Strozier v. Newsome, 90-8313

• Decision Date: 19 March 1991
• Docket Number: No. 90-8313,90-8313
• Citation: 926 F.2d 1100
• Parties: Eddie James STROZIER, Petitioner-Appellant, v. Lanson NEWSOME, Warden, Georgia State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1100

926 F.2d 1100

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

No. 90-8313.

United States Court of Appeals Eleventh Circuit.

March 19, 1991.

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

Michael J. Bowers, Atty. Gen., Mary Beth Westmoreland, Susan V. Boleyn, Asst. Attys. Gen., Atlanta, Ga., for respondent-appellee.

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

Before KRAVITCH and ANDERSON, Circuit Judges, and ATKINS ^*, Senior District Judge.

KRAVITCH, Circuit Judge:

The sixth amendment guarantees not only a defendant's right to the assistance of counsel at a criminal trial, but also the right to waive counsel and personally present his or her own defense. The defendant faces serious risks by pursuing the latter course, and the Supreme Court has required that the decision to proceed pro se be made knowingly and intelligently. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975).

Although 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 the record will establish that "he knows what he is doing and his choice is made with eyes open."

Id. (citation omitted).

In a federal habeas corpus petition, 28 U.S.C. Sec. 2254, Eddie Strozier contends that his decision to waive counsel and represent himself at his criminal trial was not knowing and intelligent. The district court denied relief. On appeal, this court reversed and remanded for an evidentiary hearing on the waiver issue. Strozier v. Newsome, 871 F.2d 995 (11th Cir.1989) ("Strozier I "). At the evidentiary hearing before a magistrate, petitioner testified about the facts pertinent to waiver, as did Michael Whaley, the prosecutor at petitioner's 1983 criminal trial, and William Auld, one of the three lawyers who handled petitioner's case before trial. The magistrate found that petitioner had voluntarily relinquished his right to counsel before trial and recommended denial of habeas corpus relief. The district court adopted the report and recommendation denying relief, and petitioner again appeals.

FACTUAL BACKGROUND

Petitioner had three successive lawyers before his trial: an appointed public defender, Auld, and T.V. Mullinax. Petitioner testified at the evidentiary hearing that he became dissatisfied with his latest counsel, Mullinax, on May 16, 1983, the day his criminal trial was scheduled to begin, because he felt Mullinax had not adequately prepared a defense to the charges against him of aggravated assault with intent to rape and kidnapping. Before voir dire, Mullinax informed the court that Strozier wished to represent himself. ¹ The court 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 any question raised. But the defendant himself, he must understand that the procedure is technical. We're going to abide by the rules as best we possibly can. His ignorance of the rules are not going to be any excuse. All right, sir.

Petitioner then began to conduct his defense. He asked questions and exercised peremptory strikes during jury selection. After jury selection but before opening statements, Strozier confirmed that he wanted to represent himself and the prosecutor stated that he had turned over the relevant pre-trial documents. ² Strozier then acknowledged receiving only the indictment and the psychiatric report. After opening statements, the prosecution's evidence, and petitioner's witnesses, he expressed a desire to testify in his own defense.

THE COURT: You understand you don't have to if you don't want to. That in the event you do you're subject to cross-examination like any other witness. Do you understand that?

DEFENDANT: Yes.

Mullinax conducted the direct questioning of Strozier, and on cross-examination the prosecution introduced prior convictions to impeach him. ³ Petitioner objected because he thought the prior convictions could not be used, but the court overruled the objection. After the state rested its case, petitioner attempted to raise the issue of waiver of counsel but did not submit evidence on it. Near the end of a conference on jury instructions, petitioner again questioned the validity of the waiver and, purporting to quote from Jackson v. State, 149 Ga.App. 496, 254 S.E.2d 739 (1979), he said that a defendant must be informed of the charges, defenses and possible sentences for a waiver to be knowing and intelligent. ⁴ The trial court then stated that petitioner had been apprised of his right to waive counsel because he knew of the offense charged "and of the general penalties involved." When the three-day trial was concluded, the jury found petitioner guilty of both charges.

Petitioner contends these exchanges before the trial judge do not establish a record of knowing and intelligent waiver of counsel because no warnings or questioning were directed to petitioner before the trial began. He argues that his three pre-trial lawyers did not discuss the elements of the charges, defenses or evidence because they were only interested in fashioning a guilty plea. Judging from his performance as defense counsel, petitioner seriously misunderstood the charges. ⁵ He was not specifically warned even during the trial that prior convictions could be used for impeachment if he took the stand. Neither the trial court's warning that he would be cross-examined "like any other witness" nor the prosecution's declaration of intent to use similar transactions at trial or prior convictions in sentencing prepared the defendant for the prosecution's introduction of prior convictions. Petitioner contends that a more detailed and searching inquiry by the trial judge before trial was required to assure that the waiver met constitutional standards.

Appellee responds that the above exchanges at the outset and during trial sufficiently warned petitioner of the hazards of representing himself. Furthermore, at the evidentiary hearing both Auld and Whaley testified that the trial judge, at a pre-trial appearance in open court on February 15, 1983, three months before trial, had cautioned petitioner against proceeding pro se after petitioner had expressed dissatisfaction with Auld's performance as his lawyer. Neither witness could recall specific questions posed, petitioner denies he was questioned on the waiver issue, and there is no surviving record of these proceedings. ⁶ Auld also testified that he had warned petitioner several times in private before trial that proceeding pro se would be dangerous because of his lack of legal training and the strength of the evidence against him. ⁷ The magistrate specifically found Auld and Whaley credible on this point, and petitioner not credible. The record does not disclose that at any time prior to trial petitioner was warned specifically that if he took the stand, prior convictions could be brought out for purposes of impeachment.

WAIVER

Our assessment of whether the waiver of counsel was knowing and intelligent is a mixed question of law and fact that we review de novo. Jackson v. James, 839 F.2d 1513, 1516 (11th Cir.1988); Fitzpatrick v. Wainwright, 800 F.2d 1057, 1063 (11th Cir.), reh'g denied, 806 F.2d 1070 (1986). The burden of proof is on petitioner to show that the waiver did not meet constitutional standards. Strozier I, 871 F.2d at 998 n. 6 (quoting Carnley v. Cochran, 369 U.S. 506, 516-17, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962)); Greene v. United States, 880 F.2d 1299, 1303 n. 6 (11th Cir.1989) (on direct appeal the government must prove waiver, but in challenging an underlying conviction petitioner must prove he did not waive the right to counsel) (quoting Strozier I, 871 F.2d at 998 n. 6), cert. denied, --- U.S. ----, 110 S.Ct. 1322, 108 L.Ed.2d 498 (1990). But see Jackson v. James, 839 F.2d 1513, 1517 (11th Cir.1988) (state has not met its burden in habeas corpus of showing voluntary waiver) (quoting Carnley ).

The ideal method of assuring a voluntary waiver is for the trial judge to conduct a pre-trial hearing at which the defendant would be informed of the charges, basic trial procedures, and the hazards of self-representation. See Strozier I, 871 F.2d at 997 n. 4 (judge should do more than ask pro forma questions); Sanchez v. Mondragon, 858 F.2d 1462, 1467 (10th Cir.1988) (general questions insufficient, court must inform the defendant of the nature of the charges, included offenses, and the range of punishments); Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948) (plurality opinion) ("a mere routine inquiry--the asking of several standard questions followed by the signing of a standard written waiver of counsel--may leave a judge entirely unaware of the facts essential to an informed decision that an accused has executed a valid waiver of his right to counsel"). The court should discuss with defendant possible defenses and trial procedures. Sanchez, 858 F.2d at 1467. See also Stano v. Dugger, 921 F.2d 1125, 1148 (11th Cir.1991) (en banc) (waiver must be knowing, intelligent and voluntary through specific questioning of the court, "a more extensive colloquy" than is required for submission of a guilty plea). This hearing should be on the record so that subsequent courts may review it without having to speculate. Sanchez, 858 F.2d at 1467; Stano, 921 F.2d at 1148 n. 36 (quoting Fant, 890 F.2d at 410). The closer such a waiver hearing is to trial, the more rigorous, searching, and formal the questioning of the trial judge should be. See Patterson v. Illinois, 487 U.S. 285, 298-99 & n. 13, 108 S.Ct. 2389, 2398 & n. 13, 101 L.Ed.2d 261 (1988).

Although we repeatedly have stated that...