United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2758
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United States of America, *
*
Plaintiff - Appellee, * Appeal from the United States
* District Court of the
v. * Western District of Missouri.
*
Clifton D. Taylor, *
*
Defendant - Appellant. *
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Submitted: April 11, 2011
Filed: August 30, 2011
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Before LOKEN, BALDOCK,* and MURPHY, Circuit Judges.
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LOKEN, Circuit Judge.
Clifton D. Taylor entered the FDIC-insured Central Bank of Kansas City, slid
a threatening note to a bank-teller, and exited the bank with $2,700 in hundred-dollar
bills. Bank employees followed Taylor as he fled on foot, abandoned the green cap
and jacket he was wearing, and entered a store. They called the police, who arrested
Taylor as he left the store. At Taylor’s bank robbery trial, the government presented
video evidence of Taylor in the store and DNA evidence linking Taylor to the green
hat found in a parked truck along with a leather jacket and $2700 cash. Based on this
*
The Honorable Bobby R. Baldock, United States Circuit Judge for the Tenth
Circuit, sitting by designation.
and other overwhelming evidence, a jury convicted Taylor of bank robbery in
violation of 18 U.S.C. § 2113(a). Taylor appeals the conviction, arguing that he is
entitled to a new trial because the district court1 abused its discretion when it denied
his repeated pretrial requests for new appointed counsel, which rendered involuntary
his ultimate decision to waive his Sixth Amendment right to counsel and defend
himself at trial. We affirm.
I.
Taylor was indicted and arraigned in April 2009. Assistant Federal Public
Defender Travis Poindexter was appointed to represent Taylor and moved to continue
trial from the June docket. Taylor soon filed many extensive pro se motions, followed
in June by a Motion for Ineffective Assistance seeking the appointment of substitute
counsel. Magistrate Judge Larsen held a hearing and asked Taylor why he was
dissatisfied with attorney Poindexter. Taylor complained that Poindexter had refused
to file Taylor’s pro se motions “alleging Government misconduct” and requesting a
hearing “to challenge the reliability of witness statements.” After a lengthy colloquy
discussing these issues, Magistrate Judge Larsen concluded that a different lawyer
would not have filed those motions.2 “So I’m not going to replace him because I don’t
think he’s done anything or failed to do anything that reflects on the adequacy of the
1
The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri. Pretrial motion rulings, including those at issue on appeal, were
made initially by the Honorable Robert E. Larsen, United States Magistrate Judge for
the Western District of Missouri.
2
Appellate counsel argues that Magistrate Judge Larsen “missed” Taylor’s
legitimate concern with Poindexter’s failure to move to suppress an incriminating
statement Taylor made to FBI agents. After careful review of the hearing transcript
and Taylor’s pro se motions, we conclude Taylor expressed a desire to suppress only
inadmissible “hearsay evidence,” not his admission. The record on appeal contains
not the slightest hint that a motion to suppress the admission had merit.
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representation.” Magistrate Judge Larsen explained that Taylor’s options were to
continue to be represented by Poindexter, to retain substitute counsel, or to represent
himself with Poindexter likely serving as standby counsel. Taylor’s response: “I want
a change of venue.”
Taylor next filed a “criminal complaint” against Poindexter alleging due
process violations and entrapment. He also filed numerous additional pro se motions,
including one that Magistrate Judge Larsen interpreted as a motion to recuse. All
were denied because Taylor was represented by counsel, but Magistrate Judge Larsen
also explained why each motion was baseless. In denying the motion to recuse,
Magistrate Judge Larsen explained:
Defendant’s second reason . . . is essentially that I will not give him his
own way. Defendant asked for a new attorney. I held a hearing on that
motion and determined that Mr. Poindexter had done a satisfactory job
of representing defendant and that no other attorney would have handled
defendant’s issues differently. Refusing to terminate an attorney and
hire a new one to start all over, without any plausible grounds at all, does
not provide justification for my recusal. . . . There is no competent
attorney who would do the things defendant is requesting as they have
no basis in law.
After this ruling, Taylor continued to file numerous pro se motions, including
an August motion giving notice that his appointed counsel was making him insane.
Attorney Poindexter filed a motion for mental examination, which was granted. In
October, Taylor was found competent. He filed more pro se motions and again
alleged ineffective assistance of counsel, prompting Magistrate Judge Larsen to hold
another hearing on the repeated requests for appointment of new counsel. At the start
of this hearing, Magistrate Judge Larsen asked Taylor, “tell me what it is that you’re
complaining about here with regard to Mr. Poindexter.” Taylor replied:
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“I don’t like him. He’s not working in my best interest. He’s not
arguing with the evidence. He hasn’t filed one motion since I’ve been
incarcerated. He doesn’t come to see me, he doesn’t talk about my case.
And he’s like a dead-beat dad. And I don’t need him on my case. And
it’s going to be a problem because I don’t want him on my case.
Taylor then lost control and was removed from the courtroom. Poindexter advised the
court that Taylor had refused Poindexter’s recent attempts at contact. Returned to the
courtroom, Taylor reiterated the meritless evidentiary motions he wanted Poindexter
to file and asserted, “there’s just no way he’s going to be working in my best interest
because I requested that he be removed from the bar.” Magistrate Judge Larsen
explained to Taylor the flaws in each of his motions. After a further exchange,
Magistrate Judge Larsen informed Taylor he was not going to replace Poindexter,
upon which Taylor stood up violently, overturning the counsel table, an action raising
serious security issues that were carefully resolved at trial.
Taylor continued to file ineffective assistance motions asserting the same
issues, which were denied without a hearing. Three weeks before the January 2010
trial, Taylor filed a motion to proceed pro se. Magistrate Judge Larsen held a hearing
at which he advised Taylor regarding aspects of pretrial preparation and trial for which
Taylor would become responsible, and extensively warned Taylor of the dangers of
proceeding pro se. When Taylor persisted, Magistrate Judge Larsen found a knowing,
intelligent, and voluntary waiver of Taylor’s Sixth Amendment right to counsel,
relieved Poindexter as appointed counsel, and appointed Poindexter as standby
counsel “to be available in the courtroom if we run into a problem.” When Taylor
protested, “I want [Poindexter] out of my life,” Magistrate Judge Larsen directed that
Poindexter “be available by phone,” not in the courtroom, “if that’s acceptable with
Judge Smith, who makes the final decisions on these issues.”
At the start of trial, Judge Smith again cautioned Taylor about the disadvantages
of representing himself and offered to have standby counsel Poindexter reappointed
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as trial counsel. Taylor reaffirmed his waiver of counsel and refused to have any
assistance from Poindexter at trial.
II.
A motion for appointment of substitute counsel is committed to the district
court’s sound discretion. United States v. Webster, 84 F.3d 1056, 1062 (8th Cir.
1996). Taylor argues the district court abused its discretion in denying his repeated
motions for appointment of new counsel. To prevail on this claim, Taylor must show
“justifiable dissatisfaction” with attorney Poindexter, which “can arise from
irreconcilable conflict, a complete breakdown in communication, or any other factor
interfering significantly with an attorney’s ability to provide zealous representation.”
United States v. Boone, 437 F.3d 829, 839 (8th Cir. 2006). Given the importance of
the attorney-client relationship, “[t]he court must conduct an adequate inquiry into the
nature and extent of an alleged breakdown in attorney-client communications.”
United States v. Barrow, 287 F.3d 733, 738 (8th Cir.), cert. denied, 537 U.S. 1024
(2002).
It is clear from this record that the district court made a careful and thorough
inquiry into Taylor’s repeated claims of justifiable dissatisfaction with appointed
counsel Poindexter before denying Taylor’s requests for substitute counsel. “The
defendant’s right to counsel . . . does not involve the right to a ‘meaningful
relationship’ between an accused and his counsel.” United States v. Swinney, 970
F.2d 494, 499 (8th Cir. 1992), citing Morris v. Slappy, 461 U.S. 1, 13-14 (1983).
Thus, frustration with appointed counsel’s performance or disagreement with
counsel’s tactical decisions is not justifiable dissatisfaction. “The proper focus in
evaluating claims of dissatisfaction with counsel is on the quality of advocacy.”
United States v. Exson, 328 F.3d 456, 460 (8th Cir.) (citation omitted), cert. denied,
540 U.S. 1011 (2003). After careful review of the record, we agree with Magistrate
Judge Larsen that Taylor failed to show that attorney Poindexter was unprepared, was
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unable or unwilling to continue representing Taylor, or had failed to take actions on
Taylor’s behalf that would cause “justifiable dissatisfaction” with the quality of
Poindexter’s advocacy.
By the time Magistrate Judge Larsen granted Taylor’s request to represent
himself at trial, it was obvious there was “a complete breakdown in communication”
between attorney and client. For months, Taylor had refused all contact with a
competent appointed attorney. He filed a “criminal complaint” against counsel,
demanded a “change of venue,” and employed every other tactic he could think of to
coerce the court into appointing a new counsel with whom, the court reasonably
concluded, Taylor was unlikely to have any better relations. Is this a variety of
“justifiable dissatisfaction” requiring us to conclude the district court abused its
discretion? This court, and others, have sensibly declined to do so. Taylor “was not
entitled to new counsel if his refusal to cooperate with [Poindexter] was simply a
‘stonewalling effort to select counsel of his own choice.’” Hunter v. Delo, 62 F.3d
271, 275 (8th Cir. 1995), quoting United States v. Horon, 845 F.2d 1414, 1418 (7th
Cir. 1988); accord United States v. Simpson, 645 F.3d 300, ___ (5th Cir. 2011).
Properly viewed, this was not a breakdown of communication requiring appointment
of new counsel, only an unwillingness on Taylor’s part to communicate with
appointed counsel. See United States v. Anderson, 570 F.3d 1025, 1032 (8th Cir.
2009), and cases cited. The district court did not abuse its discretion by declining to
grant Taylor’s requests for new counsel. See Exson, 328 F.3d at 460-61.
Taylor further argues that his waiver of counsel was involuntary because the
district court refused to grant him substitute counsel. A defendant’s right to counsel
includes the right to conduct his own defense. Faretta v. California, 422 U.S. 806, 835
(1975). But the court must “assure itself that the waiver of the right to appointed
counsel is knowing and voluntary.” United States v. Mentzos, 462 F.3d 830, 838 (8th
Cir. 2006), cert. denied, 549 U.S. 1359 (2007). A waiver is involuntary if the
defendant is offered the “Hobson’s choice” of proceeding to trial with unprepared
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counsel or no counsel at all. See Gilbert v. Lockhart, 930 F.2d 1356, 1360 (8th Cir.
1991). “However, if defendant’s counsel is competent and defendant cannot establish
good cause entitling him to appointment of new counsel, his waiver will be deemed
voluntary.” United States v. Taylor, 183 F.3d 1199, 1203 (10th Cir.), cert. denied,
528 U.S. 904 (1999). “[A] persistent, unreasonable demand for dismissal of counsel
and appointment of new counsel . . . is the functional equivalent of a knowing and
voluntary waiver of counsel. In such an instance, the trial court may proceed to trial
with the defendant representing himself.” United States v. Moore, 706 F.2d 538, 540
(5th Cir.), cert. denied, 464 U.S. 859 (1983); accord Meyer v. Sargent, 854 F.2d 1110,
1114 (8th Cir. 1988). The district court properly cautioned Taylor as to the dangers
of self-representation. In these circumstances, his waiver of counsel was valid.3
The judgment of the district court is affirmed. We deny Taylor’s pro se motion
claiming ineffective assistance of appellate counsel.
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3
Taylor also rejected Poindexter’s services as standby counsel at trial and
unwisely called Poindexter as a witness, attempting to show that Poindexter had
conspired with the prosecution in gathering incriminating DNA evidence. But this
was Taylor’s choice. “There is no constitutional right to hybrid representation.”
United States v. Einfeldt, 138 F.3d 373, 378 (8th Cir.), cert. denied, 517 U.S. 1174
(1996); see generally McKaskle v. Wiggins, 465 U.S. 168 (1984).
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