United States Court of Appeals 

### FOR THE EIGHTH CIRCUIT

_____________ No. 97-1139

_____________ Jessie Lee Wise, *
* Appellant, * Appeal from the United States
* District Court for the
v. * Eastern District of Missouri.
* Michael Bowersox, Supt., PCC, *
* Appellee. *

_____________ Submitted: December 8, 1997 Filed: February 20, 1998

_____________ Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.

_____________ BOWMAN, Circuit Judge.
Jessie Wise was convicted of first-degree murder and sentenced t o death in a Missouri state court. The evidence showed that he attacke d Geraldine McDonald without provocation and beat her to death with a pipe wrench on August 27, 1988. Over the next two days he burglarized her home , where h e had killed her, and stole her money, her car, and her jewelry , som e of which he pawned and some of which he traded for cocaine. Th e postconviction court denied his motion for relief. In an opinion combinin g review of the issues raised in Wise's direct appeal and the issues raised in his postconviction motion, the Supreme Court of Missouri unanimousl y affirmed his convicti on and sentence. The facts of the case are detailed in that court's opinion, State

## The Honorable George F. Gunn, Jr., United States District Judge f or the Eastern 1 

## District of Missouri. S ubsequent

to Wise's petitioning for the writ, Congress enacted th e 2 

## Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214. Thi s act, inter alia , tightens the standards applicable to federal-court review of ap plications for writs of habeas corpus filed under § 2254 by state prisoners. See 28 U.S.C.A. § 2254(d) (Supp. 1997). Wise contends that the act does not apply to hi s cas e; the state does not address the question. We need not decide whether th e Ant iterrorism

Act applies to this case because we conclude that, even applying th e standard of review that was the law before the act, Wise's petition for habeas corpus should be denied.
-2- v. Wise , 879 S.W.2d 494, 501-02 (Mo. 1994) (en banc), cert. denied , 51 3 U.S. 1093 (1995). Fo llowing his unsuccessful appeal, Wise petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 (1994). The Dist rict Court 1 denied his petition without holding an evidentiary hearing, and Wise now appeals. We review decisions on questions of law de novo, see Culkin v. Purket t , 45 F.3d 1229, 1232 (8th Cir.), cert. denied , 116 S. Ct. 12 7 (1995), but we presum e that state-court findings of fact, if made after a fair he aring and supported by the record, are correct. See 28 U.S.C. § 2254(d) (1 994). For the reasons that follow, we affirm the Distric t 2 Court's denial of Wise's petition for habeas corpus.

Wise first argues that the trial court erred in permitting him t o represent himself. A criminal defendant has the right to an attorney, but he also has the constitutional right to waive th at right and to act as his own lawyer. See Faretta v. California , 422 U.S. 806, 807 (1975). In this

case Wise chose to exercise his right to defend himself. He represented himself in the guilt phase of his trial, following which he was convicted of first-degree murder, but decided to be represented by counsel in th e sentencing phase. Now he argues that the trial court was wrong to grant him his wish for self-representation in the guilt phase of his trial.

## Besides, it is by no means clear that Wise would have been better off with the 3 

## insanity defense his attorneys wished to employ. See Weekley v. Jones , 76 F.3d 1459, 1463 (8th Cir.) (en banc), cert. denied , 117 S. Ct. 269 (1996) (stating that "there i s considerable empirical evidence that insanity pleas in and of themselves are no t
rece ivedfavorably by jurors" and "Missouri law puts some formidable and carefull y wrought impediments in the way of a defendant" who hopes to succeed wit h an insanity defense).
-3- Because a defendant has the constitutional right to an attorney, if he does not effective ly waive that right, yet is put to trial without the assistance of counsel , his conviction and punishment violate due process. See Faretta , 422 U.S. at 818 (holding that the S ixth Amendment right to an attorney is part of the "due process of law" tha t the Fourteenth Amendment prohibits states from infringing). Before a def endant may waive the right to counsel, the trial court must determine that he is competent to stand trial and that he is knowingly and voluntarily waiving his right. Se e Godinez v. Moran , 509 U.S. 389, 400 (1993). That is all the trial court must fi nd. It need not find that the defendant can conduct his defens e effectively or as eff ectively as an attorney. See id. at 399-400. Thus, while Wis e supports his claim that he should have been denied self

representation by pointing out that he wished to present a patentl y incred ible conspiracy theory as his defense (his theory implicated th e victim's husband, the police, the prosecutors, a nd the public defenders in both the murder and an alleged plot to frame Wise for the crime), a poor defense theory alone does not prove that a defendant should not have been allowed to waive the right to counsel

. A defendant may effectively waive 3 the right to counsel as long as the two requirem ents stated in Godinez are satisfied.

Wise c laims that the trial court ruled that he could represen t himse lf without first inquiring into his competence to stand trial. A defendant is competent to be tried if he has "sufficient present ability to consult with his lawyer with a reasonable degree of

## Justice Kennedy has explained how the ability rationally to consult with a 4 

## la wyer is relevant to a case in which the defendant proceeds pro se: "Although th e D u sky standard refers to 'ability to consult with [a] lawyer,' the crucial component of the inquiry is the defendant's possession of 'a reasonable degree of rationa l understanding.' In other words, the focus of the Dusky formulation is on a particular level o f mental functioning, which the ability to consult counsel helps identify. " Godinez , 509 U.S. at 403-04 (Kennedy, J., concurring in part and concurring in th e judgment).
-4- rational u nderstanding" and "a rational as well as factual understanding 4 of the proceedings against him." Dusky v. United States , 362 U.S. 40 2 (1960) (per curiam) (internal quotation marks omitted). During pretrial proceedings on May 11, 1990, Wise moved to represent himself. The trial court the n conducted a hearing on his competence. In this hearing, th e court questioned Wise about his mental health, h is educational background, his legal knowledge, his understanding of the ch arges against him, and his appreci ation of the risks and burdens of self-representation. At th e conclusion of the hearing, the court stated that "the Court has had a n opportunity to observe you [Wise] the three or f our times that you've been here on various motio ns. And from my observation of you, both physically and by the nature of questions and answers that you gave . . . it's my belief that you're competent to proceed and you've made an intelligen t choice to represent yourself." Respondent's Exhibit U at 45. Thus th e court did find that Wise had a rational understanding of the proceedings against him and that he therefore was competent to be tried. The court di d not quote the Dusky standard verbatim in making its finding, but it was no t required to do so: "Trial judges are presumed to know the law and to apply it in making their decisions." Walton v. Arizona , 497 U.S. 639, 65 3 (1990). Wise has given us no reason to doubt that this presumption held true here.

Wise ass erts that the trial court never determined that his waiver of the right to counsel was knowing and voluntar y and, alternatively, that the record does not support this determination. Both assertions ar e incorrect. For a defendant knowingly and

## -5-

voluntarily to choose to represent himself, "he should be made aware of th e dangers and disadvant ages of self-representation, so that the record will establish that he kno ws what he is doing and his choice is made with eyes open." Faretta , 422 U.S. at 835 (internal quotation marks omitted). In the co mpetency hearing, Wise explicitly stated that "I knowingly an d intelligently waive t he right to counsel." Respondent's Exhibit U at 26. Wise also filed a written request to waive counsel. In this request, afte r acknow ledging that he had the right to an attorney and that he migh t receive the death penalty, Wise concluded that "[k]nowing all of the above , it is my knowing and voluntary desire to waive my right to counsel and to proceed p ro se as my own attorney." Respondent's Exhibit D1 at 223-24

. The trial court, moreover, did not take Wise's statements at face value. The court spoke with Wise at length about the da ngers and disadvantages of self -representation, thus taking proper measures to ensure that Wise' s waiver wa s in fact knowing and voluntary. Finally, in ruling that Wis e
cou ld proceed pro se, the court stated that it "hereby finds that th e defend ant's waiver is knowingly and intelligently made, with a ful l understanding of the risks of self-representation." Respondent's Exhibit U at 45. Thus the court did determine that Wise knowingly and voluntarily waived the right to counsel, and the record supports this determination.

Accordin gly, because the trial court committed no error of law an d becaus e its factual findings are entitled to the presumption o f correctness, a presumption Wise has failed to rebut, we hold that the tria l court correctly permi tted Wise to represent himself in the guilt phase of the trial.

Next Wise argues that the trial cour t deprived him of due process by letting him represent himself in a second compet ency hearing that was held

on June 15 and June 28, 1990. As we already have discussed, on May 11 , 1990, Wise invoked hi s constitutional right to defend himself, and, after

a thorough hearing on Wise's competence, the trial court properly permitte d him to exercise that right. Thus on June 15, 1990, Wise already properly was representing himself. Wise did not request

## -6-

the assistance of a lawyer for the second competency hearing (in fact he objected to the hearing altogether because he believed that he wa s competent and he was ready to start the trial), and the trial cour t correctly allowed him to continue pro se. Furthermore, although in this hearin g both Wise and the prosecutor attempted to demonstrate Wise' s compe tence, the contrary point of view also was well represented. Th e trial court held this hearing at the instigation of Wise's standby counsel , Timothy Braun, who ha d served as Wise's attorney until Wise exercised his right to represent himself, at which time the co urt ordered Braun to serve as standby counsel, r eady to consult with Wise. Braun believed that Wise was incompetent, and he attempted to show this at the hearing. The court allowed Braun to speak and to examine both of the experts who testified. This hearing, like the hearing held one month before, was a fair inquiry into Wise's competence in which Wise was afforded due process.

Wise also claims that in the June 1990 competency hearing the trial court incorrectly found him competent to stand trial because the cour t applied the wrong legal standard for competence and because the record doe s not su pport the finding that he was competent. The conviction of a n incompetent person violates due process. See Pate v. Robinson , 383 U.S. 375, 378 (1966). In this competency hearing the trial court found tha t Wise had a rational understanding of the proceed ings against him, as Dusky requires. The court found that:
a. Defendant was coherent and rational at all appearances. b. Defendant demonstrated a knowledge and understan ding of each portion of the trial.
c. Defendant demonstrated a knowledge of the factua l allegations against him. d. Defendant demonstrate d an understanding of the roles of his attorney, the judge and the prosecuting attorney. e. Defendant demonstrated an ability to consult with his attorney . . .

## -7-

Res pondent's Exhibit D2 at 472-73. The record supports these findings

. Two of the three experts who examined Wise concl uded that he had no mental disease and that he was competent to be tried. In addition, the judg e pro perly relied on his own observations of and conversations with Wise

. For these reasons, Wise's claim must be, and is, rejected.

In another argument concerning the June 1990 competency hearing , Wise argues that the trial court should have conducted that hearing ex part e becaus e the court knew that Braun planned to disclose confidentia l information, including aspects of Wise's conspir acy theory defense, in the hearing. Wise contends that Ake v. Oklahoma , 47 0 U.S. 68 (1985), required the court to conduct the hearing ex parte. Wise is incorrect. In Ake , the Supreme Court held that, if a defendant makes anex parte showing that the que stion of his sanity at the time of the offense is likely to play a signif icant role in the trial, he is entitled to the assistance of a competent p sychiatrist. See id. at 82-83. Ake did not hold that a defendant has the right to an ex parte competenc y hearing. Under Missouri law, moreover, parties have the right to cross-e xamine expert witnesses in competency hearings. See Mo. Rev. Stat. § 552.020.7 (1994). This would be impossible were those hearings conducted ex parte. Furthermore, th e State points out that before the June 1990 compe tency hearing Wise already had disclosed much of the allegedly confidential information at issue. In

a pretrial hearing on May 17, 1990, Wise stated in open court that he hope d to prove in the trial that the victim's husband committed the murder. In addition, in 1989 Wise filed two suits against the county prosecutor, an assist ant public defender, and several police officers involved in th e murder investigation, alleging that they conspired to violate his civi l rights by framing him for the murder. The complaints in these suit s described much of Wise's defense theory. Wise has not specified exactly what inf ormation he had not already disclosed before the June 199 0 competency hearing. Thus even if, contrary to the law, a defendant were entitled to an ex par te competency hearing where confidential information might be disclosed, Wise has not shown that confidential information was

## -8-

at sta ke here. The trial court correctly did not conduct the secon d competency hearing ex parte.

Wise's next argument is that the trial court should have held ye t another competency hearing at some point later in the proceedings (h e mentio ns several different occasions) when he behaved irrationally. A tria l court must hold a competency hearing, on motion or sua sponte , "whene ver evidence raises a sufficient doubt about the accused's menta l competency to stand trial." Reynolds v. Norris , 86 F.3d 796, 800 (8th Cir

. 1996) (internal quotation marks omitted). Wise contends that hi s comp etence was cast into doubt when he made some purportedly foolis h decisions during the trial. But bad trial tactics do not prove a defendan t incompetent. A defen dant has the right to conduct his own defense to his detriment. See Faret ta , 422 U.S. at 834. Having reviewed the record, we agree with the trial court, the Supreme Court of Missouri, and the Distric t Court that Wise's per formance during the trial was not such as to raise a doubt about his competence. Accordingly, the trial court did not fall int o constitutional error by failing to order a third competency hearing.

In his final argument based on his alleged incompetence, Wis e conten ds that the trial court violated his right not to be a witnes s agains t himself, guaranteed by the Fifth and Fourteenth Amendments, b y ordering him to submit to a psychological examination by Dr. Michael Armou r in June of 1990. Dr. Armour examined Wise to determine whether he wa s competent to stand trial. He found that Wise wa s competent, and the trial court r elied in part on his opinion when it found Wise competent in th e June 1990 hearing. Wise does not argue that information he disclosed to Dr. Armour was used a gainst him in the trial. More creatively, he argues that he refrained from disclosing certain inform ation to Dr. Armour out of fear that it would be used against him in the trial; that if he ha d disclosed this inform ation (including his defense theory) then Dr. Armour would have determinedthat he was incompetent; that the trial court would have ag reed with Dr. Armour's assessment and therefore would not hav e allowed him

## -9-

to be tried; and that, accordingly, his exercise of his Fifth Amendmen t right unlawfully worked to his detriment. This argument is meritless.

No violation of the privilege agains t self-incrimination arises from

a trial court's ordering a defendant to undergo a psychological examinatio n if the information ga ined in that examination is used solely to determine whether the defendant is competent to stand tria l and not to show that the defendant is guilty or that he deserves a particular sentence. See Estell e
v. Smith , 451 U.S. 454, 465 (1981). Following that reasoning, we hold tha t
no vio lation of the privilege against self-incrimination occurs where a defendant's choice to remain silent in a psychol ogical examination affects the determination that he is competent but not the determination that he is guilty or that he merits a certain sentence. Thus, even if we were to accept Wise's speculative argument that had he spoken more freely to Dr. Armour then Dr. Armour would have found him incompetent, this would no t show that as a result of choosing to speak less freely to Dr. Armour he wa s deprived of his right not to incriminate himself.

Wise next contends that the trial co urt deprived him of the right to be confronted with the witnesses against him, in violation of the Sixth an d Fourt eenth Amendments, by limiting his cross-examination of prosecutio n witness Dexter Davis. Wise wished to examine Da vis about several offenses for which Davis was "wanted" in order to suggest that Davis was testifying in exchange for immunity from prosecution for th ose violations. The trial court did not permit Wise to do so. "[T]rial judges retain wide latitude insofa r as the Confrontation Clause is concerned to impose reasonabl e limits [on cross-examination attempting to show that a prosecution witness is bia sed] based on concerns about, among other things, harassment , prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall , 475 U.S. 67 3, 679 (1986). The trial court did not exceed its "wid e latitude" here. A party has no right to impeach a witness's credibility with evidence of "wanteds" or arrests. Wise, moreover, had no evidenc e that the prosecution had any knowledge of these wanteds (which were no t even arrest

## -10-

warrants), much less that the prosecution and Davis had struck some kind of deal. Accordingly, Wise's proposed line of inquiry had little relevanc e to the case but could have been highly prejudicial. The trial court did not abuse its discretion by restricting Wise's c ross-examination of Davis.

Wise's last three arguments concern the sentencing phase of th e trial. First Wise contends that the trial court deprived him of his right s under the Sixth, Eighth, and Fourteenth Amendments by permitting th e prosecution to introduce certain evidence related to and to make certain remarks about Wise's prior conviction for first-degree murder. Wise was on parole from the sentence imposed on the prior murder conviction when he murdered McDonald. He objects to the admission of the transcript of his guilty plea in the earlier case because that transcript referred to th e victim as a family man and mentioned that Wise, when still a juvenile, had been convicted of other felonies. Wise also objects to the prosecutor's having told the jury that Wise received mercy in the first case and that he therefore should receive no mercy now. In addition, Wise complains tha t the jury could see so me relatives of his first victim seated in the front row, weeping, during the sentencing phase.

In determ ining whether to sentence a defendant to death, a jury may consider the defenda nt's prior crimes. See Romano v. Oklahoma , 512 U.S. 1, 3 (1994) (upholding a death sentence where, in the sentencing phase, th e prose cution had introduced evidence of the defendant's prior murde r conviction). We have upheld a death sentence imposed by a jury that viewe d the def endant's videotaped confession to a prior murder of an elderl y couple. See Gilmore v. Armontrout , 861 F.2d 1061, 1072-73 (8th Cir. 1988) , cert. denied , 490 U.S. 1114 (1989). The evidence and remarks at issue her e were just as relevant as and no more prejudicial than was that videotape. The tri al judge, moreover, properly handled the presence of the firs t victim's family members: when he saw them weeping, he declared a recess, removed the jury from the courtroom, and had the family members move to a location farther from the jury. We

## -11-

hold that the jury's exposure to information abo ut Wise's prior conviction did not cause the violation of Wise's constitutional rights.

In his penultimate contention, Wise claims that the trial cour t vio lated his Sixth Amendment right to counsel by denying his attorney' s request f or a continuance prior to the sentencing phase. Afte r representing himself in the guilt phase of his trial, Wise opted to b e represented in the se ntencing phase by his two standby attorneys. He did not make this decision until the jury started de liberating on his guilt at 12:05 P.M. on December 10, 1990. One of Wise's standby lawyers the n requested that, if the jury returned its verdict that afternoon, the trial court declare a continuance so that he could have the entire next day to prepare for the sentencing phase. The court den ied his request. The jury returned its verdict of guilty at 2:15 P.M. that day. Wise's lawyers then had until 9:00 the ne xt morning to prepare for the sentencing phase. Had the continuance been granted, they would have gained twenty-four hours.

Wise's standby attorneys had been at tending the trial, were familiar with the case, and ha d known of the possibility that they would be called upon to conduct the sentencing phase, so there is no reason to presume tha t this additional day would have made a difference in their performance

. Acco rdingly, Wise bears the burden of showing that the denial of th e
con tinuance did negatively affect his lawyers' performance in th e sentencing phase. Cf. United States v. Cronic , 466 U.S. 648, 658-60 (1984 ) (holding that a defendant alleging a violation of his right to counsel mus t prove that his lawyers performed ineffectively u nless in the circumstances of the case "the likelihood that any lawyer, even a fully competent one, coul d provide effective assistance is so small that a presumption o f pre judice is appropriate without inquiry into the actual conduct of th e trial"). Because Wise must show that the denial of the continuanc e resulted in his lawyers performing inadequately so as to violate his right to counsel, his argument on this point necessarily coalesces into his next , and final, argument, to which we now turn.

## -12- Wise cont ends that his lawyers ineffectively represented him in the sentencing phase, in violation of his right to counsel. We will reverse

a death sentence for ineffective assistance of counsel only if th e representation was constitutionally deficient and if the deficienc y prejudiced the defendant. See Strickland v. Was hington , 466 U.S. 668, 687 (198 4). Representation is constitutionally deficient if "counsel mad e
errors so serious that counsel was not functioning as the 'counsel ' guaranteed the defendant by the Sixth Amendment." Id. Constitutionally deficient representat ion prejudices a defendant if "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceed ing would have been different." Id. at 694. In Wise' s postconviction relief hearing, his lead lawyer d id not testify. According to Wise's other lawyer, who did testify at the p ostconviction hearing, the lead lawyer was responsible for the decisions made in the sentencing phase

. Accord ingly, in reviewing these decisions, we cannot know the though t processes of the lead attorney and we therefore must rely on the record of the sente ncing phase. We bear in mind that "[j]udicial scrutiny o f counsel's performance must be highly deferential." Id. at 689. Wise take s issue with several aspects of his lawyers' performance, each of which we will consider in turn.

Wise f irst asserts that his lawyers ineffectively assisted hi m because, as a result of the denial of the continuance, they did no t sufficiently prepare for the sentencing phase. Even if it were true that they did not sufficiently prepare (a question we do not decide), inadequat e preparation in itself does not prejudice a defen dant. Wise must show that his l awyers' poor preparation resulted in a poor--and prejudicial-

- perfo rmance. Thus, even assuming for the sake of argument that Wise' s lawye rs were unprepared, we will not grant Wise relief for this reaso n alone.

Next Wise argues that his lawyers should have given the jury mor e information about three subjects: Wise's troubled childhood, his poetry, and his aptitude for music. The record shows th at the jury did hear about each of these subject s in some detail. We decline to second-guess Wise's attorneys by holding that they should have pursued

## -13-

these subjects further, and we cannot say that p ursuing them further would have given rise to a reasonable probability of a different result. Thus, these contentions fail.

Wise also argues that his lawyers should have elicited testimon y that his perso nality changed for the worse when he abused cocaine. Wis e contends that, since some evidence presented in the guilt phase showed tha t he used cocaine before he murdered McDonald, the jurors would hav e sympathized with him had they been told that he was a better person when he was not under the influence of cocaine. Wise has not shown that failin g to el icit this testimony was so grave an error as to deprive him of hi s constitutional right to counsel, or even that it was an error at all. Eve n in the unlikely event that additional testimony was necessary to lead the jury to the unsurprising conclusion that cocaine negatively affected Wise, Wise's lawyers might reasonably have concluded that the jurors would not be more l ikely to sympathize with Wise if they were presented wit h testimony that drug abuse may have contributed to his crime.

Next Wis e contends that his lawyers should have called Dr. Willia m O'Connor t o testify that Wise suffered from a mental disease. Wise' s lawyers met with Dr. O'Connor shortly before the sentencing phase, and he told them he was willing to testify for Wise. T hey nevertheless chose not to call him. Wise has given us no reason to think that this was not a strategic decision made after meeting with Dr. O'Connor, and such decision s are "virtually unchallengeable" under Strickland

. Id. at 690. We decline to question this decision here. The failure to call Dr. O'Connor did not deprive Wise of his right to constitutionally effective counsel.

Fi nally, Wise argues that his attorneys should have moved in th e sentencing phase for another competency hearing. Wise has not shown that his lawyers fell short of the constitutional sta ndard of conduct by not so moving, much less that he was prejudiced by this omission. Given that Wis e already had been adjudicated competent not once but twice before the trial , that his performance in the trial did not cast his

## -14-

competence into doubt , and that he has offered us no reason to think that he was le ss competent after the trial than before, we can only conclud e that a ny motion for additional competency proceedings at the sentencin g phase would have been doomed to likely, and appropriate, failure.

For the r easons stated above, we reject Wise's claim of ineffective assistance of counsel in the sentencing phase of his trial.

The Distr ict Court's denial of Wise's petition for a writ of habeas corpus is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.