Opinion
Cause No. IP99-1067-C-H/G
March 7, 2000
Robert A. Gaddie, pro se.
Barbara Gasper Hines, Office of the Indiana Attorney General, Indianapolis, Indiana, for defendant.
ENTRY ON PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Robert Gaddie is in an Indiana prison after conviction at trial for possessing cocaine. Gaddie has petitioned for a writ of habeas corpus, primarily on the ground that the state courts violated his right under the Sixth Amendment to the United States Constitution to represent himself in his trial. See Faretta v. California, 422 U.S. 806 (1975).
As explained below, Gaddie's petition is granted. Gaddie asserted his right to selfrepresentation in a proper and timely manner, sufficient at least for the trial court to consider it on the merits. Applying the standard set forth in 28 U.S.C. § 2254 (d), the state courts did not reasonably apply Faretta. The trial court denied in summary fashion his assertion of that right, finding that Gaddie could not represent himself adequately. That ruling was clearly contrary to the standard under Faretta. The Indiana Court of Appeals affirmed on grounds that the trial court did not articulate and that are not reasonably supported by the record. Accordingly, the court orders Gaddie's custodian to release him from continued custody based on the challenged conviction within 90 days if he is not retried.
Factual Background
Gaddie is confined in an Indiana prison serving the executed portion of a 20-year sentence imposed by the Marion Superior Court, Criminal Division, on November 21, 1997. He was convicted of possession of cocaine charged as a Class C felony. Gaddie had been arrested after a fight with his girlfriend. When he was searched incident to the arrest, police officers found cocaine weighing a total of 3.5 grams. Gaddie's sentence was enhanced because he qualified as a habitual offender. Gaddie has a lengthy criminal record as a juvenile. His record as an adult includes felony convictions for voluntary manslaughter, several auto thefts, and attempted robbery. See R. 103-07.
Gaddie was assigned a public defender to represent him on the cocaine charge at issue here. He twice requested that a new public defender be assigned to represent him. Both requests were granted, so that shortly before trial, he was being represented by the third lawyer assigned to his case. About two weeks before his scheduled trial, Gaddie sought to have his third lawyer removed from his case, and he asserted his right to represent himself at his trial. The facts specific to that claim are set forth in detail below.
Legal Standards and Analysis
Gaddie is entitled to relief in this action only if he is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. § 2254(a). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to this case because Gaddie filed his federal habeas petition after the effective date of AEDPA, April 24, 1996. Smith v. Robbins, 120 S.Ct. 746, 754 n. 2 (2000). Under the AEDPA, the writ Gaddie seeks
"may not be granted unless the state court's adjudication of the petitioner's claim resulted in a decision that `was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,' 28 U.S.C. § 2254(d)(1), or `was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,' id. § 2254(d)(2)." Thus, a federal court is to "look exclusively to Supreme Court case law in reviewing a petitioner's claim," and the "criterion for assessing the reasonableness of a state court's application of Supreme Court case law, pursuant to § 2254(d)(1), is `whether the determination is at least minimally consistent with the facts and circumstances of the case.'"
Sweeney v. Parke, 113 F.3d 716, 718 (7th Cir. 1997), quoting Henson v. Cooper, 109 F.3d 330, 334 (7th Cir. 1997). The Seventh Circuit has explained further:
When determining whether the state court unreasonably applied clearly established Supreme Court precedent, we recognize that "the statute commands deference to the state court's judgment by using the word `unreasonable,' which is stronger than `erroneous' and maybe stronger than `clearly erroneous.'" Hennon v. Cooper, 109 F.3d 330, 334 (7th Cir.) (citation omitted), cert. denied, 522 U.S. 819 (1997). If the determination was reasonable, that is, "at least minimally consistent with the facts and circumstances of the case," we shall uphold the state court ruling, even if it is not well reasoned or fully reasoned, id. at 335, or even "if it is one of several equally plausible outcomes," Hall, 106 F.3d at 748. On the other hand, if the determination is "at such tension with governing U.S. Supreme Court precedents, or so inadequately supported by the record, or so arbitrary," then the writ must issue. Hall, 106 F.3d at 749.
Schaff v. Snyder, 190 F.3d 513, 523 (7th Cir. 1999).
The Supreme Court of the United States recently described the right Gaddie seeks to vindicate through this action:
The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. In Faretta v. California, 422 U.S. 806 (1975), we decided that the defendant also "has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so." Id. at 807.
Martinez v. Court of Appeal of California, 120 S.Ct. 684, 687 (2000) (footnote omitted).
Gaddie presented his Sixth Amendment claim to the Indiana Court of Appeals in his direct appeal. In an unpublished order, the Indiana Court of Appeals rejected the claim, concluding that Gaddie had not made a timely and unequivocal request to represent himself. Gaddie v. State, No. 49AO2-9803-CR-201 (Ind.App. Nov. 30, 1998). The Court of Appeals addressed and decided this claim in two paragraphs:
Gaddie first argues that the trial court improperly denied him his constitutional right to self representation. The Sixth Amendment to the United States Constitution does guarantee the right of an accused to act as his own legal counsel when he voluntarily and intelligently chooses to do so. Leonard v. State, 579 N.E.2d 1294, 1295 (Ind. 1991) (citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)). In determining a defendant's competency to represent himself, the court may look at a criminally accused's education, familiarity with the legal process, and mental capacity. Coleman v. State, 630 N.E.2d 1376, 1377 (Ind.Ct.App. 1994), trans. denied. The right of self-representation must also be asserted unequivocally and in a timely manner. Olson v. State, 563 N.E.2d 565, 570 (Ind. 1990).
Gaddie initially requested relief from trial counsel's assistance on October 21, 1997, at a pre-trial hearing. He complained of trial counsel's failure to file motions which the trial court stated it would have found frivolous and that trial counsel had not properly kept him apprised of matters affecting his case. After hearing Gaddie's criticisms of trial counsel, the following colloquy took place:
Gaddie: So you are going to force his representation on me?
The Court: I am letting you make your record, I am just telling you these are not reasons why I am going to take him off the case, but there may be some future court that said I made a mistake and so I will allow you to say your piece.
* * *
The Court: Okay. I'll show that your motion to have [attorney] withdrawn is denied[;] we will work towards the trial date on November the 5th.
Mr. Gaddie: I can't represent myself?
The Court: No, I don't think you have the education or the ability, you have shown me in this hearing that you don't have the education or the experience that I am going to risk having you represent yourself on a case —
S.R. at 8-11. The trial court's concerns regarding the frivolous motions which Gaddie wanted filed and his lack of experience with the workings of the legal process were proper considerations in determining that Gaddie could not adequately represent himself. Gaddie also did not clearly and unequivocally state that he wished to represent himself. Gaddie raised the issue of self representation again on November 4, 1997, one day prior to trial. This request was also properly denied for being untimely.
Gaddie v. State, slip op. at 3-4. The State of Indiana, through Gaddie's custodian, defends this decision as a "reasonable adjudication."
Gaddie also presented his Sixth Amendment claim to the Supreme Court of Indiana in a petition to transfer, which was denied, so he has fully presented his claim to the state courts. See O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1734 (1999) (finding procedural default on claims the petitioner did not present in petition to state's highest court for discretionary review).
The Indiana Court of Appeals properly cited Faretta and stated its conclusions in terms superficially consistent with the applicable test under Faretta. As explained below, however, the state appellate court's conclusions that Gaddie had not asserted his right to self-representation unequivocally and in a timely manner are not based on a reasonable reading of the record. In addition, the trial court's denial of Gaddie's request to represent himself simply cannot be reconciled with Faretta; the court was entitled to try to persuade Gaddie that he could not represent himself effectively, but it could not deny him the right to represent himself on the ground that he did not have the ability to represent himself "adequately." See Faretta, 422 U.S. at 835-36 (defendant's lack of technical legal knowledge is not relevant to right of self-representation). In addition, the Indiana Court of Appeals' reliance on Coleman v. State, 630 N.E.2d 1376 (Ind.App. 1994), to support the trial court's evaluation of Gaddie's ability to represent himself reflects a clearly unreasonable misreading of both that case and Faretta itself.
With respect to the clarity of Gaddie's request, the record shows that Gaddie made a sufficiently clear assertion of his right to represent himself. Certainly the trial court understood what he sought. The state appellate court quoted part of the relevant portion of the record from the pretrial conference on October 21, 1997:
The Court: Okay. I'll show that your motion to have [attorney] withdrawn is denied[;] we will work towards the trial date on November the 5th.
Mr. Gaddie: I can't represent myself?
The Court: No, I don't think you have the education or the ability, you have shown me in this hearing that you don't have the education or the experience that I am going to risk having you represent yourself on a case —
The colloquy continued:
Mr. Gaddie: So you are going to force me to accept representation from someone that I am not willing to accept?
The Court: No, all you have to do is hire somebody, you can have anybody you want as long as you hire them, you understand that?
Mr. Gaddie: But I got —
The Court: You've got him.
Mr. Gaddie: I disagree.
The Court: Okay, that is your right and it is on the record too, and we will type it up and if your appeal needs it, it will be right there.
Mr. Gaddie: You are going to force me to accept him?
[Defense counsel]: Pre trial on the 4th?
The Court: Yes.
Mr. Gaddie: Your pre trial will be on the 4th, not mine partner.
The Court: Okay Mr. Gaddie we will see you then sir.
Gaddie was next in court on November 4, 1997, the day before his jury trial. The following exchange occurred:
Mr. Gaddie: My position is the same as it was on 10-21-97, as far as requesting that Mr. Ladd be removed from my case and allow me an opportunity to represent myself to where I can participate in my own defense. I want to iterate [sic] this for the record for me.
The Court: I again will deny both of those request[s], you can assist in your own defense by telling Mr. Ladd what it is — If you think at the end of a witness that he hasn't asked something that needs to be asked he always ask [sic] what else needs to be asked, you just let him know, he will decide whether or not that's something that he is going to do or not and.
This record shows plainly that the trial court understood Gaddie had made two requests — first to dismiss attorney Ladd, and second, under the Sixth Amendment, to be allowed to represent himself. Even if there had been any ambiguity in the record of the pretrial conference on October 21st, the trial court dispelled it in the November 4th conference by saying "I again will deny both of those requests." The trial judge summarily denied on the merits Gaddie's assertion of his Sixth Amendment right to self-representation, explaining that he did not feel Gaddie had the education or experience to proceed without counsel. The trial judge did not question Gaddie's resolve or the meaning of his demand for self-representation. Cf. United States v. Arlt, 41 F.3d 516, 523 (9th Cir. 1994) ("once a defendant has stated his request clearly and unequivocally and the judge has denied it in an equally clear and unequivocal fashion, the defendant is under no obligation to renew the motion"). On this record, therefore, the state appellate court's finding that Gaddie "did not clearly and unequivocally state that he wished to represent himself" cannot stand as a reasonable reading of the record.
The state appellate court also found that Gaddie's assertion of his right on November 4, 1997, "was also properly denied for being untimely." If Gaddie had first asserted his right to selfrepresentation on the day before trial, and if the trial court had actually rejected his assertion as untimely, that result would have been completely consistent with Faretta. That is not what happened. The trial court plainly understood that Gaddie was raising again the same demand he had made two weeks earlier. The trial court denied the renewed assertion on the merits, not because it was untimely. The trial court never said anything about the timing of Gaddie's assertion of his right. Thus, treating Gaddie's renewed effort to raise the issue as untimely misunderstands or ignores the context in which it was made. The state appellate court's finding that Gaddie failed to make a timely assertion of his right to represent himself also is not a reasonable reading of the record.
The Indiana Court of Appeals offered a third basis for affirming the trial court's denial of Gaddie's demand to represent himself, explaining that the trial court's "concerns regarding the frivolous motion which Gaddie wanted filed and his lack of experience with the workings of the legal process were proper considerations in determining that Gaddie could not adequately represent himself." Gaddie v. State, slip op. at 4. The trial judge's own statements plainly indicate that he also thought the pivotal question was whether Gaddie "could . . . adequately represent himself."
The Seventh Circuit has said that under the AEDPA, a petitioner whose claim "depends on anything other than a straightforward application of established rules cannot obtain a writ of habeas corpus." Liegakos v. Cooke, 106 F.3d 1381, 1388 (7th Cir. 1997). Gaddie meets this high standard. The state courts' inquiry into whether Gaddie could represent himself adequately misses the whole point of Faretta and the core of the Sixth Amendment right to self-representation. As long as the defendant is competent to stand trial, the defendant has a right under Faretta to insist that he be allowed to represent himself. Godinez v. Moran, 509 U.S. 389, 400 (1993) (standard for competency to waive right to counsel is same as competency to stand trial; defendant's lack of technical legal knowledge is irrelevant to right to self-representation); accord, Faretta, 422 U.S. at 835-36.
When the accused in a criminal case informs the trial court he wishes to represent himself, the trial court must navigate a narrow passageway. The accused's choice to represent himself is his choice to make. This is true even if, as is highly likely, he cannot provide a defense that would be "adequate" for Sixth Amendment purposes if provided by a lawyer. See Faretta, 422 U.S. at 834 ("It is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts;" although the defendant "may conduct his own defense ultimately to his own detriment, his choice must be honored out of `that respect for the individual which is the lifeblood of the law.'"). At the same time, however, unless the trial court makes a record that the waiver of right to counsel was also knowing and intelligent, the waiver may be held invalid. The trial court must therefore make the accused aware of the dangers and disadvantages of self-representation. See Godinez, 509 U.S. at 401 n. 12; Faretta, 422 U.S. at 835.
In other words, a defendant who raises the issue of self-representation gives the trial court the opportunity to make a fundamental error in either of two directions — (1) by erroneously denying the right to self-representation, or (2) by failing to ensure that the defendant's decision to represent himself and to waive the right to counsel is a sufficiently knowing and intelligent decision. When the accused is an experienced defendant who shows signs of knowing how to "game" the system (recall that petitioner Gaddie was being represented by his third public defender in this case), the court may be understandably suspicious and impatient. Under Faretta and Godinez, however, the way to handle such tactics is by confronting the defendant with the choice and insisting on a clear and informed choice on the record, not by ignoring the problem or by summarily denying the request for self-representation.
Nothing in Faretta or its progeny permits the trial court to cut off the defendant's right to self-representation by summarily telling the defendant, as occurred here, that he does not have sufficient education, experience, or knowledge to represent himself, adequately or otherwise. The trial court is entitled (and certainly well-advised) to try to persuade the accused not to represent himself by explaining the dangers and disadvantages of that choice. Ultimately, however, the choice remains the defendant's choice, and the trial court may not prevent him from exercising that choice.
The Supreme Court recently explained that the right of self-representation under Faretta is not absolute. Martinez, 120 S.Ct. at 691. In particular, the trial court may insist that the defendant raise the issue in a timely manner. Id. In addition, Faretta itself recognized that a court could properly terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. 422 U.S. at 834 n. 46. There is no serious issue here about the timeliness of Gaddie's request, nor is there any evidence of deliberate, serious, and obstructionist misconduct.
The Indiana appellate court cited no meaningful support for its conclusion on the merits of Gaddie's Sixth Amendment claim. The critical passage in the court's opinion was its assertion: "In determining a defendant's competency to represent himself, the court may look at a criminally accused's education, familiarity with the legal process, and mental capacity." Gaddie v. State, slip op. at 3, citing Coleman v. State, 630 N.E.2d 1376, 1377 (Ind.App. 1994). The reliance on Coleman is clearly misplaced in this context. In Coleman, the defendant had exercised his Sixth Amendment right and had represented himself at his trial. On appeal, he argued that his waiver of the right to counsel was involuntary because the trial court had not warned him adequately about the dangers of doing so. The appellate court upheld the defendant's choice to represent himself, finding that the trial court had adequately advised him of the risks of his choice. The appellate court explained that the trial court must conduct a hearing to establish the defendant's competency to represent himself and to establish a record of the waiver. In that hearing, the appellate court said, the trial court "may inquire into the defendant's educational background, familiarity with legal procedures and general mental capabilities." Id. The court made this statement, however, in the course of determining whether the defendant had been sufficiently apprised of the advantages of representation by counsel and the risks of self-representation, so that his waiver of the right to counsel was knowing and voluntary. Coleman does not support the opinion in Gaddie to the effect that the trial court may deny self-representation if the trial judge feels the defendant may not represent himself "adequately." State court decisions cannot create such new, additional criteria for determining whether a federal constitutional right has been validly waived (or asserted).
An accused's right to defend himself at trial is "fundamental" in nature. Faretta, 422 U.S. at 817. Where a defendant has properly asserted his right to represent himself and to waive his Sixth Amendment right to counsel, a court must permit the defendant to proceed without a lawyer. Gaddie asserted his right, and the trial court failed to honor that right. This ends the analysis. A court's erroneous denial of the right to self-representation is not subject to harmless error analysis. It requires automatic reversal of a criminal conviction. McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8 (1984); Flanagan v. United States, 465 U.S. 259, 267-68 (1984); Johnstone v. Kelly, 808 F.2d 214, 218 (2d Cir. 1986).
Accordingly, Gaddie's petition for a writ of habeas corpus is granted as to his claim that he was improperly denied the right to self-representation. It is unnecessary to address his remaining claims. The State of Indiana shall release Gaddie from any and all further confinement as a result of proceedings in the Marion Superior Court, Criminal Division, styled State of Indiana v. Robert Gaddie, No. 49G20-9702-CF-028190 within 90 days of this entry unless within that time Gaddie is afforded a new trial. If a new trial is conducted and Gaddie asserts his right to represent himself, such assertion must be handled consistently with Faretta v. California. Judgment consistent with this Entry shall now issue. Gaddie's motion for appointment of counsel in this proceeding is denied as moot.
So ordered.