REVISED NOVEMBER 7, 2001
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 00-20538
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GLEN M. DAVIS, also known as Glen Davis,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court for the Southern
District of Texas, Houston
___________________________________________________
October 4, 2001
Before DAVIS and JONES, Circuit Judges, and BARBOUR,* District
Judge.
W. EUGENE DAVIS, Circuit Judge:
Glen Davis challenges his conviction for narcotics
trafficking. Davis contends that his Sixth Amendment right to
counsel was violated because the district court did not
sufficiently warn Davis of the perils of self-representation, and
therefore Davis did not make a knowing and intelligent waiver of
*
District Judge of the Southern District of Mississippi,
sitting by designation.
1
his right to counsel. For the reasons that follow, we agree that
Davis did not receive adequate warnings. We therefore vacate the
conviction and remand for a new trial.
I.
Davis was tried on a one-count indictment for possession with
intent to distribute five kilograms or more of cocaine in violation
of 21 U.S.C. 841(b)(1)(A). During the trial, Davis became
dissatisfied with his lawyer’s performance. After testimony by the
ninth government witness, Davis asked to speak with the district
court judge. Although Davis’s attorney, Gerald Fry, advised Davis
not to speak on the record, Davis insisted. Davis told the court
that he had spent considerable effort preparing a list of questions
for the witnesses, but Fry had refused to ask any of them. Davis
said, “If he’s not going to help me, let me help myself....It’s up
to me now. He said he’s not going to use [my questions].... If
he’s not going to help me ... then you don’t need me here. Y’all
can have this trial without me.” The court responded that “We
can’t have it without you. We can have it without your lawyer,
though.”
The court then announced that it would permit Davis to
supplement Fry’s examination of witnesses by asking his own
questions after Fry had finished. The court also excused Fry from
making or responding to objections on Davis’s behalf while Davis
2
examined witnesses.
The court advised Davis that “If you choose to disregard your
counsel’s advise, I will permit you to ask the very questions that
... your lawyer chooses not to ask.” The court later had an
additional exchange with Davis reflected in the margin.2
2
THE COURT: You have been advised by your counsel that he does
not believe that it’s in your best interest not only to ask
those questions but to participate in the trial. Hasn’t he
told you that?
DAVIS: Yes, sir.
***
THE COURT: All right. In spite of that advice, you’re
choosing to ask those questions yourself?
DAVIS: Yes, sir.
THE COURT: And to disregard his advice?
DAVIS: Yes, sir.
The court then inquired into Davis’s mental and drug history,
learning that Davis had been treated for drug addiction eight years
earlier. This series of questions followed:
THE COURT: You believe, I gather, that you are capable of
asking these questions without implicating yourself?
DAVIS: Yes, sir.
THE COURT: And if the answers implicate you, do you
understand ... that that puts you in an awkward position–
DAVIS: Yes, sir, I do.
THE COURT: – with the jury?
DAVIS: Yes, sir, I do.
THE COURT: And also with your attorney?
3
The court permitted Davis to recall and question three
government witnesses who Fry had already cross-examined. When
Davis finished and the government was ready to call its next
witness, the court altered the hybrid arrangement. Instead of
allowing Davis to question witnesses after Fry had finished, the
court directed that only one person examine further witnesses. The
court required Davis and Fry to agree between themselves who would
examine each witness.
Under this arrangement the trial proceeded to its conclusion.
Davis cross-examined nine government witnesses and questioned two
defense witnesses on his own. Fry only questioned one government
witness and two defense witnesses under the hybrid arrangement. Of
the nineteen witnesses examined by the defense at trial, Davis
questioned fourteen. Fry made objections to the Government’s
questioning of one witness; responded to offers of government
exhibits; assisted Davis in making a proffer of a witness’s
potential testimony; and moved for acquittal after the Government
rested, but not at the close of all the evidence. Both Davis and
Fry gave closing arguments.
DAVIS: Yes, sir, I do.
THE COURT: And you will not be able to simply to stand up
and throw a temper tantrum if somebody doesn’t ask some
question the way you want or [do not], or says something
that you believe is provocative from your perspective.
You understand that, don’t you?
DAVIS: Yes, sir.
4
The jury found Davis guilty and the court imposed a life
sentence. Following Davis’s conviction and sentence, he lodged
this appeal. Davis’s primary argument on appeal is that he was not
adequately warned by the district court of the perils and
disadvantages of self-representation. He argues that as a result
he did not knowingly waive his Sixth Amendment right to counsel.
II.
In Faretta v. California,2 the Supreme Court held that the
Sixth Amendment entitles a criminal defendant to forgo the
assistance of counsel and represent himself. The Court said that
the defendant must make this choice “knowingly and intelligently”:
“When an accused manages his own defense, he relinquishes, as a
purely factual matter, many of the traditional benefits associated
with the right to counsel. For this reason, in order to represent
himself, the accused must ‘knowingly and intelligently’ forgo those
relinquished benefits.”3 In order for a waiver to be knowing and
intelligent, the trial judge must warn the defendant against the
perils and disadvantages of self-representation.
Although a defendant need not himself have the skill and
experience of a lawyer in order competently and intelligently
to choose self-representation, 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
2
422 U.S. 806 (1975).
3
Id. at 835 (citation omitted).
5
choice is made with eyes open.”4
The question here is whether Davis made a sufficiently knowing and
intelligent choice to represent himself, and this turns on whether
the judge sufficiently warned Davis of the dangers of waiving his
right to counsel.5
In United States v. Martin,6 this court outlined in some
detail what a trial judge must do before granting a defendant’s
request for self-representation.
[T]he trial judge must caution the defendant about the dangers
of such a course of action so that the record will establish
that “he knows what he is doing and his choice is made with
eyes open.” In order to determine whether the right to
counsel has been effectively waived, the proper inquiry is to
evaluate the circumstances of each case as well as the
background of the defendant.7
4
Id. (citation omitted).
5
The district court was quick perhaps too quick to interpret
Davis’s expression of dissatisfaction with his lawyer as a request
to represent himself. As we said in Moreno v. Estelle:
[A] defendant’s request to be relieved of counsel in the form
of a general statement of dissatisfaction with his attorney’s
work does not amount to an invocation of the Faretta right to
represent oneself, especially when made on the morning of
trial.
Moreno, 717 F.2d 171, 176 (5th Cir. 1983). The better course for
the district court would have been to respond to Davis’s complaints
against his lawyer rather than suggesting that Davis could
represent himself. After the district court made this suggestion,
Davis adopted it. We therefore proceed from the premise that Davis
made a Faretta request to represent himself.
6
790 F.2d 1215 (5th Cir. 1986).
7
Id. at 1218 (internal citations omitted).
6
In particular, the district court must consider various factors,
including
the defendant's age and education, and other background,
experience, and conduct. The court must ensure that the
waiver is not the result of coercion or mistreatment of
the defendant, and must be satisfied that the accused
understands the nature of the charges, the consequences
of the proceedings, and the practical meaning of the
right he is waiving.8
This court has consistently required trial courts to provide
Faretta warnings.9 We re-affirm what our decisions make clear: we
require no sacrosanct litany for warning defendants against waiving
the right to counsel.10 Depending on the circumstances of the
individual case, the district court must exercise its discretion in
determining the precise nature of the warning.11
8
Id. (internal citations omitted).
9
See, e.g., Chapman v. U.S., 553 F.2d 886, 892 (5th Cir. 1977)
(“a trial judge should engage in a dialogue with such a defendant,
explaining to him the consequences of defending pro se.”).
10
See, e.g., Neal v. Texas, 870 F.2d 312, 315 n. 3 (5th Cir.
1989); Martin, 790 F.2d at 1218; Wiggins v. Procunier, 753 F.2d
1318, 1320 (5th Cir. 1985); Taylor v. Hopper, 596 F.2d 1284 (5th
Cir. 1979); Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir. 1980).
11
The Benchbook for U.S. District Court Judges, published by
the Federal Judicial Center, provides a guide for questions the
judge can ask to convey the disadvantages the defendant will likely
suffer if he proceeds per se:
(1) Have you ever studied law?
(2) Have you ever represented yourself in a criminal
action?
(3) Do you understand that you are charged with these
7
crimes: [state the crimes with which the defendant is
charged]?
(4) Do you understand that if you are found guilty of the
crime charged in Count I the court must impose an
assessment of $50 and could sentence you to as many as __
years in prison and fine you as much as $__ ? [Ask
defendant a similar question for each crime with which he
or she may be charged in the indictment or information.]
(5) Do you understand that if you are found guilty of
more than one of those crimes this court can order that
the sentences be served consecutively, that is, one after
another?
(6) Do you understand that the U.S. Sentencing Commission
has issued sentencing guidelines that will affect your
sentence if you are found guilty?
(7) Do you understand that if you represent yourself, you
are on your own? I cannot tell you or even advise you how
you should try your case.
(8) Are you familiar with the Federal Rules of Evidence?
(9) Do you understand that the Federal Rules of Evidence
govern what evidence may or may not be introduced at
trial and that, in representing yourself, you must abide
by those rules?
(10) Are you familiar with the Federal Rules of Criminal
Procedure?
(11) Do you understand that those rules govern the way
a criminal action is tried in federal court?
[Then say to defendant something to this effect:]
(12) I must advise you that in my opinion a trained
lawyer would defend you far better than you could defend
yourself. I think it is unwise of you to try to
represent yourself. You are not familiar with the law.
You are not familiar with court procedure. You are not
familiar with the rules of evidence. I strongly urge you
not to try to represent yourself.
(13) Now, in light of the penalty that you might suffer
if you are found guilty, and in light of all of the
8
The Government argues that this case is not controlled by
Faretta because this case involves “hybrid representation” of a
sort that the Supreme Court has strongly implied is permissible –
but has said is not required – under Faretta.12 LaFave, however,
suggests in his work on criminal procedure that “Under a hybrid
form of representation, defendant and counsel act, in effect, as
co-counsel, with each speaking for the defense during different
phases of the trial.... Of course, since hybrid representation is
in part pro se representation, allowing it without a proper Faretta
inquiry can create constitutional difficulties.”13
“Hybrid” or no, the representation sought by Davis entailed a
waiver of his Sixth Amendment right to counsel that required the
difficulties of representing yourself, do you still
desire to represent yourself and to give up your right to
be represented by a lawyer?
(14) Is your decision entirely voluntary?
[If the answers to the two preceding questions are yes,
say something to the following effect:]
(15) I find that the defendant has knowingly and
voluntarily waived his right to counsel. I therefore
permit the defendant to represent himself [herself].
Benchbook 1.02 (4th ed. 2000).
12
See McKaskle v. Wiggins, 465 U.S. 168, 168 (1984); Myers v.
Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996) (“there is no
constitutional right to hybrid representation”); Neal v. Texas, 870
F.2d 312, 315-16 (5th Cir. 1989) (same).
13
3 Wayne R. LaFave et al., Criminal Procedure § 11.5(g) (1999
& 2001 supp.).
9
safeguards specified in Faretta. The Faretta Court stated that
“[o]f 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.”14 Standby assistance of counsel,
however, does not satisfy the Sixth Amendment right to counsel.
“The assistance of standby counsel, no matter how useful to the
court or the defendant, cannot qualify as the assistance of
counsel, required by the Sixth Amendment.”15
III.
The district court was not obliged to honor Davis’s mid-trial
request to represent himself.16 Once it determined to do so,
however, it was required to warn Davis of the perils and
disadvantages of self-representation. The district court failed to
discharge this responsibility. The court’s reliance on the
warnings against self-representation given by Davis’s counsel, Fry,
whom Davis no longer trusted, was not sufficient.17
14
Id. at 834 n.46.
15
U.S. v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991).
16
See Moreno, 717 F.2d at 176.
17
Davis presents one other argument for appeal. He argues
that the district court’s refusal to subpoena his son was an abuse
of discretion. Davis asked the court to fly his son from Ohio to
10
Because the trial court’s warning against self-representation
did not satisfy Faretta, Davis’s Sixth Amendment right to counsel
was violated. We therefore must vacate Davis’s conviction and
remand for a new trial.
VACATED and REMANDED.
Houston so that he could testify that one of several documents was
in his hand-writing. Davis’s mother was in Houston, however, and
she could have identified Davis’s son’s hand-writing. The district
court did not abuse its discretion in denying this request.
11