Supreme Court of the United States
DAN V. McKASKLE,
Acting Director of the Texas Department of Corrections
CARL EDWIN WIGGINS
Decided January 23, 1984
Justice O’Connor, For the Court
McKaskle v. Wiggins, 465 U.S. 168 (1984), is a United States Supreme Court case in which the court considered the role of standby counsel in a criminal trial where the defendant conducted his own defense (pro se). In this case the defendant claimed his Sixth Amendment right to present his own case in a criminal trial was violated by the presence of a court-appointed standby counsel.
|Topic: Criminal Procedure*||Court vote: 6–3|
Click any Justice for detailJoining O'Connor opinion: Chief Justice BURGER Justice POWELL Justice REHNQUIST Justice STEVENS
|Holding: “Respondent's Sixth Amendment right to self-representation was not violated by the presence of a court-appointed standby counsel.”|
|Citation: 465 U.S. 168||Docket: 82–1135||Audio: Listen to this case's oral arguments at Oyez|
* As categorized by the Washington University Law Supreme Court Database
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JUSTICE O'CONNOR delivered the opinion of the Court.
In Faretta v. California, 422 U. S. 806 (1975), this Court recognized a defendant's Sixth Amendment right to conduct his own defense. The Court also held that a trial court may appoint "standby counsel" to assist the pro se defendant in his defense. Today we must decide what role standby counsel who is present at trial over the defendant's objection may play consistent with the protection of the defendant's Faretta rights.
Carl Edwin Wiggins was convicted of robbery and sentenced to life imprisonment as a recidivist. His conviction was set aside because of a defective indictment. When Wiggins was retried, he was again convicted and sentenced to life imprisonment. Standby counsel were appointed to assist Wiggins at both trials. Wiggins now challenges counsel's participation in his second trial.
Prior to the first trial, a hearing was held on Wiggins' motion to proceed pro se. The court granted the motion, Record 4a, but simultaneously appointed two attorneys to act as standby counsel. Wiggins initially objected to their presence. Id. at 11a. Shortly thereafter, however, counsel asked Wiggins how they should conduct themselves at trial, and Wiggins expressly requested that they bring appropriate objections directly to the attention of the court, without first consulting him. Id. at 37a. After the trial, newly appointed counsel discovered that the original indictment was defective, and a new trial was granted.
On April 16, 1973, about two months before the second trial began, Wiggins filed a request for appointed counsel, stating that he wished to rescind his earlier waiver of counsel. App. A-5 A-55. [ Footnote 1 ] The next day, Wiggins filled out and signed a form captioned "Petition for Appointment of Counsel and Order Thereon." [ Footnote 2 ] The trial court appointed Benjamin Samples. About a month later, Wiggins filed an additional request for counsel. [ Footnote 3 ] Five days later, Wiggins filled out another appointment of counsel form, and the trial court appointed R. Norvell Graham.
Wiggins' wishes respecting appointed counsel remained volatile as his second trial approached. When pretrial proceedings began on June 4, 1973, Wiggins announced that he would be defending himself pro se; he then firmly requested that counsel not be allowed to interfere with Wiggins' presentations to the court. Record 8, 12, 39-40. Wiggins reaffirmed his desire to proceed pro se on the following morning, June 5, and objected even to the court's insistence that counsel remain available for consultation. Id. at 66-67. The trial began later that day, and shortly thereafter, Wiggins interrupted his cross-examination of a witness to consult with Graham off the record. Id. at 201. Still later, Wiggins expressly agreed to allow Graham to conduct voir dire of another witness. Id. at 210.
Wiggins started the next day of trial, June 6, with a request that the trial not proceed in Samples' absence from the courtroom. Id. at 255. Later that morning, Wiggins requested that counsel not be allowed to assist or interrupt, id. at 308, but a short while after, Wiggins interrupted his own cross-examination of a witness to confer with Samples off the record. Id. at 310. When the trial reconvened in the afternoon, Wiggins agreed to proceed in Samples' absence. Id. at 328. After Samples returned, however, Wiggins again interrupted his own cross-examination of a witness to confer with him. Id. at 333. Later, Wiggins insisted that counsel should not initiate private consultations with him. Id. at 345-346. Before the end of the day, Wiggins once again found occasion to interrupt his own examination of a witness to confer with Samples. Id. at 384.
On the following day, June 7, Wiggins agreed that Graham would make Wiggins' opening statement to the jury. Id. at 486. On June 8, Wiggins was once again willing to have the trial proceed in the absence of one of his standby counsel. Id. at 546. Following his conviction, Wiggins moved for a new trial. A t the July 31 hearing on Wiggins' motion, he denounced the services standby counsel had provided. He insisted that they had unfairly interfered with his presentation of his defense. Id. at 572b.
After exhausting direct appellate and state habeas review, Wiggins filed a petition for federal habeas corpus relief. He argued that standby counsel's conduct deprived him of his right to present his own defense, as guaranteed by Faretta. The District Court denied the habeas petition, but the Court of Appeals for the Fifth Circuit reversed. Wiggins v. Estelle, 681 F.2d 266, rehearing denied, 691 F.2d 213 (1982). The Court of Appeals held that Wiggins' Sixth Amendment right of self-representation was violated by the unsolicited participation of overzealous standby counsel:
[T]he 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, to be used or not used as the defendant sees fit.
681 F.2d at 273 (footnote omitted).
We do not accept the Court of Appeals' rule, and reverse its judgment.
In Faretta, the Court considered the case of a criminal defendant who was required to present his defense exclusively through counsel. The Court held that an accused has a Sixth Amendment right to conduct his own defense, provided only that he knowingly and intelligently forgoes his right to counsel and that he is able and willing to abide by rules of procedure and courtroom protocol. Faretta concluded that,
[u]nless the accused has acquiesced in [representation through counsel], the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense.
422 U.S. at 422 U. S. 821.
Faretta's holding was based on the longstanding recognition of a right of self-representation in federal and most state courts, and on the language, structure, and spirit of the Sixth Amendment. Under that Amendment, it is the accused, not counsel, who must be "informed of the nature and cause of the accusation," who has the right to confront witnesses, and who must be accorded "compulsory process for obtaining witnesses in his favor." The Counsel Clause itself, which permits the accused "to have the Assistance of Counsel for his defence," implies a right in the defendant to conduct his own defense, with assistance at what, after all, is his, not counsel's trial.
A defendant's right to self-representation plainly encompasses certain specific rights to have his voice heard. The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial. The record reveals that Wiggins was, in fact, accorded all of these rights.
Before trial Wiggins moved the trial court to order preparation of a transcript of the first trial. He, not standby counsel, then waived receipt of the transcript and announced ready for trial. Record 7-11, 65-66. He filed and argued at least 12 pro se motions in pretrial proceedings. [ Footnote 4 ] Wiggins alone conducted the defense's voir dire of prospective jurors [ Footnote 5 ] and made the opening statement for the defense to the jury. Id. at 347-348.
Wiggins filed numerous pro se motions in the course of the trial. [ Footnote 6 ] He cross-examined the prosecution's witnesses freely, id. at 26-30, 199-206, 224-226, 228-237, 269-286, 290-292, 296-301, 310, 319-326, 332-336, 434-447, 455-468, 532-534, and registered his own objections, id. at 237, 238, 317, 318, 352, 353-359, 418-420, 450, 484, 485, 497, 502-503, 536. Throughout the trial, Wiggins selected the witnesses for the defense, id. at 47, 56, 60-61, 348, 368, 381, 383, 384, 393, 396, 398-399, 403, 408, 412, 413, 424, examined them, id. at 47-55, 349-351, 363-367, 368-373, 374-376, 380-381, 381-382, 383-384, 384-387, 399-401, 404-407, 408-412, 424-426, decided that certain questions would not be asked by the defense, id. at 414, 449-450, and decided which witnesses would not be called, id. at 390, 415, 422. Against counsel's advice, Wiggins announced that the defense rested. Id. at 413. Wiggins filed his own requested charges to the jury, id. at 471-473, and made his own objections to the court's suggested charge, id. at 473-478. He obtained the removal of one of the court's proposed charges over counsel's express objection, id. at 478, approved the verdict form supplied to the jury, id. at 479, and gave a closing argument to the jury, id. at 490-497. Wiggins elected to go to the jury at the punishment phase of his trial, id. at 69, and he argued his case to the jury at that stage as well, id. at 540-541.
Wiggins' complaint is directed not at limits placed on his participation in the trial, for there clearly were none. It is directed instead at the allegedly inadequate limits placed on standby counsel's participation. At trial, Wiggins objected to the very fact that counsel would remain available to assist him. Id. at 66-67. Wiggins has abandoned that objection; he now contends only that his Faretta right to present his defense pro se was impaired by the distracting, intrusive, and unsolicited participation of counsel throughout the trial.
Wiggins claims, and the Court of Appeals agreed, that the pro se defendant may insist on presenting his own case wholly free from interruption or other uninvited involvement by standby counsel. Wiggins relies primarily on Faretta's sole reference to standby counsel:
Of course, a State may -even over objection by the accused -appoint a 'standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary. See United States v. Dougherty, 154 U.S.App.D.C. 76, 87-89, 473 F.2d 1113, 1124-1126.
422 U.S. at 422 U. S. 835, n. 46. Wiggins contends that the "if and when" language defines the limits on standby counsel's role. He argues that the Faretta right will be eviscerated if counsel is allowed to argue with the defendant, make motions to the court contrary to the defendant's wishes, and take other steps not specifically approved by the defendant.
In our view, both Faretta's logic and its citation of the Dougherty case indicate that no absolute bar on standby counsel's unsolicited participation is appropriate or was intended. The right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused's best possible defense. Both of these objectives can be achieved without categorically silencing standby counsel.
In determining whether a defendant's Faretta rights have been respected, the primary focus must be on whether the defendant had a fair chance to present his case in his own way. Faretta itself dealt with the defendant's affirmative right to participate, not with the limits on standby counsel's additional involvement. The specific rights to make his voice heard that Wiggins was plainly accorded, see supra at 465 U. S. 174 -175, form the core of a defendant's right of self-representation.
We recognize, nonetheless, that the right to speak for oneself entails more than the opportunity to add one's voice to a cacophony of others. As Wiggins contends, the objectives underlying the right to proceed pro se may be undermined by unsolicited and excessively intrusive participation by standby counsel. In proceedings before a jury, the defendant may legitimately be concerned that multiple voices "for the defense" will confuse the message the defendant wishes to convey, thus defeating Faretta's objectives. [ Footnote 7 ] Accordingly, the Faretta right must impose some limits on the extent of standby counsel's unsolicited participation. [ Footnote 8 ]
First, the pro se defendant is entitled to preserve actual control over the case he chooses to present to the jury. This is the core of the Faretta right. If standby counsel's participation over the defendant's objection effectively allows counsel to make or substantially interfere with any significant tactical decisions, or to control the questioning of witnesses, or to speak instead of the defendant on any matter of importance, the Faretta right is eroded.
Second, participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself. [ Footnote 9 ] The defendant's appearance in the status of one conducting his own defense is important in a criminal trial, since the right to appear pro se exists to affirm the accused's individual dignity and autonomy. In related contexts, the courts have recognized that a defendant has a right to be present at all important stages of trial, Snyder v. Massachusetts, 291 U. S. 97 (1934), that he may not normally be forced to appear in court in shackles or prison garb, Estelle v. Williams, 425 U. S. 501, 425 U. S. 504 -505 (1976), and that he has a right to present testimony in his own behalf, see Harris v. New York, 401 U. S. 222, 401 U. S. 225 (1971); Brooks v. Tennessee, 406 U. S. 605, 406 U. S. 612 (1972). Appearing before the jury in the status of one who is defending himself may be equally important to the pro se defendant. From the jury's perspective, the message conveyed by the defense may depend as much on the messenger as on the message itself. From the defendant's own point of view, the right to appear pro se can lose much of its importance if only the lawyers in the courtroom know that the right is being exercised.
Participation by standby counsel outside the presence of the jury engages only the first of these two limitations. A trial judge, who in any event receives a defendant's original Faretta request and supervises the protection of the right throughout the trial, must be considered capable of differentiating the claims presented by a pro se defendant from those presented by standby counsel. Cf. United States v. Martinez, 597 F.2d 509, 510-511 (CA5), cert. denied, 444 U.S. 979 (1979); United States v. Penick, 496 F.2d 1105, 1108 (CA7), cert. denied, 419 U.S. 897 (1974); United States v. Reeves, 348 F.2d 469 (CA2 1965), cert. denied, 383 U.S. 929 (1966). Accordingly, the appearance of a pro se defendant's self-representation will not be unacceptably undermined by counsel's participation outside the presence of the jury.
Thus, Faretta rights are adequately vindicated in proceedings outside the presence of the jury if the pro se defendant is allowed to address the court freely on his own behalf and if disagreements between counsel and the pro se defendant are resolved in the defendant's favor whenever the matter is one that would normally be left to the discretion of counsel. [ Footnote 10 ]
Most of the incidents of which Wiggins complains occurred when the jury was not in the courtroom. In the jury's absence, Wiggins' two standby counsel frequently explained to the trial judge their views and points of disagreement with Wiggins. Counsel made motions, dictated proposed strategies into the record, [ Footnote 11 ] registered objections to the prosecution's testimony, urged the summoning of additional witnesses, and suggested questions that the defendant should have asked of witnesses.
On several occasions Wiggins expressly adopted standby counsel's initiatives. When counsel moved to quash a jury panel, for example, Wiggins joined the motion. Record 8182. Wiggins seconded counsel's requests for a police report and photographs. Id. at 51-52, 54. At least twice, counsel made a motion, the motion was denied, and Wiggins then registered his exception to the denial. [ Footnote 12 ]
On several other occasions, Wiggins strongly opposed the initiatives of counsel. He resisted counsel's suggestion that the trial be postponed so that the transcript of his prior trial could be prepared, [ Footnote 13 ] and he waived counsel's right to a 10-day preparation period, which counsel wished to invoke. Id. at 64-66. In the course of a pretrial discussion concerning a discovery request, Wiggins indignantly demanded that counsel not participate further without invitation. Id. at 39-40. Later, Wiggins successfully opposed the inclusion in the jury instructions of a charge that counsel felt should be included. Id. at 476-478.
The most acrimonious exchange between Graham and Wiggins occurred in the course of questioning a witness on voir dire. Wiggins suggests this exchange was typical of counsel's overbearing conduct, but he fails to place the incident in context. Wiggins had expressly agreed to have Graham conduct the voir dire, id. at 210, but Wiggins attempted to take over the questioning in midstream. Plainly exasperated, Graham used profanity and curtly directed Wiggins to "[s]it down." [ Footnote 14 ]
Though several of these incidents are regrettable, we are satisfied that counsel's participation outside the presence of the jury fully satisfied the first standard we have outlined. Wiggins was given ample opportunity to present his own position to the court on every matter discussed. He was given time to think matters over, to explain his problems and concerns informally, and to speak to the judge off the record. Standby counsel participated actively, but for the most part in an orderly manner. The one instance of overbearing conduct by counsel was a direct result of Wiggins' own indecision as to who would question the witness on voir dire. Wiggins was given abundant opportunity to argue his contentions to the court.
Equally important, all conflicts between Wiggins and counsel were resolved in Wiggins' favor. The trial judge repeatedly explained to all concerned that Wiggins' strategic choices, not counsel's, would prevail. Id. at 12-13, 65, 210, 223-224, 306-308, 341-342, 345-346, 414-415, 427, 430, 450, 477-478. Not every motion made by Wiggins was granted, but in no instance was counsel's position adopted over Wiggins' on a matter that would normally be left to the defense's discretion.
Participation by standby counsel in the presence of the jury is more problematic. It is here that the defendant may legitimately claim that excessive involvement by counsel will destroy the appearance that the defendant is acting pro se. This, in turn, may erode the dignitary values that the right to self-representation is intended to promote, and may undercut the defendant's presentation to the jury of his own most effective defense. Nonetheless, we believe that a categorical bar on participation by standby counsel in the presence of the jury is unnecessary.
In measuring standby counsel's involvement against the standards we have described, it is important not to lose sight of the defendant's own conduct. A defendant can waive his Faretta rights. Participation by counsel with a pro se defendant's express approval is, of course, constitutionally unobjectionable. A defendant's invitation to counsel to participate in the trial obliterates any claim that the participation in question deprived the defendant of control over his own defense. Such participation also diminishes any general claim that counsel unreasonably interfered with the defendant's right to appear in the status of one defending himself.
Although this is self-evident, it is also easily overlooked. A defendant like Wiggins, who vehemently objects at the beginning of trial to standby counsel's very presence in the courtroom, may express quite different views as the trial progresses. Even when he insists that he is not waiving his Faretta rights, a pro se defendant's solicitation of or acquiescence in certain types of participation by counsel substantially undermines later protestations that counsel interfered unacceptably.
The record in this case reveals that Wiggins' pro se efforts were undermined primarily by his own, frequent changes of mind regarding counsel's role. Early in the trial Wiggins insisted he wished to proceed entirely without assistance, but, shortly thereafter, he expressly agreed that counsel should question a witness on voir dire. Wiggins objected vehemently to some of counsel's motions, but warmly embraced others. Initially, Wiggins objected to standby counsel's presence; later he refused to allow the trial to proceed in their absence; in the end, he agreed that counsel would make a closing statement for the defense. The only two long appearances by counsel at Wiggins' trial, one before the jury and one outside its presence, were both initiated with Wiggins' express approval. Record 210-223, 241-243; 486-489. In these circumstances, it is very difficult to determine how much of counsel's participation was, in fact, contrary to Wiggins' desires of the moment.
Faretta does not require a trial judge to permit "hybrid" representation of the type Wiggins was actually allowed. But if a defendant is given the opportunity and elects to have counsel appear before the court or jury, his complaints concerning counsel's subsequent unsolicited participation lose much of their force. A defendant does not have a constitutional right to choreograph special appearances by counsel. Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.
Faretta rights are also not infringed when standby counsel assists the pro se defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task, such as introducing evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete. Nor are they infringed when counsel merely helps to ensure the defendant's compliance with basic rules of courtroom protocol and procedure. In neither case is there any significant interference with the defendant's actual control over the presentation of his defense. The likelihood that the defendant's appearance in the status of one defending himself will be eroded is also slight, and, in any event, it is tolerable. A defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure. Nor does the Constitution require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course. Faretta recognized as much.
The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.
422 U.S. at 422 U. S. 835, n. 46.
Accordingly, we make explicit today what is already implicit in Faretta : a defendant's Sixth Amendment rights are not violated when a trial judge appoints standby counsel -even over the defendant's objection -to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant's achievement of his own clearly indicated goals. Participation by counsel to steer a defendant through the basic procedures of trial is permissible even in the unlikely event that it somewhat undermines the pro se defendant's appearance of control over his own defense.
At Wiggins' trial, a significant part of standby counsel's participation both in and out of the jury's presence involved basic mechanics of the type we have described -informing the court of the whereabouts of witnesses, supplying Wiggins with a form needed to elect to go to the jury at the punishment phase of trial, explaining to Wiggins that he should not argue his case while questioning a witness, and so on. See Record 9, 11-12, 45, 50, 69, 191, 206, 232, 251, 254, 255, 391, 393, 396, 404, 406, 471. When Wiggins attempted to introduce a document into evidence, but failed to mark it for identification or to lay a predicate for its introduction, counsel, at the trial court's suggestion, questioned the witness to lay an appropriate predicate, and Wiggins then resumed his examination. Id. at 293-296. Similarly, the trial judge repeatedly instructed Wiggins to consult with counsel, not with the court, regarding the appropriate procedure for summoning witnesses. Id. at 204-205, 207-208, 248, 272, 395, 396, 402.
Notwithstanding Wiggins' several general objections to the presence and participation of counsel, we find these aspects of counsel's involvement irreproachable. None interfered with Wiggins' actual control over his defense; none can reasonably be thought to have undermined Wiggins' appearance before the jury in the status of a pro se defendant.
Putting aside participation that was either approved by Wiggins or attendant to routine clerical or procedural matters, counsel's unsolicited comments in front of the jury were infrequent, and for the most part innocuous. On two occasions, Graham interrupted a witness' answer to a question put by Wiggins. Id. at 204, 287. The first interruption was trivial. When the second was made, the jury was briefly excused and subsequently given a cautionary instruction as requested by Graham. Wiggins made no objection. Standby counsel also moved for a mistrial three times in the presence of the jury. Id. at 262, 421-422, 498-499. Each motion was in response to allegedly prejudicial questions or comments by the prosecutor. Wiggins did not comment on the first motion, but he opposed the following two. All three motions were immediately denied by the trial court. Regrettably, counsel used profanity to express his exasperation on the second occasion. [ Footnote 15 ] Finally, counsel played an active role at the punishment phase of the trial. The record supplies no explanation for the sudden change in this regard. Wiggins made no objection to counsel's participation in this phase of the trial. We can only surmise that, by then, Wiggins had concluded that appearing pro se was not in his best interests.
The statements made by counsel during the guilt phase of the trial, in the presence of the jury and without Wiggins' express consent, occupy only a small portion of the transcript. Most were of an unobjectionable, mechanical sort. While standby counsel's participation at Wiggins' trial should not serve as a model for future trials, we believe that counsel's involvement fell short of infringing on Wiggins' Faretta rights. Wiggins unquestionably maintained actual control over the presentation of his own defense at all times.
We are also persuaded that Wiggins was allowed to appear before the jury in the status of one defending himself. At the outset, the trial judge carefully explained to the jury that Wiggins would be appearing pro se. Record 84. Wiggins, not counsel, examined prospective jurors on voir dire, cross-examined the prosecution's witnesses, examined his own witnesses, and made an opening statement for the defense. Wiggins objected to the prosecutor's case at least as often as did counsel. If Wiggins' closing statement to the jury had to compete with one made by counsel, it was only because Wiggins agreed in advance to that arrangement.
By contrast, counsel's interruptions of Wiggins or witnesses being questioned by Wiggins in the presence of the jury were few and perfunctory. Most of counsel's uninvited comments were directed at the prosecutor. [ Footnote 16 ] Such interruptions present little threat to a defendant's Faretta rights, at least when the defendant's view regarding those objections has not been clearly articulated. On the rare occasions that disagreements between counsel and Wiggins were aired in the presence of the jury, the trial judge consistently ruled in Wiggins' favor. This was a pattern more likely to reinforce than to detract from the appearance that Wiggins was controlling his own defense. [ Footnote 17 ] The intrusions by counsel at Wiggins' trial were simply not substantial or frequent enough to have seriously undermined Wiggins' appearance before the jury in the status of one representing himself.
Faretta affirmed the defendant's constitutional right to appear on stage at his trial. We recognize that a pro se defendant may wish to dance a solo, not a pas de deux. Standby counsel must generally respect that preference. But counsel need not be excluded altogether, especially when the participation is outside the presence of the jury or is with the defendant's express or tacit consent. The defendant in this case was allowed to make his own appearances as he saw fit. In our judgment, counsel's unsolicited involvement was held within reasonable limits.
The judgment of the Court of Appeals is therefore Reversed.
JUSTICE BLACKMUN concurs in the result.
[ Footnote 1 ]
Wiggins' letter to the trial judge stated:
I wish to rescind my earlier request to waive court appointed assistance counsel and request that this honorable court appoint counselto assist me. I would appreciate very much if the court would appoint the Honorable Stewart J. Alexander who was previously appointed to assist on appeal, before sentence was set aside. And I apologize if I have caused an inconvenience to the court.
Record 584 (original emphasis).
[ Footnote 2 ]
The petition read:
Now comes Carl Edwin Wiggins, defendant in the above styled and numbered cause, and respectfully petitions the Court to appoint counsel to represent him in said felony cause and would show to the Court that he is too poor to employ counsel.
Id. at 586.
[ Footnote 3 ]
This request read in pertinent part:
I have been indicted four (4) times of the same offense.... According to Higgins v. State and Snow v. State, where prosecutions were dismissed -and according to VACCP Art. 28.13, I should'nt [sic] be tried again. Will you please appoint counsel to cite authorities on this issue, also, in favor of the state. I find only authorities indicating that further prosecution is barred. None indicating other-wise [ sic ].
Id. at 623 (original emphasis).
[ Footnote 4 ]
These included a motion for discovery, id. at 14, a motion to set aside the indictment, id. at 16, a double jeopardy claim, id. at 17-22, a motion in limine, a motion for special relief, id. at 23-24, a motion to correct an offense report, id. at 31, a motion for discovery of any exculpatory material in the prosecutor's file, id. at 33, a motion to keep a marked document out of the sight of the jury, id. at 42, a motion to sequester the jury, id. at 44-45, another motion in limine, id. at 57-58, a motion for a change of venue (withdrawn by the defendant), id. at 59, a motion for a speedy trial, id. at 60, a motion for a jury shuffle, id. at 67-68, and a motion for witness fees, id. at 69-70.
[ Footnote 5 ]
Wiggins made an opening statement to the venire, id. at 101-103, and examined 33 individual venirepersons. Id. at 106-185.
[ Footnote 6 ]
These included a motion for acquittal, a motion to question a witness out of the presence of the jury, and a motion for the appointment of an investigator. Id. at 342-344, 392-393, 394-395.
[ Footnote 7 ]
A pro se defendant must generally accept any unsolicited help or hindrance that may come from the judge who chooses to call and question witnesses, from the prosecutor who faithfully exercises his duty to present evidence favorable to the defense, from the plural voices speaking "for the defense" in a trial of more than one defendant, or from an amicus counsel appointed to assist the court, see Brown v. United States, 105 U.S.App.D.C. 77, 83, 264 F.2d 363, 369 (1959) (Burger, J., concurring in part).
[ Footnote 8 ]
Since the right of self-representation is a right that, when exercised, 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.
As a corollary, however, a defendant who exercises his right to appear pro se "cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel.'" Faretta, 422 U.S. at 422 U. S. 835, n. 46. Moreover, the defendant's right to proceed pro se exists in the larger context of the criminal trial designed to determine whether or not a defendant is guilty of the offense with which he is charged. The trial judge may be required to make numerous rulings reconciling the participation of standby counsel with a pro se defendant's objection to that participation; nothing in the nature of the Faretta right suggests that the usual deference to "judgment calls" on these issues by the trial judge should not obtain here as elsewhere.
[ Footnote 9 ]
Faretta anticipated this second requirement. In its footnote on standby counsel Faretta cited three pages of United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113 (1972), in which we find this statement:
The utility of an amicus appointment is dependent on explanation to and cooperation by [the] defendant, and on understanding, too, that he may claim with some merit that his pro se rights include his right to appear before the jury in the status of one defending himself, and that this is defeated if a too conspicuous role is played by an attorney, unless it clearly appears to the jury that he does not have the status of defense counsel.
Id. at 88, 473 F.2d at 1125 (footnote omitted).
[ Footnote 10 ]
Cf. ABA Standards For Criminal Justice 6-3.7 (2d ed.1980) (standby counsel may "call the judge's attention to matters favorable to the accused upon which the judge should rule on his or her motion..."); Uniform Rule of Criminal Procedure 711 (1974) (same); Mayberry v. Pennsylvania, 400 U. S. 455, 400 U. S. 467 -468 (1971) (BURGER, C.J., concurring) (same).
[ Footnote 11 ]
Record 344-345, 414-415, 427-428, 449-450, 478.
[ Footnote 12 ]
See id. at 243, 246; 447, 449. On other occasions, Wiggins simply did not react to standby counsel's participation. See, e.g., id. at 32.
[ Footnote 13 ]
Id. at 7-9. Wiggins later came to regret the unavailability of the transcript, and claimed that he had never waived his right to receive it. Id. at 252-254.
[ Footnote 14 ]
Id. at 215, 218, 223. Wiggins was given a full opportunity to question the witness when Graham had finished. Id. at 224-226, 228-237.
[ Footnote 15 ]
MR. GRAHAM: Objection, Your Honor. The district attorney is testifying.
THE COURT: Don't lead.
MR. GRAHAM: I ask the Court to instruct the jury to disregard the remarks of counsel as not being testimony in the case.
THE COURT: The Court will instruct the jury to disregard the last statement made by Mr. Rodriguez.
MR. GRAHAM: Notwithstanding the Court's instruction, I am sure it is so prejudicial as to require a mistrial.
DEFENDANT: No, Your Honor. I object to a mistrial. I object to counsel -
THE COURT: I denied the motion for mistrial. Overruled.
MR. GRAHAM: Jesus Christ.
Id. at 421-422.
[ Footnote 16 ]
Graham registered about 15 objections during the course of the prosecutor's questioning of witnesses and closing argument. Id. at 196, 261-262, 301, 302, 304, 339-340, 420-421, 498, 501. These involved pedestrian matters such as hearsay, leading the witness, calling for a conclusion, evidence not in the record, and so on. All but one, id. at 339-340, were made without comment from Wiggins, and most were sustained by the trial judge without argument from the prosecutor. We note that, at his first trial, Wiggins, when asked, agreed that standby counsel should make objections without first consulting Wiggins. Id. at 37a. On several occasions at the second trial, Wiggins expressly joined counsel's objections or motions.
[ Footnote 17 ]
It might be suggested that the very fact that the trial was interrupted several times by standby counsel prevented Wiggins from presenting his own defense effectively to the jury. This line of argument does not withstand scrutiny here. By our count, the jury left the courtroom 15 times between the time when the indictment was read and the time when the jury retired to deliberate on the question of guilt. As best we can tell, four of these interruptions were caused by standby counsel, id. at 287, 307, 341, 413, four by Wiggins himself, id. at 356, 389, 393, 403, and seven by the court. Id. at 207, 244, 327, 373, 392, 424. Likewise, we count 15 conferences, off the record but in the presence of the jury, between Wiggins and his counsel. Eight appear to have been initiated by Wiggins, id. at 191, 201, 333, 340, 384, 406 (two), 450, and four by standby counsel, id. at 340, 407, 415, 469; we cannot determine who initiated the remaining three, id. at 280, 337, 412. Certainly the trial judge expressed his view that Wiggins himself was responsible for most of the delays and interruptions. Id. at 397. In these circumstances, the interruptions caused by standby counsel did not significantly detract from Wiggins' control, or appearance of control, over his pro se defense.
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