Thomas v. Wainwright

• Decision Date: 17 July 1985
• Docket Number: No. 84-3408,84-3408
• Citation: 767 F.2d 738
• Parties: Daniel Morris THOMAS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Dept. of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 738

767 F.2d 738

Daniel Morris THOMAS, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary, Florida Dept. of

Corrections, Respondent- Appellee.

No. 84-3408.

United States Court of Appeals,

Eleventh Circuit.

July 17, 1985.

Douglas N. Duncan, Foley, Colton & Duncan, West Palm Beach, Fla., for petitioner-appellant.

Theda James Davis, Asst. Atty. Gen., Tampa, Fla., for respondent-appellee.

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

Before RONEY, FAY and JOHNSON, Circuit Judges.

RONEY, Circuit Judge:

Daniel Morris Thomas was convicted and sentenced to death for the murder of Charles Anderson. After direct appeal and post-conviction proceedings in the Florida courts, the federal district court denied Thomas' habeas corpus petition. Thomas raises four issues on appeal:

(1) whether he was denied effective assistance of conflict free counsel.

(2) whether Florida law at the time of his sentencing hearing discouraged his attorney from investigating and introducing evidence of nonstatutory mitigating circumstances, depriving him of either due process or effective assistance of counsel.

(3) whether the Brown issue as decided in Ford v. Strickland, 696 F.2d 804 (11th Cir.) (en banc ), cert. denied, --- U.S. ----, 104 S.Ct. 201, 78 L.Ed.2d 176 (1983), should be reconsidered; and

(4) whether the Florida death penalty is being administered in a racially or otherwise discriminatory manner.

We affirm.

On January 1, 1976, a black male wearing a ski mask and gloves and armed with a rifle broke into the home of Mr. and Mrs. Charles Anderson. The intruder shot and killed Mr. Anderson, committed sexual battery on Mrs. Anderson, and stole several items from the house. On December 21, 1976, Thomas was indicted and charged with first degree murder, sexual battery, robbery, and burglary in connection with the events at the Anderson home.

At trial, law enforcement officers and a paid informant testified that shortly after the Anderson murder, they purchased from Thomas and a neighbor, Lee O. Martin, a number of handguns, one of which had been stolen from the Andersons' residence. A search warrant was obtained, and the residences of both men were searched, turning up the murder weapon, ski masks, and several other items stolen from the Andersons' home.

The jury found Thomas guilty on all counts and recommended the death penalty. On April 15, 1977, the trial judge sentenced Thomas to death. The Florida Supreme Court affirmed his conviction and sentence. Thomas v. State, 374 So.2d 508 (Fla.1979), cert. denied, 445 U.S. 972, 100 S.Ct. 1666, 64 L.Ed.2d 249 (1980). Thomas' motion for post-conviction relief was denied by the state court following an evidentiary hearing on the ineffective assistance of counsel issue, and the Florida Supreme Court affirmed. Thomas v. State, 421 So.2d 160 (Fla.1982).

Ineffective Assistance of Counsel

Thomas claims that at his trial and sentencing he was deprived of his Sixth Amendment right to effective assistance of conflict free counsel. An attorney from the Public Defender's Office for the Tenth Judicial Circuit was appointed to represent Thomas, but Thomas completely refused to speak with his attorney concerning the case so that the attorney was forced to investigate the case and defend Thomas without the defendant's assistance.

At Thomas' state post-conviction hearing, the court heard testimony from Dan Brawley, the public defender appointed to represent Thomas. Brawley testified that he had visited Thomas on the day of his arraignment. He was accompanied by Larry Whitten, the chief investigator from the Tenth Judicial Circuit Public Defender's Office. Thomas sat in complete silence for about ten minutes as Brawley and Whitten introduced themselves and began asking him questions regarding the case. Thomas then abruptly walked out of the meeting.

Brawley continued to review the file, investigate, and prepare the case. About two weeks later, Whitten returned alone to visit Thomas and was again unable to communicate with him. Four or five weeks after the first meeting, Brawley visited Thomas a second time and could elicit no comment whatsoever from his client. After a refusal by the court to appoint other counsel, the defendant continued his refusal to communicate throughout the trial.

Thomas alleged that the lack of communication deprived him of his right to effective counsel because other counsel could have communicated with him and discovered information that would have enabled them to present a better defense. The district court considered Thomas' claim to be the "ultimate case of frivolity" due to the fact that it was premised not on defense counsel's acts or omissions but rather on Thomas' absolute refusal to communicate. It noted that Thomas compounded the problem by remaining silent when questioned by the trial judge. The court concluded that "[a] defendant cannot be allowed to refuse to cooperate with his attorney and the trial court and then attempt to create an issue of ineffective counsel on the basis of his own refusal," and proceeded to deny the claim as being without merit.

Thomas argues that his personal conflict with Brawley and his "firm conflict" with the Public Defender's office, of which Brawley was a member, required appointment of private counsel. A review of the record reveals no constitutional error in denying the motion to withdraw and refusing to appoint other counsel.

Where the accused voices objections to appointed counsel, the trial court should inquire into the reasons for the dissatisfaction. United States v. Young, 482 F.2d 993, 995 (5th Cir.1973); see also McKee v. Harris, 649 F.2d 927, 933 (2d Cir.1981), cert. denied, 456 U.S. 917, 102 S.Ct. 1773, 72 L.Ed.2d 177 (1982). Where the court's inquiry is thwarted by the defendant's voluntary conduct, however, the inquiry need only be as comprehensive as the circumstances permit. Hudson v. Rushen, 686 F.2d 826, 831 (9th Cir.1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1896, 77 L.Ed.2d 285 (1983). In Hudson, the court invited the defendant to state his reasons for desiring new counsel and found them to be without merit. The next day, the defendant refused to participate further in the trial and obstreperously departed from the courtroom. The court emphasized that the resulting breakdown in communication between the attorney and his client was caused by the defendant's voluntary conduct rather than by the trial court's failure to make an adequate inquiry into the underlying reasons for the conflict. Id.; see Olsen v. Wainwright, 565 F.2d 906, 907 (5th Cir.1978) (noting petitioner's failure to request another attorney or to proceed pro se in the face of trial court's questioning during hearing on motion to withdraw).

Immediately after the second meeting with defendant and six weeks prior to trial, Brawley filed a motion to withdraw as counsel. The motion asserted two grounds: (1) another public defender from Brawley's office had represented Thomas at a prior criminal trial in which Thomas criticized his counsel from the witness stand, and (2) Thomas' absolute refusal to communicate with Brawley regarding his upcoming trial. The state trial judge conducted a hearing on the motion during which Thomas refused to respond to questions from the bench. The trial judge's unsuccessful attempts to discern the cause of Thomas' dissatisfaction consisted of the following:

THE COURT: Why don't you ask Mr. Thomas to come up? Mr. Thomas, come up to the bench, please?

(The defendant approached the bench).

THE COURT: Mr. Thomas, the Public Defender has filed a motion to withdraw as your lawyer on the grounds that you have failed to cooperate with him. And it is also my understanding that you have been dissatisfied with all of the lawyers that have represented you in all of the cases here in the Tenth Circuit. Is there somebody that you wish to represent you or do you have some other plan about hiring a lawyer on your own to represent you? You are entitled to be represented by a lawyer. You are entitled to a court appointed lawyer. Obviously, you can't afford to hire your own, and we have done that. But you have expressed dissatisfaction with everybody that's tried to help you.

Now what do you propose about somebody to represent you?

You are not going to answer any of my questions, Mr. Thomas?

Has Mr. Brawley been over to see you about the case?

Do you want to represent yourself?

OK. Show the defendant refused to answer any questions or any inquiry about court appointed counsel.

The trial court then solicited suggestions from counsel present. The prosecutor, characterizing Thomas' conduct as "complete noncooperation," recommended denial of the motion to withdraw. The trial court, remarking that there did not seem to be any alternative, denied the motion after receiving Brawley's assurances that he would represent Thomas to the best of his ability. Thomas continued to refuse to communicate with Brawley throughout Brawley's representation of him at trial and sentencing. Brawley characterized Thomas' attitude as one of disinterest rather than hostility.

Under those facts, the trial court cannot be constitutionally faulted either procedurally or substantively in refusing to appoint other counsel. An indigent criminal defendant has an absolute right to be represented by counsel, but he does not have a right to have a particular lawyer represent him, see Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), nor to demand a different appointed lawyer except for good cause. United States v. Young, 482 F.2d at 995. Good cause for substitution of counsel cannot be determined "solely according to the subjective standard of what the defendant perceives." McKee v. Harris, 649 F.2d at 932. A defendant's general loss of confidence or trust in his counsel, standing alone, is not sufficient. Id. See also Hutchins v. Garrison, 724 F.2d 1425, 1430-31 (4th Cir.1983) (rejecting...