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Bruce
McGregor DAVIS, Petitioner, v. Paul J. MORRIS, Warden, Respondent.
No. 79 0260-R(P)
UNITED
STATES DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
487
F. Supp. 651; 1980 U.S. Dist. LEXIS 12277 ~ April 29, 1980
COUNSEL:
Larry L. Scissors, Los Angeles, Cal., for petitioner. Howard J.
Schwab, Deputy Atty. Gen.,
Los
Angeles, Cal., for respondent.
OPINIONBY:
REAL OPINION: OPINION The Magistrate has filed his report and
recommendation pursuant to the provisions of 28 U.S.C. §
636(b)(1)(B) and General Order 194 of this Court recommending
issuance of the writ requested by petitioner. The Court disagrees
with the recommendation and is of the opinion that the petition
should be denied. Petitioner was convicted in the Superior Court
for Los Angeles County on two counts of violation of California
Penal Code § 187 (first degree murder) and one count of violation
of California Penal Code
§ 182.1 (conspiracy to commit murder and robbery). He now
challenges the convictions upon the following grounds: 1. Denial
of his constitutional right of self-representation.
2. Coercion of the jury to return a verdict. 3. Intimation
by the trial judge that a guilty verdict should be returned by the
jury. 4. Substitution of an alternate juror during deliberations.
Grounds 2, 3 and 4 are factually unsupportable by the record of
the trial and no violation of the constitutional rights of the
defendants is proven upon those grounds. Petitioner contends that
he was unconstitutionally denied the right of self-representation
guaranteed him by the United States Constitution and expressly
held absolute in Faretta v. California, 422 U.S. 806, 95 S. Ct.
2525, 45 L. Ed. 2d 562 (1975). Petitioner was tried in 1972 and so
the Court must find Faretta (supra) retroactive before petitioner
can receive the benefits of that Supreme Court opinion. The
California Supreme Court in People v. McDaniel, 16 Cal.3d 156, 545
P.2d 843, 127 Cal. Rptr. 467 (1976) eschewed the retroactivity of
Faretta. This Court finds no reason to disagree with the searching
analysis made by Chief Justice Wright writing for a unanimous
court in McDaniel. Petitioner argues that although Faretta may not
be held to be retroactive that he is entitled to relief
nonetheless because the Ninth Circuit had determined that the
right of self-representation was a constitutional right. He relies
on Bittaker v. Enomoto, 587 F.2d 400 (9th Cir. 1978) and Walker v.
Loggins, 608 F.2d 731 (9th Cir. 1979) to support his contentions.
In this regard he reads too much into those decisions. Relying on
Arnold v. United States, 414 F.2d 1056 (9th Cir. 1969) and Bayless
v. United States, 381 F.2d 67 (9th Cir. 1967) the Court in
Bittaker and Loggins (supra) held that a state defendant had a
constitutional right to self-representation before the Supreme
Court's decision in Faretta. In its reliance on Arnold and Bayless
(supra) the Ninth Circuit in Bittaker and Loggins does not clearly
define this right as "absolute" and as such California
courts were free to make determinations of competing rights of
fair trial not addressed to "convenience or efficiency of the
trial." Bittaker (supra) at p. 403, but rather to a
fundamental concern that defendants undertaking to represent
themselves appreciate the seriousness of the charges and present a
meaningful defense in cases involving liberty and possibly even
death. This case presents the question classically for the trial
judge found only superficial understanding of substantial
procedures that would seriously compromise petitioner's defense in
a capital case. Fair trial rights can have no less importance in
the administration of justice than can the right of
self-representation now raised to constitutional dimensions of
absolutism in Faretta. n1
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n1.
Indeed, the Ninth Circuit held prior to Faretta in U. S. v.
Dujanovic, 486 F.2d 182, 186-87 (9th Cir. 1973) that unruly or
obstreperous conduct can well stand as a voluntary relinquishment
of the limited constitutional right to proceed pro se. Davis'
request for leave to proceed pro se in the context of similar
requests by co-defendants Charles Manson and Susan Atkins could
well have persuaded the trial judge to deny Davis such leave in an
effort to avoid the strong probability of disruption.
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The
trial judge was right. Petitioner's constitutional rights have not
been violated by the intervention of Faretta. The petition is
denied.
Bruce
McGregor DAVIS, Petitioner-Appellant, v. Paul J. MORRIS, Warden,
Respondent-Appellee.
No.
80-5695 UNITED STATES COURT OF APPEALS, NINTH CIRCUIT 657 F.2d
1104; 1981
U.S.
App. LEXIS 17224 ~ March 5, 1981, Argued ~ October 1, 1981, Decided
PRIOR HISTORY: Appeal from the United States District Court for
the Central District of California.
COUNSEL:
Larry L. Scissors, Los Angeles, Cal., for petitioner-appellant.
Howard J. Schwab, Los Angeles, Cal., for respondent-appellee.
JUDGES: Before CHAMBERS and HUG, Circuit Judges, and HENDERSON, n*
District Judge. * The Honorable Thelton E. Henderson, United
States District Judge for the Northern District of California,
sitting by designation.
OPINIONBY:
CHAMBERS OPINION: Davis was convicted in California in 1972 of two
counts of first degree murder and of one count of conspiracy to
commit murder and robbery. He was sentenced to concurrent life
sentences with the judge's recommendation that he not be released
during his lifetime unless the California Adult Authority was
convinced that he would not be a danger to the community. We
have reviewed the arguments raised by Davis and find them to be
unpersuasive. We restrict our discussion to the single issue of
his right to represent himself at his trial. When he sought to
assert this right at the outset of his trial, after careful and
thorough questioning, the judge centered his attention on Davis'
ability to conduct his defense so as to preserve his
constitutional rights. He then concluded that Davis was not
authorized to waive his constitutional right to representation by
counsel, a determination that was consistent with California law
prior to the United States Supreme Court's decision three years
later in Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45
L. Ed. 2d 562 (1975). The subject was thereafter renewed but again
the trial judge, after questioning Davis, concluded that Davis
ought to have the services of an attorney for the effective
presentation of his case within constitutional standards then
applicable under California law. An appeal was taken to the
California court of appeal and Davis' attorney presented a variety
of issues, many of them raising claims of error in matters of law,
e. g. the denial of motions for change of venue, for the quashing
of petit and grand jury panels, for severing of counts; error in
the admission of evidence and giving of instructions; a claim of
prosecutor misconduct, etc. In a lengthy opinion, the California
court of appeal rejected these claims of error and also rejected a
claim, made in Davis' reply brief, that he had been denied a
federal constitutional right to represent himself under Faretta v.
California, which was decided three years after Davis' trial, but
while his appeal was pending. The court of appeal's discussion of
the Faretta issue consumed less than a half of a page of the
extensive, 79-page, typed opinion. The court summarily denied
relief on this issue stating that Faretta had recently been held
to be non-retroactive by the California Supreme Court in People v.
McDaniel, 16 Cal.3d 156, 127 Cal. Rptr. 467, 545 P.2d 843 (1976.)
n1 The judgment of conviction was affirmed, the California Supreme
Court denied a hearing, and the United States Supreme Court denied
certiorari.
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n1.
The Eighth Circuit agrees with California on this issue. Martin v.
Wyrick, 568 F.2d 583 (8th Cir. 1980), cert. den. 435 U.S. 975, 98
S. Ct. 1623, 56 L. Ed. 2d 69. Contra: Scott v. Wainwright, 617
F.2d 99 (5th Cir. 1980), cert. den. 449 U.S. 885, 101 S. Ct. 240,
66 L. Ed. 2d 111. As yet, this circuit has not fully explored the
issue. See e.g. Bittaker v. Enomoto, 587 F.2d 400 (9th Cir. 1978).
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In
January 1979, Davis (again through his attorney) filed an
application in federal district court for a writ of habeas corpus.
No such application had been made to the state court. He contended
that Faretta was retroactive in effect. He also argued, now for
the first time, that even if it were not retroactive, the law of
this circuit prior to the decision in Faretta had required that he
be granted his motion to represent himself. The district judge
denied the writ and Davis appealed to this court. 487 F. Supp.
651. In determining that Davis was required under California law,
then in effect, to have the assistance of counsel, the trial judge
obviously considered and articulated those aspects of his inquiry
that were relevant to the law that was then in effect. He had
little reason to anticipate Faretta and even less reason to
anticipate a claim that Faretta would be applied retroactively. On
this record, we cannot tell whether the reasons he expressed were
the totality of his reasons for refusing to allow Davis to proceed
in propria persona. The district judge's opinion, discussing his
reasons for denying the writ, focused on the trial judge's
thorough questioning of Davis in the light of the complexities of
the case, reasons now discarded by Faretta. But his opinion also
states: "Davis' request for leave to proceed pro se in the
context of similar requests by co-defendants Charles Manson and
Susan Atkins could well have persuaded the trial judge to deny
Davis such leave in an effort to avoid the strong probability of
disruption.” In this circuit, before Faretta, the right to
self-representation could be denied if a defendant engaged in, or
there was reason to fear, obstructionist or unruly conduct. United
States v. Dujanovic, 486 F.2d 182 (9th Cir. 1973). Nothing in
Bittaker v. Enomoto, 587 F.2d 400 (9th Cir. 1978), says otherwise,
and Justice Stewart's statement in Faretta, is of some importance:
"... the trial judge may terminate self-representation by a
defendant who deliberately engages in serious and obstructionist
misconduct." 422 U.S. at 834, fn. 46, 95 S. Ct. at 2541, fn.
46.The brutality of these murders, the association of Davis with
Manson and Atkins, and the widespread publicity about the
purportedly bizarre activities of members of the "Manson
family," may have been a concern to the trial judge. We
simply have no way of knowing if this was so or if, perhaps, there
had been conduct by Davis or by potential witnesses or spectators
that might have affected the trial judge's view in denying the
motion to proceed in propria persona. The trial judge is still
serving actively on the California bench and we believe that we
should afford the state the opportunity for a hearing as to the
reasons that led him to deny Davis' motions to represent himself.
Then probably state relief should be exhausted on the point of
Ninth Circuit law, raised here for the first time. Given the state
of the record, we believe it would be improper at this time to
address the broader constitutional question of the retroactivity
of Faretta. Remanded to the district court with the suggestion
that it vacate its order denying the writ. Full jurisdiction is
back in the district court, and if the petitioner returns to this
court, it would be on a new appeal.
BRUCE
McGREGOR DAVIS, Petitioner and Appellant, v. PAUL J. MORRIS,
Warden, Respondent and Appellee
No. 82-5569 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
719 F.2d 324; 1983
U.S. App. LEXIS 15757 ~ October 18, 1983, Submitted ~ October 28,
1983, Decided
PRIOR HISTORY:
Appeal
from the United States District Court for the Central District of
California.
Manuel L. Real,
District Judge,
Presiding. DISPOSITION: AFFIRMED.
COUNSEL:
Larry L. Scissors, Esq., Los Angeles, California, for
Appellant/Petitioner. Howard Schwab, Esq., Dep. Atty. Gen., Los
Angeles, California, for Appellee/Respondent. JUDGES: Chambers and
Hug, Circuit Judges, and Henderson, * District Judge.
*
The Honorable Thelton E. Henderson, United States District Judge
for the Northern District of California, sitting by designation.
OPINIONBY: CHAMBERS OPINION:
CHAMBERS, Circuit Judge: In Davis v. Morris, 657 F.2d 1104 (9th
Cir. 1981), we considered Davis' contention that he had been
unlawfully denied the right to represent himself at his murder
trial in the California state courts in 1972. The district judge,
in his opinion denying a writ of habeas corpus, had stressed
evidence of the trial judge's obvious concern for Davis' ability
to represent himself competently in this very serious criminal
matter. 487 F. Supp. 651 (C.D. Cal. 1980). He also noted that the
fear of disruptive activity could well have influenced the trial
judge's decision to deny the request to proceed in propria
persona. See United States v. Dujanovic, 486 F.2d 182 (9th Cir.
1973). As the trial had occurred long before Faretta v.
California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975),
had been decided, and as the record suggested a basis for the
district judge's evaluation, we remanded the case to the district
court to permit a fuller inquiry into the trial judge's reasoning
in denying self-representation. Counsel for the parties appeared
before the California trial judge, who made a statement of his
recollection of the case and of the decision with respect to
Davis' motion for self-representation. The judge then invited
counsel to ask questions and we detect no limitations in that
process. He answered questions and a transcript was prepared of
the entire proceedings. On a review of that transcript the
district judge again denied the writ on the ground of the
petitioner's incompetency to represent himself and also on the
ground of the atmosphere of potential disruption. We find no
prejudice to the appellant as the result of this manner of
proceeding. Rhinehart v. Gunn, 661 F.2d 738 (9th Cir. 1981).
Moreover, we have reviewed the transcript of the proceedings
before the trial judge and we conclude that in the factual
circumstances of this case, there was ample warrant for the denial
of Davis' attempt to represent himself both under pre-Faretta and
post-Faretta law. The motion for self-representation was made at a
time when Davis was a co-defendant with Charles Manson and other
members of the so-called "Manson family." The trial
judge described the courtroom appearances of other members of that
"family" as spectators, distinctive by their shaved
heads and by the markings on their foreheads. Significantly, he
remembered: ~ There was a coordination of activity between the
Manson people. When Charles Manson did something, they nearly
always followed it, so that even Steven Grogan and Susan Atkins,
who could hardly put one sentence one after the other, made
motions to proceed pro per because Charles Manson did and because
Davis followed suit. ~ The trial judge stated that Manson
"was inclined to be disruptive of almost any proceeding where
he was present." The close association between the
codefendants was definitely in the judge's mind and he was
concerned "for the usual and orderly course of a presentation
at a trial." He noted particularly the fact that ~ . . .
there was no lack of communication, so far as I was able to hear,
between the prisoners. They were all in custody, of course, but
they were even allowed to, for the purpose of the trial, associate
with each other and to meet from time to time. ~ It was his
conclusion that Charles Manson would have been "calling the
strategy." Counsel inquired: You mentioned something before
that Charles Manson was sort of calling the shots as to his
followers. Based upon this at the time you made the ruling, did
you believe that Bruce Davis could make a knowing and intelligent
waiver of counsel? ~ The trial judge responded, "I didn't
think he could . . . I thought he wasn't acting independently, in
any event." After Davis' case was severed from that of Manson
and Atkins, the following statement was made by the court: Very
well. The court will take it that the stipulation will prevail as
to any pretrial motion, that it is deemed to have been made in
this proceeding just as it was in the proceedings -- in the
proceeding before this court prior to separation of the defendant
for trial. ~ Counsel for the defendant stated: Well, Your Honor,
initially, if I may, I would like to incorporate -- incorporate
the proceedings had in the prior trial when all the defendants
were joined, at which a motion to quash the petit jury venire was
made. And the court -- there was at that time certain evidence
introduced. There were certain stipulations entered into. I would
request that those same matters be deemed presented by way of
evidence and the same stipulations stipulated to by both sides. ~
It thus appears that no specific motion for self-representation
was reasserted at this time. The trial judge stated that, on this
record, "I would say -- it would just be guessing and
speculating -- that the motion to proceed pro per would not have
been considered by me at that time." The record demonstrates
that following the severance of Davis' case from that of the other
defendants, evidence of changed circumstances (if any) was not put
before the court in sufficient form as to any change of
circumstances warranting a reconsideration of the denial of that
motion for self-representation. On this record, appellant cannot
claim he was improperly denied self-representation after the
severance of this case from the others. The representation of
Davis on this and the former appeal has been of the highest
quality and we commend his attorney. We rest our decision on the
factual circumstances of this case, as attested to by the judge
who tried it, by the review of the district judge, and by our own
review of the record. The writ of habeas corpus was properly
denied. Affirmed. |
