concurring:
I concur fully in the views expressed by Mr. Justice Batjer; however, I wish to add one observation.
Unless the U.S. Supreme Court limits prior declarations, I think we must assume that the right of an accused to act as his own defense counsel carries the right to make usual choices concerning tactics and strategy. Many trials present hard choices concerning what evidence should be adduced on various issues. Whether particular evidence will “mitigate” or aggravate the criminality of a generally known set of circumstances is, often, a question on which reasonable minds differ. Thus, 1 think the majority is correct in concluding that appellant’s decision cannot be viewed as “waiving” evidence of “mitigation.” Such a characterization — which assumes that counsel, rather than the appellant, necessarily knew best — is contrary to the concept of Faretta as thus far articulated.
If the district court had permitted standby counsel to introduce evidence over the appellant’s objection, and then had sentenced appellant to death, we would now face the contention that the court had prejudicially interfered with the accused’s right to represent himself.