U.S. v. Silkwood

• Decision Date: 28 December 1989
• Docket Number: No. 88-2096,88-2096
• Citation: 893 F.2d 245
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Randall Scott SILKWOOD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 245

893 F.2d 245

UNITED STATES of America, Plaintiff-Appellee, v. Randall Scott SILKWOOD, Defendant-Appellant.

No. 88-2096.

United States Court of Appeals Tenth Circuit.

Dec. 28, 1989.

Susan L. Foreman (Michael Gordon Katz, Federal Public Defender, with her, on the briefs), Denver, Colo., for defendant-appellant.

Roger Hilfiger, U.S. Atty., and Sheldon J. Sperling, Asst. U.S. Atty., Muskogee, Okl., on the brief, for plaintiff-appellee.

Before MOORE, McWILLIAMS, and ANDERSON, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

Randall Silkwood appeals his conviction for unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1) as well as his enhanced sentence of twenty-five years without parole, imposed pursuant to 18 U.S.C. Sec. 924(e)(1). Mr. Silkwood claims that the trial court erred when it denied his motion to suppress the firearm which he was convicted of possessing and his motion for production of certain Brady material. He also asserts that the trial court abused its discretion by denying his motions for a mistrial based on the testimony of one of the Government's witnesses and on the prosecutor's comments on his failure to testify. Finally, he claims that at the sentence enhancement proceeding, he was denied both his rights to counsel and to due process. We reject Mr. Silkwood's assignments of error with respect to his conviction. We hold, however, that he was improperly denied counsel at the sentence enhancement proceeding. We, therefore, remand this case to the trial court for resentencing and direct that court to appoint counsel to represent Mr. Silkwood unless, after proper inquiry, Mr. Silkwood waives that right.

I. FACTS

On December 9, 1987, Trooper Randy Moore stopped Mr. Silkwood in Durant, Oklahoma, for driving 67 m.p.h. in a 55 m.p.h. zone. Trooper Moore signaled Mr. Silkwood to leave his van. When they met between the two vehicles, Mr. Silkwood informed Trooper Moore that his license was in the van's glove box and asked if he could retrieve it. Trooper Moore and Mr. Silkwood then walked together along the passenger side of the van where Mr. Silkwood opened the front door and reached into the glove compartment for his billfold. While Mr. Silkwood was removing the license from his billfold, Trooper Moore noticed part of the butt of a revolver protruding from a bank bag. Trooper Moore then ordered Mr. Silkwood to step to the rear of the van, grabbed the gun, checked it, saw that it was loaded, put the revolver in the waistband of his trousers, and placed Mr. Silkwood under arrest.

Prior to trial, Mr. Silkwood's attorney moved to withdraw because he had previously represented one of the Government's witnesses. The trial court granted this motion just five days before trial, and appointed new counsel to represent him at trial. Immediately after trial, Mr. Silkwood moved to appear pro se for the remainder of his case. The trial court granted this motion by minute order without inquiry or advisement. The Government, meanwhile, moved for sentence enhancement pursuant to 18 U.S.C. Sec. 924(e)(1), alleging that at least three of Mr. Silkwood's eight prior convictions were for violent felonies.

At the hearing on the Government's motion for enhancement, the court asked Mr. Silkwood whether, considering the gravity of the motion for enhancement, he would like an attorney appointed to represent him. Mr. Silkwood refused the offer because he believed that his trial counsel had been incompetent. The court then informed Mr. Silkwood that his sentence could be enhanced up to fifteen years with a substantial fine and continued the hearing.

At the subsequent hearing, the court inquired again whether Mr. Silkwood wanted an attorney appointed to represent him and informed him generally of the dangers of self-representation. Mr. Silkwood rejected the offer because he believed that trial counsel had spent insufficient time preparing his case and that he could represent himself more effectively than appointed counsel. After hearing argument on the Government's motion for enhancement, the court sentenced Mr. Silkwood to twenty-five years imprisonment without parole.

II. MR. SILKWOOD'S PRE- AND POST-TRIAL MOTIONS

The Fourth Amendment prohibits a warrantless search or seizure unless it falls within one of the amendment's "few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Under the plain view doctrine, one of the recognized exceptions to the Fourth Amendment, a police officer who is lawfully present in a particular place may seize property within his plain view if " 'there is probable cause to associate the property with criminal activity.' " Texas v. Brown, 460 U.S. 730, 738-39, 103 S.Ct. 1535, 1541, 75 L.Ed.2d 502 (1983) (quoting Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980)). We conduct a de novo review to determine whether the trial court properly held that the plain view doctrine applies in this case. United States v. Stewart, 867 F.2d 581, 584 (10th Cir.1989).

The facts of this case clearly support the trial court's holding. Since Trooper Moore stopped Mr. Silkwood for speeding, he was lawfully present at the front passenger side of the van when he saw the butt of the revolver. Although the butt of the revolver was in plain view, the rest of the gun was concealed inside a bank bag. Oklahoma law prohibits any unauthorized person from carrying a concealed weapon. ¹ Okla.Stat.Ann. tit. 21, Sec. 1289.8 (West 1983). Since the revolver in Mr. Silkwood's van was partially concealed, Trooper Moore had probable cause to associate it with criminal activity. Under these circumstances, the seizure of the revolver clearly falls within the plain view exception to the Fourth Amendment's prohibition against warrantless searches and seizures. The trial court, therefore, properly denied Mr. Silkwood's motion to suppress.

Mr. Silkwood also contends that the trial court erred in refusing, after an in camera inspection, to allow him access to Trooper Moore's personnel file. He asserts that since Trooper Moore admitted at the hearing on the motion to suppress that he had had citizens' complaints filed against him, the personnel file may have contained evidence which would undermine Trooper Moore's credibility as a witness. He would then be entitled to view this evidence under the doctrines of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). At Mr. Silkwood's suggestion, we have conducted our own in camera inspection of Trooper Moore's personnel file and find that the trial court ruled properly in denying Mr. Silkwood access to it since it contains no Brady evidence. We have also reviewed Mr. Silkwood's claims that the trial court erred in denying his motions for a mistrial and find them to be without merit.

III. VIOLATION OF MR. SILKWOOD'S SIXTH AMENDMENT RIGHT TO COUNSEL

Since the Supreme Court held in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), that a criminal defendant has the right to appear pro se if he voluntarily, knowingly, and intelligently waives his Sixth Amendment right to counsel, this court has addressed on several occasions the inquiry which a trial court must make to ensure that the waiver meets these standards. See, e.g., United States v. Gipson, 693 F.2d 109 (10th Cir.1982), cert. denied, 459 U.S. 1216, 103 S.Ct. 1218, 75 L.Ed.2d 455 (1983); United States v. Padilla, 819 F.2d 952 (10th Cir.1987); Sanchez v. Mondragon, 858 F.2d 1462 (10th Cir.1988). For the waiver to be voluntary, the trial court must inquire into the reasons for the defendant's dissatisfaction with his counsel to ensure that the defendant is not exercising a choice between incompetent or unprepared counsel and appearing pro se. Sanchez, 858 F.2d at 1465. For a waiver to be knowing and intelligent, the trial court must conduct a " 'penetrating and comprehensive examination' " into the defendant's " 'apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.' " Padilla, 819 F.2d at 956-57 (quoting Von Moltke v. Gillies, 332 U.S. 708, 723-24, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948)). This inquiry must appear in the record. Gipson, 693 F.2d at 112. Our de novo review of the trial court's inquiry in this case leads us to the conclusion that Mr. Silkwood did not voluntarily or knowingly waive his Sixth Amendment right to counsel.

At the first hearing on the Government's motion for sentence enhancement, Mr. Silkwood rejected the court's offer to appoint counsel because he believed that his trial counsel had been incompetent. ² At the subsequent sentence enhancement proceeding, Mr. Silkwood informed the court that he wanted to proceed pro se because he believed that trial counsel had spent insufficient time preparing his case and that he could represent himself more effectively than appointed counsel. ³ Rather than inquiring thoroughly into Mr. Silkwood's allegations of incompetence, the trial court merely attempted to persuade him that trial counsel had done an excellent job in light of the circumstances. The trial court, therefore, failed to ensure that Mr. Silkwood was not forced to make the Hobson's choice against which Sanchez warns, a choice between incompetent or unprepared counsel and appearing pro se. As a result, his choice did not reach the level of voluntariness which Faretta and our cases require.

The trial court's inquiry was also inadequate to ensure that Mr. Silkwood's waiver was knowing and intelligent. Besides its general statements about the seriousness of sentence enhancement, the trial court...