U.S. v. Baker, 95-1423

• Decision Date: 21 May 1996
• Docket Number: No. 95-1423,95-1423
• Citation: 84 F.3d 1263
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leroy Walter BAKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1263

84 F.3d 1263

UNITED STATES of America, Plaintiff-Appellee, v. Leroy Walter BAKER, Defendant-Appellant.

No. 95-1423.

United States Court of Appeals, Tenth Circuit.

May 21, 1996.

Henry L. Solano, United States Attorney, and William R. Lucero, Assistant United States Attorney, Denver, Colorado, on the brief for Plaintiff-Appellee.

Mitchell Baker, Denver, Colorado, on the briefs for Defendant-Appellant.

Before BRORBY, EBEL and HENRY, Circuit Judges.

BRORBY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

A jury found Leroy Walter Baker guilty of two counts of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and two counts of making a false statement in acquisition of a firearm in violation of 18 U.S.C. 922(a)(6). We do not address all of the issues Mr. Baker raises on appeal because we find he was denied his right to self-representation and therefore we reverse his conviction and remand for a new trial.

A criminal defendant has a constitutional and a statutory right to self-representation. Faretta v. California, 422 U.S. 806, 834-36, 95 S.Ct. 2525, 2540-42, 45 L.Ed.2d 562 (1975); 28 U.S.C. § 1654. The Supreme Court has held when the right of self-representation is exercised it "usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to 'harmless error' analysis. The right is either respected or denied; its deprivation cannot be harmless." McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984). The defendant must meet several requirements in order to invoke this right. First, the defendant must "clearly and unequivocally" assert his intention to represent himself. United States v. Reddeck, 22 F.3d 1504, 1510 (10th Cir.1994). Second, this assertion must be timely. United States v. Nunez, 877 F.2d 1475, 1478 (10th Cir.), cert. denied, 493 U.S. 981, 110 S.Ct. 514, 107 L.Ed.2d 515 (1989). Finally, there must "be a showing that he 'knowingly and intelligently' relinquishes the benefits of representation by counsel." United States v. McKinley, 58 F.3d 1475, 1481 (10th Cir.1995) (quoting Faretta, 422 U.S. at 835, 95 S.Ct. at 2541). The key question is whether the defendant is competent to waive his or her right to counsel, not whether the defendant possesses legal knowledge or is otherwise competent to represent him or herself. Id.

The government claims Mr. Baker "did not make a clear and unequivocal request to appear pro se; on the contrary, his requests for self-representation were confusing." We disagree. Although at times Mr. Baker may have expressed his thoughts in a somewhat muddled manner, his desire to represent himself was consistently expressed and discussed by himself, his attorneys, the magistrate judge and the district court judge. Our perusal of the record indicates that Mr. Baker brought the matter up nearly every time he appeared before the court. On April 11, 1995, in his initial appearance before the magistrate judge, Mr. Baker stated: "I would like to have a--a--I would like to be pro se with a counsel. In other words, I do want a counsel, but I do not want him to have abso'--absolute control, because I am--I do know the law. You know, I am not ignorant of the law." The magistrate judge told Mr. Baker "You do have a right to have an attorney. If you are choosing to represent yourself and want advisory counsel, we can take that up at an appropriate time." Mr. Baker responded "Now, on that I would like to have, you know, like, in other words, a counsel to advise me." Subsequently, the magistrate judge appointed attorney Edward Harris to represent Mr. Baker. On May 30, 1995, in Mr. Baker's first appearance before the district court, the following exchange occurred:

Mr. Harris: .... We have a preliminary matter which I'd like to address before any of [the] written motions, if I might.

The Court: Go ahead.

Mr. Harris: And that is I've discussed with Mr. Baker the situation concerning advisory counsel vs. counsel vs. pro se, and he indicates to me that he wishes me to withdraw and he wishes to represent himself.

The Court: His motion is denied. Let's proceed. I've had too many cases in this court where people have tried to represent themselves and they just have not had their day in court. He can certainly confer with you and be a partner with you in making decisions, but my experience is very strongly that those who try to represent themselves do not do a good job and they really don't have their constitutional rights protected and their day in court. So that motion will be denied.

Later in that same hearing, Mr. Harris again addressed the court regarding Mr. Baker's wish to represent himself by noting:

Mr. Harris: .... He has some pretty strong ideas as to how he wants this case tried. My hands are bound for a variety of reasons as to how I might try the case, and he is a--I have in dealing with him found Mr. Baker to be intelligent albeit not trained in the law. But I'm not--I guess what I'm saying is I'm not sure I can do more for him at this point than he can do for himself.

I think frankly the result is likely to be the same, is likely to a be a conviction from a jury of 12; and I think given that, he ought to take a shot at it himself, if he feels strongly about it, as he has a right to do, to represent himself pro se. And I know he feels very strongly about it.

If nothing else, I would ask simply that your Honor hear him on that subject limited only to that subject and not discussing any aspects of the case itself, because I know he feels extremely strongly that he wants to defend this case a certain way and by himself.

The Court: There are just so many cases both in this court and before other judges where other defendants have felt that strongly, and in some cases where they have tried the case themselves and had advisory counsel and then later appealed on the grounds that they did not have a fair trial and the judge should have acted to make sure they had counsel rather than letting them make a mess of things pro se.

There are so many statutes and so many rules that have to be known. There is the rules of evidence and the rules of criminal procedure, and we follow those rules specifically.

And if one is not trained in the law, it's like, you know, taking out your own appendix: You just don't know, you just don't understand what's going on.

At this point the district court listened to Mr. Baker's opinions, which soon disintegrated into a discussion regarding the different branches of the federal government, before the district court reiterated its denial of Mr. Harris's motion to withdraw as counsel and admonished Mr. Baker to "try to work out" his relationship with Mr. Harris.

On June 15, 1995, Mr. Baker appeared in front of the magistrate judge for a hearing regarding Mr. Harris's request to withdraw as Mr. Baker's counsel:

[Magistrate]: [The district court judge] wanted me to hold a hearing, wanted me to ascertain what the present situation was vis-a-vis the defendant's view of, and counsel's view, about whether or not the attorney-client relationship should continue. I know it's been denied at one point in time, but she said that I had complete liberty to review the thing and to review everything and to determine where things were at.

....

[Mr. Baker]: At that first hearing, I had asked for a--a advisory counsel. You know, like see, in other words, that I was educated back east in a school, Notre Dame. I am not a--I'm of a--I know the law basically and I know how to--I'm of--of a stable mind, you know, and that I have defended cases on--as pro se before. And that's why I was saying that if because of the lack of me not having access to my records that if I'm to bear the sins of this case before you, with all due respect, you know, then I feel that, you know, the issues--that I should be aware of the issues in my case.

And so, therefore, like I'd asked for that--for an assistant, as far as--like in Colorado law, as far as how Colorado applies the law, I may have a defective [sic] in regards to a how you apply it. But as far as basic...