UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN R. TAYLOR, Defendant-Appellant.
No. 96-6173
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
MAY 12 1997
PUBLISH
Vicki Mandell-King, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender with her on the briefs), Denver, Colorado, for Plaintiff-Appellee.
Frank Michael Ringer, Assistant United States Attorney (Patrick M. Ryan, United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Defendant-Appellant.
Before BRORBY, HOLLOWAY and EBEL, Circuit Judges.
BRORBY, Circuit Judge.
An Oklahoma federal jury convicted John R. Taylor of possession with
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 26, 1995, Mr. Taylor was arrested for possession with intent to distribute cocaine base. Mr. Taylor appeared before a United States magistrate judge who appointed counsel, Joseph Wells, to reрresent Mr. Taylor. The magistrate judge also advised Mr. Taylor of his rights and the charges against him.
In November 1995, a grand jury returned an indictment against Mr. Taylor and three other named defendants. The indictment charged Mr. Taylor with the following four offenses: (1) conspiracy to possess with intent to distribute and to
On December 14, 1995, Mr. Wells moved to withdraw as counsel of record for Mr. Taylor. Mr. Wells informed the court Mr. Taylor intended to represent himself pro se. On that same date, Mr. Taylor filed an appearance form indicating himself as counsel.
Thereafter, on December 18, 1995, the court entered the following order:
The motion to withdraw of court appointed counsel, Joseph L. Wells, is denied. Counsel is requested to serve in a stand-by advisory capacity only, in the event the defendant elects to represent himself, pro se. The defendant is directed to declare his intentions in this regard by written statement filed with the clerk of court within ten (10) days to that effect, acknowledging his assumption of all matters related to his defense and preparation for trial.
If defendant elects to continue to avail himself of the services of his court appointed counsel he shall so state by writtеn statement within ten (10) days hereof.
Notwithstanding the court‘s explicit directive, Mr. Taylor never responded to the December 18 order. However, Mr. Taylor did draft, sign and file a “Motion to Demurrer” and a “Writ of Mandamus” with the court prior to trial. On January
Mr. Taylor‘s trial began on March 11, 1996. Prior to jury selection, the district judge encouraged Mr. Taylor to use the services of Mr. Wells. The court stated:
Mr. Taylor, as someone appearing on his own behalf, it‘s your right to do that, and we‘ll try the case just as well as we can under these circumstances.
I do want to encourage you, however, to utilize Mr. Wells and get his guidanсe on matters that might not be familiar to you. It‘s very technical, it‘s not a simple matter, federal criminal procedure, and I want to make sure that this trial is fair to you and fair to your co-defendant as well as to the government. So he‘s there as a resource to you, and I do encourage you to use him as much as you can in order to facilitate the trial.
Although Mr. Taylor made no opening statement at trial, he cross-examined some of the government‘s witnesses. Mr. Taylor allowed Mr. Wells to cross-examine one government witness, and Mr. Taylor did not resist when Mr. Wells objected to certain testimony. In addition, Mr. Taylor relied on Mr. Well‘s advice with respеct to certain matters. Mr. Taylor delivered a closing argument to the jury.
The government‘s evidence at trial revealed Mr. Taylor came to Oklahoma
In August 1995, Abdoulia Wallace, Mr. Davis, and Mr. Taylor were staying in apartment 120 at the Silvercrest Apartments in Oklahoma City. Apparently, Jimmy D. Reed had rented the apartment for Mr. Taylor and Mr. Wallace.
On оr before August 2, 1995, the Oklahoma City Police Department obtained a search warrant permitting the police to search Silvercrest apartment 120. The police executed this search warrant on the afternoon of August 2, 1995. Mr. Taylor, Mr. Wallace, and Dominique Banks were in apartment 120 at the time of the search. When the officers entered the apartment, Mr. Taylor was “by the couch” near the front door, Mr. Banks was seated at a nearby table, and Mr. Wallace was situated in the northeast bedroom. Mr. Taylor consented to a police search of his person. Officer Mike Kelly, who conducted the search of Mr. Taylor, found no guns or weapons on Mr. Taylor.
Also at trial, Mr. Davis, Mr. Reed, and Rhonda Moore each testified they had never seen Mr. Taylor carry a gun. However, Burgundy Pierce testified she had seen Mr. Taylor with a gun on one or two occasions. Although her description of the gun she saw Mr. Taylor carrying was vague, Ms. Pierce stated it was a small handgun, and she believed it was a revolver, not an automatic.
On March 13, 1995, the jury returned a verdict of guilty against Mr. Taylor on the following threе charges: (1) conspiracy to possess with intent to distribute
At sentencing, the court asked Mr. Taylor if he wished to continue to represent himself, and Mr. Taylor responded it did not matter to him. The court complimented Mr. Taylor on his intelligence and expressed its wish it had been put to “more constructive use.” The court then sentenced Mr. Taylor to 360 months imprisonment for each drug count and 120 months imprisonment for the possession of fireаrm count. The court ordered the sentences to run concurrently.
II. ISSUES RAISED ON APPEAL
Mr. Taylor raises the following two issues on appeal: (1) whether the district court violated Mr. Taylor‘s Sixth Amendment right to counsel by failing to adequately ensure Mr. Taylor‘s decision to waive his right to counsel was made voluntarily, knowingly, and intelligently; and (2) whether Mr. Taylor‘s conviction of possession of a firearm by a convicted felon should be reversed for insufficient evidence.
A. Sixth Amendment Right to Counsel
Mr. Taylor first contends the district court violated his Sixth Amendment right to counsel by failing to adequately determine his decision to waive counsel and represent himself was made voluntarily, knowingly, and intelligently. We review de novo the question of whether a waiver of counsel is voluntary, knowing, and intelligent. Brewer v. Williams, 430 U.S. 387, 403-04 (1977); United States v. Burson, 952 F.2d 1196, 1199 (10th Cir. 1991), cert. denied, 503 U.S. 997 (1992); United States v. Silkwood, 893 F.2d 245, 248 (10th Cir. 1989), cert. denied, 496 U.S. 908 (1990).
An accused has a Sixth Amendment right to waive his right to counsel and conduct his own defense in a criminal case. Faretta v. California, 422 U.S. 806, 821, 832 (1975); United States v. Willie, 941 F.2d 1384, 1388 (10th Cir. 1991), cert. denied, 502 U.S. 1106 (1992). However, a waiver of counsel will not be valid unless it is “‘an intentional relinquishment or abandonment of a known right or privilege.‘” Willie, 941 F.2d at 1388 (quoting United States v. McConnell, 749 F.2d 1441, 1450-51 (10th Cir. 1984)). In determining whether a defendant has effectively waived his right to counsel we must conduct two distinct inquiries. First, we must determine whether the defendant voluntarily waived his right to
Applying the two-part inquiry to the case at bar, we first review whether Mr. Taylor voluntarily waived his right to counsel. The question of whether a defendant‘s waiver of counsel is voluntary turns on whether the defendant‘s objections to his counsel are such that he has a right to new counsel. Padilla, 819 F.2d at 955. In other words, for the waiver to be voluntary, this court must be confident the defendant is not forced to make a “choice” between incompetent counsel or appearing pro se. Silkwood, 893 F.2d at 248. However, “a refusal without good cause to proceed with able appointed counsel is a ‘voluntary’ waiver.” Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir. 1976). Thus, unless a defendant establishes good cause entitling him to the appointment of new counsel, the defendant‘s decision to waive counsel will be deemed voluntary. See Padilla, 819 F.2d at 955.
Next, we must decide whether Mr. Taylor knowingly and intelligently waived his right to counsel. In determining this issue, we look to the record and the entire circumstances of the case, including the defendant‘s age and education, the defendant‘s previous experience with criminal trials, and the dеfendant‘s background, experience, and conduct. Id. at 958. The Supreme Court has stated the trial judge “can make certain that an accused‘s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” Von Moltke v. Gillies, 332 U.S. 708, 724 (1947). “Ideally, the trial judge should conduct a thorough and comprehensive formal inquiry of the defendant on the record to demonstrate that the defendant is aware of the nature of the charges, the range of allowable punishments and possible defenses, and is fully informed of the risks of proceeding pro sе.” Willie, 941 F.2d at 1388. The record should establish the defendant had a sense of the magnitude of the undertaking and the inherent hazards of self-representation at the time of his decision to proceed pro se. Padilla, 819 F.2d at 956.
In Padilla, the defendant, who proceeded pro se at trial, appealed his convictions for unlawful possession of a firearm, arguing, inter alia, his Sixth Amendment right to counsel was violated because the record failed to establish he knowingly and intelligently waived his right to competent representation. Id. at 954-55. Although we stated the question of a knowing and intelligent waiver turns on the entire circumstances of the case, id. at 958, we noted, relying on Supreme Court precedent,
The task of ensuring that defendant possesses the rеquisite understanding initially falls on the trial judge, who must bear in mind the strong presumption against waiver....
To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges
and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. ....
This court has reiterated that the factors articulated must be conveyed to the defendant by the trial judge and must appear on the record so that our review may be conducted without speculation.
Id. at 956-57 (emphasis omitted) (quoting Von Moltke, 332 U.S. at 723-24). Because the record in Padilla did not indicate the trial court conducted a thorough and comprehensive examination to determine whether the defendant‘s waiver was knowingly and intelligently made, we concluded it was impossible to determine whether the defendant made his choice with his “eyes open.” Id. at 957, 959. Consequently, we reversed the defendant‘s convictions. Id. at 964.
In the present case, the trial court warned Mr. Taylor on the first day of trial that federal criminal procedure was “very technical” and “not a simple matter.” The court encouraged Mr. Taylor “to utilize Mr. Wells and get his guidance on matters that might not be familiar to [him].” Yet, other than these general advisements, the court did nothing to ensure Mr. Taylor‘s waiver of his right to counsel was knowing and intelligent. Similar tо the trial court in Padilla, the court in the present case never advised Mr. Taylor of the dangers and disadvantages of self-representation. Nor did the court ever ask Mr. Taylor his
Although the magistrate judge informed Mr. Taylor of the charges against him at his arraignment, this was done outside the context of his waiver of the right to counsel. At no time did the trial court discuss with Mr. Taylor any possible defenses to the charges against him or circumstances that might serve as mitigating factors. Furthermore, the record does not indicate the trial court ever informed Mr. Taylor that he would be expected to follow the intricate rules of evidence and criminal procedure. See id. at 957.
Notwithstanding the trial court‘s failure to “make a comprehensive and probing formal inquiry into the knowingness and intelligence of [Mr. Taylor‘s] waiver,” see Willie, 941 F.2d at 1391, the government contends the totality of the circumstances in the case establish Mr. Taylor knowingly and intelligently waived his Sixth Amendment right to counsel. The government contends Mr. Taylor is an intelligent individual who provided sound representation for himself. According to the government, because Mr. Taylor filed “skillfully written” pretrial motions, cross-examined witnesses with “the skill of a trial lawyer,” and “prоfessionally argued his case to the jury,” he understood his right to counsel and effectively
The government cites Willie in support of its argument that the record as a whole establishes Mr. Taylor effectively waived his right to counsel. 941 F.2d at 1388-91. In Willie, the defendant, who was charged with failure to file income tax returns, informed the court that he would not accept any court-appointed attorney and he objected to any attempt by the judge to violate his right of self-representation. Id. at 1389. Prior to trial, the defendant filed ten pro se petitions with the court, including amended pleadings, two motions to dismiss, and jury instructions. Id. The defendant represented himself at trial and was convicted on four cоunts of failure to file income tax returns. Id. at 1387.
Thereafter, the defendant appealed his convictions to this court, arguing, inter alia, he did not make a knowing, voluntary, and intelligent waiver of his right to counsel. Id. at 1387-88. Although we found the trial court failed to conduct a thorough inquiry of the defendant on the record to ensure the defendant was aware of the dangers and disadvantages of self-representation, we concluded the surrounding facts and circumstances demonstrated the defendant understood and effectively waived his right to counsel. Id. at 1388-90. Specifically, we held “Willie‘s repeated and unequivocal assertions of his right to self-representation,
The facts of the present case are distinguishable from Willie. Unlike the defendant in Willie, see id. at 1390, Mr. Taylor did not make “repeated and unequivocal assertions of his right to self-representation.” Mr. Taylor merely filed a notice of appearance indicating himself as counsel of record. Mr. Taylor did not even respond to the court‘s order directing Mr. Taylor to “declare his intentions [concerning self-representation]” in a written statement. In contrast to the defendant in Willie, see id. at 1388, Mr. Taylor never stated he would not accept any court-appointed attorney or “object[ed] to any attempt by the judge to violate that right.” Id. at 1389.
Nor did Mr. Taylor stubbornly refuse to accept the services of counsel, as did the defendant in Willie. See id. at 1390. Mr. Taylor permitted Mr. Wells to cross-examine a government witness and Mr. Taylor did not complain when Mr. Wells lodged certain evidentiary objections at trial. Mr. Taylor also relied on the advice of Mr. Wells at times during the trial.
In light of the strong presumption against waiver, see Padilla, 819 F.2d at 956, and the significant differences between the facts in the present case and those in Willie, we do not believe we can infer a knowing and intelligent waiver from the record in this case. At the time of trial, Mr. Taylor was an intelligent twenty-nine-year-old man.1 However, even assuming Mr. Taylor‘s pro se representation was exemplary, as the government contends, we do not believe we can conclude Mr. Taylor knowingly and intelligently wаived his right to counsel without engaging in impermissible speculation. See Padilla, 819 F.2d at 957. The district court utterly failed in its responsibility to advise Mr. Taylor of the
Notwithstanding our conclusion, the government argues in the alternative that because Mr. Taylor did not unequivocally waive his right to counsеl, Mr. Taylor received a hybrid form of representation. The government claims the trial court was under no obligation to ensure Mr. Taylor intelligently and knowingly waived his right to counsel because the representation was hybrid.
The government cites United States v. Leggett, 81 F.3d 220 (D.C. Cir. 1996) in support of its hybrid representation argument. In Leggett, the defendant was indicted and tried on charges of bribery conspiracy and bribery. Id. at 222. On the second day of trial, the defendant complained to the court concerning his counsel‘s lack of knowledge on issues the defendant deemed important to his defense. Id. at 224. When the court advised the defendant of his constitutional right to represent himself, the defendant informed the court “he was ‘not
The defendant in Leggett appealed his conviction for bribery conspiracy, arguing, inter alia, the district court violated his Sixth Amendment rights by allowing him to proceed pro se without first determining he had knowingly and willingly waived his right to counsel. Id. at 222. In reviewing the defendant‘s claim, the D.C. Circuit noted the trial court is only obligated to make the defendant aware of the dangers and disadvantages of self-representation where the defendant has chosen to proceed pro se. Id. at 224. According to the court, “[t]he law presumes that a defendant has not exercised his right to represent himself nor waived the right to counsel in the absence of an articulate and unmistakable demand by the defendant to proceed pro se.” Id. With respect to the defendant in Leggett, the court found the record clearly indicated he never waived his right to the assistance of counsel or invoked his right of self-
In the present case, as in Leggett, Mr. Taylor participated in his defense at trial along with the help of counsel. However, unlike the defendant in Leggett who never invoked his right of self-representation, Mr. Taylor clearly elected to waive his right to counsel and proceed pro se. Prior to trial, Mr. Taylor filed an appearance form indicating himself as counsel and Mr. Wells moved to withdraw as counsel of record, stating Mr. Taylor intended to represent himself. Although the court never granted Mr. Wells’ motion to withdraw, the court informed Mr. Taylor on the first day of trial that “as someone [a]ppearing on his own behalf, it‘s your right to do that, and we‘ll try the сase just as well as we can under these circumstances.” The court went on to encourage Mr. Taylor to seek Mr. Wells advise on unfamiliar matters. Thus, we believe the record establishes Mr. Taylor unequivocally invoked his right of self-representation and the court recognized such invocation. Mr. Wells’ role in Mr. Taylor‘s defense was purely as an advisory counsel. Because Mr. Taylor made an “articulable and unmistakable” demand to proceed pro se, the trial court was obligated to ensure Mr. Taylor‘s waiver of counsel was knowingly and intelligently made. See Leggett, 81 F.3d at 224. The trial court‘s failure to secure such a waiver violated Mr. Taylor‘s Sixth Amendmеnt right to counsel.2
Having determined the district court violated Mr. Taylor‘s right to competent counsel, we must next consider whether this violation is subject to harmless error review. In Allen, we interpreted the Supreme Court‘s decision in Penson v. Ohio, 488 U.S. 75 (1988), to preclude the application of harmless error analysis to waiver of counsel cases. Allen, 895 F.2d at 1579-80. “‘[T]he right to counsel is “so basic to a fair trial that [its] infraction can never be treated as harmless error.“‘” Id. at 1580 (quoting Penson, 488 U.S. at 353-54). Thus, the violation of Mr. Taylor‘s Sixth Amendment right to counsel in the case at bar was not harmless error.
B. Sufficiency of the Evidence
The jury in this case convicted Mr. Taylor of violating
It is well settled the required “possession” for purposes of
In the case at bar, it is undisputed there is no evidence Mr. Taylor ever actually possessed the Jennings Bryco nine millimeter handgun. However, the government contends it proved Mr. Taylor constructively possessed the weapon. The Oklahoma police discovered the pistol in the closet of the northeast bedroom of apartment 120. The evidence at trial indicated Mr. Taylor was residing (albeit temporarily) at apartment 120 along with Mr. Wallace and Mr. Banks on August 2, 1995. Because there was joint occupancy of the premises where the gun was found, the government is required to produce some evidence to establish a nexus between Mr. Taylor and the firearm. Mills, 29 F.3d at 549.
The government also contends it proved constructive possession through the testimony of Jimmy Reed. Mr. Reed testified he saw a .380 handgun laying on the fireplace mantle of apartment 120 on more than one occasion. We believe the testimony of Mr. Reed is irrelevant to the issue of whether Mr. Taylor constructively possessed the nine millimeter handgun. Count 5 of the indictment charged Mr. Taylor with knowingly possessing a Jennings Bryco nine millimeter
The government also contends the fact Western Union receipts and pawn shop tickets belonging to Mr. Taylor were found in the northeast bedroom established a sufficient nexus between Mr. Taylor and the Jennings Bryco nine millimeter handgun. While it is undisputed the Western Union receipts and pawn shop tickets found in the northeast bedroom belonged to Mr. Taylor, these documents were not found in the same location as the gun. The gun was found in the closet, while the Western Union receipts and pawn shop tickets were found in an entertainment center. The government did not introduce any evidence connecting the Western Union receipts or pawn shop tickets to the gun or any other evidence discovered in the closet. Thus, the Western Union receipts and pawn shop tickets merely established a connection between Mr. Taylor and the northeast bedroom, not between Mr. Taylor and the gun.
IV. CONCLUSION
Based on the foregoing reasons, we hereby reverse Mr. Taylor‘s conviction on Count 5, possession of a firearm by a convicted felon, in violation of