Wiggins v. Estelle

• Decision Date: 26 July 1982
• Docket Number: No. 80-2278,80-2278
• Citation: 681 F.2d 266
• Parties: Carl Edwin WIGGINS, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 266

681 F.2d 266

Carl Edwin WIGGINS, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent- Appellee.

No. 80-2278.

United States Court of Appeals, Fifth Circuit.

July 26, 1982.

Craig Smyser, Houston, Tex. (Court-appointed), for petitioner-appellant.

Leslie A. Benitez, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GARZA, POLITZ and WILLIAMS, Circuit Judges.

GARZA, Circuit Judge:

Rarely does a case come before this Court with an issue never previously addressed. This is such a case. While other issues have been raised, ¹ the pivotal issue on this appeal is whether a defendant who is permitted to conduct his own defense may still be denied his constitutional right of self-representation ² by unwanted interference in his behalf by court-appointed, standby counsel. We conclude that such a violation can occur, as it did in the instant case, and reverse the district court's denial of the Great Writ.

The circumstances surrounding the crime are easy to relate. In the early evening of January 17, 1972, a man wielding a rusty pistol robbed a Piggly Wiggly store in San Antonio. After having the cashier stuff the day's proceeds into a brown paper bag, the robber fled the store and drove away in his car. Before driving away, however, a second store employee managed to see the thief's license plate number and wrote it down in the palm of his hand. That number was later traced to the appellant, Carl Wiggins.

After a few false starts, ³ Wiggins was indicted and subsequently brought to trial. Before trial commenced, however, appellant requested that he be permitted to conduct his own defense. The court granted that request, but at the same time appointed two attorneys as standby counsel. ⁴

The conduct of these attorneys during the course of the trial is the core of appellant's argument that he was denied his Sixth Amendment right of self-representation. While the court made it clear that counsel were present for advisory purposes only, ⁵ it was not long before one of the attorneys began to take on a more active role. Soon Wiggins began to protest against standby counsel's unsolicited participation, claiming that it prohibited him from conducting his own defense. ⁶ The court's response was that defendant was going to receive counsel's aid whether he wanted it or not. ⁷ When defendant later requested that the court at least instruct standby counsel not to take the initiative, the court refused. ⁸ Thereafter, counsel continuously participated in the proceedings, both in and outside the presence of the jury. In addition to making objections too numerous to cite, counsel on several occasions cursed, ⁹ argued with defendant, ¹⁰ and moved for mistrial against the defendant's wishes. ¹¹ By the time the smoke cleared, Wiggins had been convicted and sentenced to life imprisonment as a recidivist.

Little time was lost before Wiggins began running the gauntlet of direct appeal, ¹² petitions for state writ of habeas corpus, ¹³ and a petition to the Supreme Court for writ of certiorari. When these routes proved unfruitful, Wiggins undauntedly applied for federal habeas corpus relief. ¹⁴ The district court disposed of the petition by adopting the recommendations of the federal magistrate to whom it had been referred. This appeal followed.

Fool for a Client? ¹⁵

A

The leading case on the right to self-representation is Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In that case, the accused clearly and unequivocally let it be known prior to trial that he wished to represent himself and did not want the aid of counsel. Yet despite a knowing and intelligent waiver, the state court compelled the accused to accept the services of a court-appointed public defender. The Supreme Court held, in a six to three decision, that under these circumstances, the defendant had been denied his constitutional right to conduct his own defense.

In the case before us the defendant also chose, for whatever reason, ¹⁶ to proceed pro se. Unlike the Faretta case, however, the right was granted. Nevertheless, court-appointed standby counsel were appointed over Wiggins' objections. ¹⁷ As already shown, one of these attorneys did far more than merely "standby." The narrow issue presented on this appeal, then, is whether a defendant's Sixth Amendment right to self-representation may be violated by the unsolicited participation of overzealous, court- -appointed standby counsel. ¹⁸ It is an issue not presented in Faretta, but one clearly raised by it.

Since Faretta, the Supreme Court has shed little light on how many of the procedural difficulties resulting from that decision ¹⁹ should be resolved. ²⁰ Nor has there been a case, Supreme Court or otherwise, in which a court has been squarely presented with the question of defining the role of standby counsel. ²¹ However, notwithstanding the paucity of authority on the subject, Faretta itself offers some guidelines.

The essence of Faretta was succinctly stated:

The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.... The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.

The counsel provision supplements this design. It speaks of the "assistance" of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant.... To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists.... An unwanted counsel "represents" the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.

Faretta v. California, 422 U.S. 820-21, 95 S.Ct. 2533-34.

Court-appointed counsel was never meant to be an albatross tied around a defendant's neck. Instead, he was intended to be a means through which a defendant, ignorant of the intricate mechanics of the law, could effectively present his defense. See Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170 (1932). But like any other tool, he may be used or not used. Here, Wiggins chose to conduct his own defense; this much was constitutionally guaranteed under Faretta. He also wished to dispose of the court-appointed standby counsel, but the trial court refused. Under Faretta, this matter was within the court's discretion. ²² But while the presence of standby counsel may be forced on a defendant, his aid may not. His function is "to aid the accused if and when the accused requests help...." Faretta v. California, 422 U.S. at 835 n.46, 95 S.Ct. at 2541. Anything more would prevent the pro se defendant from conducting his defense. Therefore, the rule that we establish today is that court-appointed standby counsel is "to be seen, but not heard." By this we mean that he is not to compete with the defendant or supersede his defense. Rather, his presence is there for advisory purposes only, ²³ to be used or not used as the defendant sees fit. ²⁴

B

The more difficult question on this appeal was posed by Justice Blackmun in his dissent to Faretta: "May a violation of the right to self-representation ever be harmless error?" ²⁵ Perhaps the best authority for the proposition that a denial of the right to conduct one's own defense will always be reversible error is Faretta itself. Nowhere in the case is there any indication that the defendant was prejudiced by the rejection of his pro se request, that his state-appointed attorney did not conduct an able defense, or that there were any statutory or constitutional grounds for reversal other than the trial court's denial of Faretta's right of self-representation. The case is clearly one in which an otherwise "harmless" denial of a constitutional right is itself sufficient grounds for reversal. ²⁶

Not every violation of a constitutional right, however, requires an automatic reversal of a conviction regardless of the facts and circumstances. As the Supreme Court stated in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969): "although 'there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error', not all 'trial errors which violate the Constitution automatically call for reversal.' " 395 U.S. at 251, 89 S.Ct. at 1727 (quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, 710 (1967)). Faretta is distinguishable. There the defendant's right to proceed pro se had been completely denied. Wiggins, on the other hand, had been granted that right. It had, however, been interfered with. Under these limited circumstances, there is a need for a harmless error rule. Were there none, a reversal would be mandated every time overzealous counsel, acting in the best interests of his client, volunteered his aid without prior permission. This would be true even though the interjections were few and innocuous. Moreover, an automatic reversal rule would give unscrupulous counsel carte blanche to sandbag the prosecution. All that would be necessary to secure a new trial for a defendant whose conviction is a foregone conclusion would be for counsel to throw himself into the fray. Such results were not meant to be. Some flexibility is necessary, and the harmless error rule is the vehicle that takes us there.

Notwithstanding our adoption...