rights is not subject to harmless error analysis. Chapman v. United States, 553 F.2d 886 (5th Cir.1977). ³

To avoid this dilemma, this Circuit has held that after an unequivocal assertion of his right to proceed pro se, the court must hold a hearing "to make sure that the accused understands the risks of proceeding pro se." United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir. Unit B 1981). ⁴ Although a hearing is the preferred route, the absence of a hearing is not fatal since in rare cases the record may support a waiver. Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065-67 (11th Cir.1986). The hearing, therefore, is a means to the end, namely ensuring a voluntary and intelligent waiver. As Fitzpatrick states, "the ultimate test is not the trial court's express advice, but rather the defendant's understanding." Id. at 1065.

In Fitzpatrick, this court found a waiver of counsel valid although the trial court had not held a hearing to specifically warn the defendant of the disadvantages of proceeding pro se when he made his decision. The court was able to discern from the record that the defendant understood what he was doing when he waived his right to counsel. Id. at 1065-67. The record in this case is ambiguous. ⁵ There are several factors pointing to the validity of the waiver and several factors militating against it. As such, it is necessary to remand to the trial court to develop a fuller record on the validity of waiver. ⁶

Upon remand, the district court should specifically consider the factors enumerated in Fitzpatrick to determine whether the defendant was actually aware of the dangers of proceeding pro se. The Fitzpatrick court considered the following factors: (1) the background, experience and conduct of the defendant including his age, educational background, and his physical and mental health; (2) the extent to which the defendant had contact with lawyers prior to the trial; (3) the defendant's knowledge of the nature of the charges, the possible defenses, and the possible penalty; (4) the defendant's understanding of the rules of procedure, evidence and courtroom decorum; (5) the defendant's experience in criminal trials; (6) whether standby counsel was appointed, and the extent to which he aided the defendant; (7) whether the waiver of counsel was the result of mistreatment or coercion; or (8) whether the defendant was trying to manipulate the events of the trial. Fitzpatrick, 800 F.2d at 1065-67.

The record to some extent supports the validity of the waiver. Most importantly, the record indicates that Strozier read to the judge a quote which listed the requirements for a judge faced with a request to proceed pro se. See supra n. 1. This does provide some support for the Georgia Court of Appeals determination that Strozier understood the dangers of self-representation. Strozier v. State, 171 Ga.App. 703, 320 S.E.2d 764 (1984). Nevertheless, petitioner raises an important point: namely, the fact that Strozier read that passage to the judge at the end of the trial is not determinative of Strozier's knowledge at the time of the waiver. That argument loses its force, however, since it also appears that Strozier wrote a "motion to dismiss" prior to trial that contained the same language. ⁷

Still the fact that Strozier wrote this letter is open to different interpretations. The quote stated in part

to be valid ... a waiver of counsel must be made with an apprehension of (1) the nature of the charges, (2) the statutory offenses included within them, (3) the range of allowable punishments thereunder, (4) possible defenses...