Wise v. Bowersox

• Decision Date: 20 February 1998
• Docket Number: No. 97-1139,97-1139
• Citation: 136 F.3d 1197
• Parties: Jessie Lee WISE, Appellant, v. Michael BOWERSOX, Supt., PCC, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1197

136 F.3d 1197

Jessie Lee WISE, Appellant, v. Michael BOWERSOX, Supt., PCC, Appellee.

No. 97-1139.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 8, 1997.

Decided Feb. 20, 1998.

Nelson L. Mitten, St. Louis, MO, argued (Mary J. Ligocki, on the brief), for Appellant.

Michael J. Spillane, Assistant Attorney General, Jefferson City, MO, argued (Jeremiah W. (Jay) Nixon, on the brief), for Appellee.

Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.

BOWMAN, Circuit Judge.

Jessie Wise was convicted of first-degree murder and sentenced to death in a Missouri state court. The evidence showed that he attacked Geraldine McDonald without provocation and beat her to death with a pipe wrench on August 27, 1988. Over the next two days he burglarized her home, where he had killed her, and stole her money, her car, and her jewelry, some of which he pawned and some of which he traded for cocaine. The postconviction court denied his motion for relief. In an opinion combining review of the issues raised in Wise's direct appeal and the issues raised in his postconviction motion, the Supreme Court of Missouri unanimously affirmed his conviction and sentence. The facts of the case are detailed in that court's opinion, State v. Wise, 879 S.W.2d 494, 501-02 (Mo.1994) (en banc), cert. denied, 513 U.S. 1093, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995). Following his unsuccessful appeal, Wise petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 (1994). The District Court ¹ denied his petition without holding an evidentiary hearing, and Wise now appeals. We review decisions on questions of law de novo, see Culkin v. Purkett, 45 F.3d 1229, 1232 (8th Cir.), cert. denied, 516 U.S. 842, 116 S.Ct. 127, 133 L.Ed.2d 76 (1995), but we presume that state-court findings of fact, if made after a fair hearing and supported by the record, are correct. See 28 U.S.C. § 2254(d) (1994). ² For the reasons that follow, we affirm the District Court's denial of Wise's petition for habeas corpus.

Wise first argues that the trial court erred in permitting him to represent himself. A criminal defendant has the right to an attorney, but he also has the constitutional right to waive that right and to act as his own lawyer. See Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975). In this case Wise chose to exercise his right to defend himself. He represented himself in the guilt phase of his trial, following which he was convicted of first-degree murder, but decided to be represented by counsel in the sentencing phase. Now he argues that the trial court was wrong to grant him his wish for self-representation in the guilt phase of his trial.

Because a defendant has the constitutional right to an attorney, if he does not effectively waive that right, yet is put to trial without the assistance of counsel, his conviction and punishment violate due process. See Faretta, 422 U.S. at 818, 95 S.Ct. at 2532-33 (holding that the Sixth Amendment right to an attorney is part of the "due process of law" that the Fourteenth Amendment prohibits states from infringing). Before a defendant may waive the right to counsel, the trial court must determine that he is competent to stand trial and that he is knowingly and voluntarily waiving his right. See Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321 (1993). That is all the trial court must find. It need not find that the defendant can conduct his defense effectively or as effectively as an attorney. See id. at 399-400, 113 S.Ct. at 2686-87. Thus, while Wise supports his claim that he should have been denied self-representation by pointing out that he wished to present a patently incredible conspiracy theory as his defense (his theory implicated the victim's husband, the police, the prosecutors, and the public defenders in both the murder and an alleged plot to frame Wise for the crime), a poor defense theory alone does not prove that a defendant should not have been allowed to waive the right to counsel. ³ A defendant may effectively waive the right to counsel as long as the two requirements stated in Godinez are satisfied.

Wise claims that the trial court ruled that he could represent himself without first inquiring into his competence to stand trial. A defendant is competent to be tried if he has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding" ⁴ and "a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam) (internal quotation marks omitted). During pretrial proceedings on May 11, 1990, Wise moved to represent himself. The trial court then conducted a hearing on his competence. In this hearing, the court questioned Wise about his mental health, his educational background, his legal knowledge, his understanding of the charges against him, and his appreciation of the risks and burdens of self-representation. At the conclusion of the hearing, the court stated that "the Court has had an opportunity to observe you [Wise] the three or four times that you've been here on various motions. And from my observation of you, both physically and by the nature of questions and answers that you gave ... it's my belief that you're competent to proceed and you've made an intelligent choice to represent yourself." Respondent's Exhibit U at 45. Thus the court did find that Wise had a rational understanding of the proceedings against him and that he therefore was competent to be tried. The court did not quote the Dusky standard verbatim in making its finding, but it was not required to do so: "Trial judges are presumed to know the law and to apply it in making their decisions." Walton v. Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047, 3057, 111 L.Ed.2d 511 (1990). Wise has given us no reason to doubt that this presumption held true here.

Wise asserts that the trial court never determined that his waiver of the right to counsel was knowing and voluntary and, alternatively, that the record does not support this determination. Both assertions are incorrect. For a defendant knowingly and voluntarily to choose to represent himself, "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." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (internal quotation marks omitted). In the competency hearing, Wise explicitly stated that "I knowingly and intelligently waive the right to counsel." Respondent's Exhibit U at 26. Wise also filed a written request to waive counsel. In this request, after acknowledging that he had the right to an attorney and that he might receive the death penalty, Wise concluded that "[k]nowing all of the above, it is my knowing and voluntary desire to waive my right to counsel and to proceed pro se as my own attorney." Respondent's Exhibit D1 at 223-24. The trial court, moreover, did not take Wise's statements at face value. The court spoke with Wise at length about the dangers and disadvantages of self-representation, thus taking proper measures to ensure that Wise's waiver was in fact knowing and voluntary. Finally, in ruling that Wise could proceed pro se, the court stated that it "hereby finds that the defendant's waiver is knowingly and intelligently made, with a full understanding of the risks of self-representation." Respondent's Exhibit U at 45. Thus the court did determine that Wise knowingly and voluntarily waived the right to counsel, and the record supports this determination.

Accordingly, because the trial court committed no error of law and because its factual findings are entitled to the presumption of correctness, a presumption Wise has failed to rebut, we hold that the trial court correctly permitted Wise to represent himself in the guilt phase of the trial.

Next Wise argues that the trial court deprived him of due process by letting him represent himself in a second competency hearing that was held on June 15 and June 28, 1990. As we already have discussed, on May 11, 1990, Wise invoked his constitutional right to defend himself, and, after a thorough hearing on Wise's competence, the trial court properly permitted him to exercise that right. Thus on June 15, 1990, Wise already properly was representing himself. Wise did not request the assistance of a lawyer for the second competency hearing (in fact he objected to the hearing altogether because he believed that he was competent and he was ready to start the trial), and the trial court correctly allowed him to continue pro se. Furthermore, although in this hearing both Wise and the prosecutor attempted to demonstrate Wise's competence, the contrary point of view also was well represented. The trial court held this hearing at the instigation of Wise's standby counsel, Timothy Braun, who had served as Wise's attorney until Wise exercised his right to represent himself, at which time the court ordered Braun to serve as standby counsel, ready to consult with Wise. Braun believed that Wise was incompetent, and he attempted to show this at the hearing. The court allowed Braun to speak and to examine both of the experts who testified. This hearing, like the hearing held one month before, was a fair inquiry into Wise's competence in which Wise was afforded due process.

Wise also claims that in the June 1990 competency hearing the trial court incorrectly found him competent to stand trial because the court applied the wrong legal standard for competence and because the record does not support the finding that he was competent. The conviction of an incompetent person violates due process. See Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815 (1966). In this competency hearing the trial court found that Wise had a rational understanding of the proceedings against him, as...