United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 97-1139

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Jessie Lee Wise, *

*

Appellant, * Appeal from the United States

* District Court for the

v. * Eastern District of Missouri.

*

Michael Bowersox, Supt., PCC, *

*

Appellee. *

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Submitted: December 8, 1997

Filed: February 20, 1998

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Before BOWMAN, LOKEN, and HANSEN, Circuit Judges.

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BOWMAN, Circuit Judge.

Jessie Wise was convicted of first-degree murder and sentenced to

death in a Missouri state court. The evidence showed that he attacked

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 he had killed her, and stole her money, her car, and her jewelry,

some of which he pawned and some of which he traded for cocaine. The

postconviction court denied his motion for relief. In an opinion combining

review of the issues raised in Wise's direct appeal and the issues raised

in his postconviction motion, the Supreme Court of Missouri unanimously

affirmed his conviction 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 for the Eastern 1

District of Missouri.

Subsequent to Wise's petitioning for the writ, Congress enacted the

2

Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.

1214. This act, inter alia, tightens the standards applicable to federal-court review of

applications 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 his

case; the state does not address the question. We need not decide whether the

Antiterrorism Act applies to this case because we conclude that, even applying the

standard of review that was the law before the act, Wise's petition for habeas corpus

should be denied.

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v. Wise, 879 S.W.2d 494, 501-02 (Mo. 1994) (en banc), cert. denied, 513

U.S. 1093 (1995). Following his unsuccessful appeal, Wise petitioned for

a writ of habeas corpus under 28 U.S.C. § 2254 (1994). The District Court1

denied his petition without holding an evidentiary hearing, and Wise now

appeals. We review decisions on questions of law de novo, see Culkin v.

Purkett, 45 F.3d 1229, 1232 (8th Cir.), cert. denied, 116 S. Ct. 127

(1995), but we presume that state-court findings of fact, if made after a

fair hearing and supported by the record, are correct. See 28 U.S.C. §

2254(d) (1994). For the reasons that follow, we affirm the District

2

Court's denial of Wise's petition for habeas corpus.

Wise first argues that the trial court erred in permitting him to

represent himself. A criminal defendant has the right to an attorney, but

he also has the constitutional right to waive that 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 the

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 is

considerable empirical evidence that insanity pleas in and of themselves are not

received favorably by jurors" and "Missouri law puts some formidable and carefully

wrought impediments in the way of a defendant" who hopes to succeed with an insanity

defense). 

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Because a defendant has the constitutional right to an attorney, if

he does not effectively 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 Sixth Amendment right to an

attorney is part of the "due process of law" that the Fourteenth Amendment

prohibits states from infringing). Before a defendant 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. See

Godinez v. Moran, 509 U.S. 389, 400 (1993). That is all the trial court

must find. It need not find that the defendant can conduct his defense

effectively or as effectively as an attorney. See id. at 399-400. Thus,

while Wise supports his claim that he should have been denied selfrepresentation by pointing out that he wished to present a patently

incredible conspiracy theory as his defense (his theory implicated the

victim's husband, the police, the prosecutors, and 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 requirements stated in Godinez are

satisfied.

Wise claims that the trial court ruled that he could represent

himself 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

lawyer is relevant to a case in which the defendant proceeds pro se: "Although the

Dusky 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 rational

understanding.' In other words, the focus of the Dusky formulation is on a particular

level of 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 the

judgment).

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rational understanding" and "a rational as well as factual understanding 4

of the proceedings against him." Dusky v. United States, 362 U.S. 402

(1960) (per curiam) (internal quotation marks omitted). During pretrial

proceedings on May 11, 1990, Wise moved to represent himself. The trial

court then conducted a hearing on his competence. In this hearing, the

court questioned Wise about his mental health, his educational background,

his legal knowledge, his understanding of the charges against him, and his

appreciation of the risks and burdens of self-representation. At the

conclusion of the hearing, the court stated that "the Court has had an

opportunity to observe you [Wise] the three or four times that you've been

here on various motions. 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 intelligent

choice to represent yourself." Respondent's Exhibit U at 45. Thus the

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 did

not quote the Dusky standard verbatim in making its finding, but it was not

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, 653

(1990). Wise has given us no reason to doubt that this presumption held

true here.

 Wise asserts that the trial court never determined that his waiver

of the right to counsel was knowing and voluntary and, alternatively, that

the record does not support this determination. Both assertions are

incorrect. For a defendant knowingly and
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voluntarily to choose to represent himself, "he should be made aware of the

dangers and disadvantages of self-representation, so that the record will

establish that he knows what he is doing and his choice is made with eyes

open." Faretta, 422 U.S. at 835 (internal quotation marks omitted). In

the competency hearing, Wise explicitly stated that "I knowingly and

intelligently waive the right to counsel." Respondent's Exhibit U at 26.

Wise also filed a written request to waive counsel. In this request, after

acknowledging that he had the right to an attorney and that he might

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 pro 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 dangers and disadvantages of

self-representation, thus taking proper measures to ensure that Wise's

waiver was in fact knowing and voluntary. Finally, in ruling that Wise

could proceed pro se, the court stated that it "hereby finds that the

defendant's waiver is knowingly and intelligently made, with a full

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.

Accordingly, because the trial court committed no error of law and

because its factual findings are entitled to the presumption of

correctness, a presumption Wise has failed to rebut, we hold that the trial

court correctly permitted Wise to represent himself in the guilt phase of

the trial.

Next Wise argues that the trial court deprived him of due process by

letting him represent himself in a second competency hearing that was held

on June 15 and June 28, 1990. As we already have discussed, on May 11,

1990, Wise invoked his constitutional right to defend himself, and, after

a thorough hearing on Wise's competence, the trial court properly permitted

him to exercise that right. Thus on June 15, 1990, Wise already properly

was representing himself. Wise did not request
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the assistance of a lawyer for the second competency hearing (in fact he

objected to the hearing altogether because he believed that he was

competent and he was ready to start the trial), and the trial court

correctly allowed him to continue pro se. Furthermore, although in this

hearing both Wise and the prosecutor attempted to demonstrate Wise's

competence, the contrary point of view also was well represented. The

trial court held this hearing at the instigation of Wise's standby counsel,

Timothy Braun, who had served as Wise's attorney until Wise exercised his

right to represent himself, at which time the court ordered Braun to serve

as standby counsel, ready 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 court

applied the wrong legal standard for competence and because the record does

not support the finding that he was competent. The conviction of an

incompetent person violates due process. See Pate v. Robinson, 383 U.S.

375, 378 (1966). In this competency hearing the trial court found that

Wise had a rational understanding of the proceedings against him, as Dusky

requires. The court found that:

a. Defendant was coherent and rational at all appearances.

b. Defendant demonstrated a knowledge and understanding of each

 

 portion of the trial.

c. Defendant demonstrated a knowledge of the factual

allegations against 

 him.

d. Defendant demonstrated an understanding of the roles of his

attorney, 

 the judge and the prosecuting attorney.

e. Defendant demonstrated an ability to consult with his

 attorney . . .
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Respondent's Exhibit D2 at 472-73. The record supports these findings.

Two of the three experts who examined Wise concluded that he had no mental

disease and that he was competent to be tried. In addition, the judge

properly 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 parte

because the court knew that Braun planned to disclose confidential

information, including aspects of Wise's conspiracy theory defense, in the

hearing. Wise contends that Ake v. Oklahoma, 470 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 an ex parte showing that the

question of his sanity at the time of the offense is likely to play a

significant role in the trial, he is entitled to the assistance of a

competent psychiatrist. See id. at 82-83. Ake did not hold that a

defendant has the right to an ex parte competency hearing. Under Missouri

law, moreover, parties have the right to cross-examine expert witnesses in

competency hearings. See Mo. Rev. Stat. § 552.020.7 (1994). This would

be impossible were those hearings conducted ex parte. Furthermore, the

State points out that before the June 1990 competency 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 hoped

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

assistant public defender, and several police officers involved in the

murder investigation, alleging that they conspired to violate his civil

rights by framing him for the murder. The complaints in these suits

described much of Wise's defense theory. Wise has not specified exactly

what information he had not already disclosed before the June 1990

competency hearing. Thus even if, contrary to the law, a defendant were

entitled to an ex parte competency hearing where confidential information

might be disclosed, Wise has not shown that confidential information was
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at stake here. The trial court correctly did not conduct the second

competency hearing ex parte.

Wise's next argument is that the trial court should have held yet

another competency hearing at some point later in the proceedings (he

mentions several different occasions) when he behaved irrationally. A

trial court must hold a competency hearing, on motion or sua sponte,

"whenever evidence raises a sufficient doubt about the accused's mental

competency to stand trial." Reynolds v. Norris, 86 F.3d 796, 800 (8th Cir.

1996) (internal quotation marks omitted). Wise contends that his

competence was cast into doubt when he made some purportedly foolish

decisions during the trial. But bad trial tactics do not prove a defendant

incompetent. A defendant has the right to conduct his own defense to his

detriment. See Faretta, 422 U.S. at 834. Having reviewed the record, we

agree with the trial court, the Supreme Court of Missouri, and the District

Court that Wise's performance during the trial was not such as to raise a

doubt about his competence. Accordingly, the trial court did not fall into

constitutional error by failing to order a third competency hearing. 

In his final argument based on his alleged incompetence, Wise

contends that the trial court violated his right not to be a witness

against himself, guaranteed by the Fifth and Fourteenth Amendments, by

ordering him to submit to a psychological examination by Dr. Michael Armour

in June of 1990. Dr. Armour examined Wise to determine whether he was

competent to stand trial. He found that Wise was competent, and the trial

court relied in part on his opinion when it found Wise competent in the

June 1990 hearing. Wise does not argue that information he disclosed to

Dr. Armour was used against him in the trial. More creatively, he argues

that he refrained from disclosing certain information to Dr. Armour out of

fear that it would be used against him in the trial; that if he had

disclosed this information (including his defense theory) then Dr. Armour

would have determined that he was incompetent; that the trial court would

have agreed with Dr. Armour's assessment and therefore would not have

allowed him
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to be tried; and that, accordingly, his exercise of his Fifth Amendment

right unlawfully worked to his detriment. This argument is meritless.

No violation of the privilege against self-incrimination arises from

a trial court's ordering a defendant to undergo a psychological examination

if the information gained in that examination is used solely to determine

whether the defendant is competent to stand trial and not to show that the

defendant is guilty or that he deserves a particular sentence. See Estelle

v. Smith, 451 U.S. 454, 465 (1981). Following that reasoning, we hold that

no violation of the privilege against self-incrimination occurs where a

defendant's choice to remain silent in a psychological 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 not

show that as a result of choosing to speak less freely to Dr. Armour he was

deprived of his right not to incriminate himself.

Wise next contends that the trial court deprived him of the right to

be confronted with the witnesses against him, in violation of the Sixth and

Fourteenth Amendments, by limiting his cross-examination of prosecution

witness Dexter Davis. Wise wished to examine Davis about several offenses

for which Davis was "wanted" in order to suggest that Davis was testifying

in exchange for immunity from prosecution for those violations. The trial

court did not permit Wise to do so. "[T]rial judges retain wide latitude

insofar as the Confrontation Clause is concerned to impose reasonable

limits [on cross-examination attempting to show that a prosecution witness

is biased] 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. 673, 679 (1986). The trial court did not exceed its "wide

latitude" here. A party has no right to impeach a witness's credibility

with evidence of "wanteds" or arrests. Wise, moreover, had no evidence

that the prosecution had any knowledge of these wanteds (which were not

even arrest
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warrants), much less that the prosecution and Davis had struck some kind

of deal. Accordingly, Wise's proposed line of inquiry had little relevance

to the case but could have been highly prejudicial. The trial court did

not abuse its discretion by restricting Wise's cross-examination of Davis.

Wise's last three arguments concern the sentencing phase of the

trial. First Wise contends that the trial court deprived him of his rights

under the Sixth, Eighth, and Fourteenth Amendments by permitting the

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 the

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 that

the jury could see some relatives of his first victim seated in the front

row, weeping, during the sentencing phase.

In determining whether to sentence a defendant to death, a jury may

consider the defendant's prior crimes. See Romano v. Oklahoma, 512 U.S.

1, 3 (1994) (upholding a death sentence where, in the sentencing phase, the

prosecution had introduced evidence of the defendant's prior murder

conviction). We have upheld a death sentence imposed by a jury that viewed

the defendant's videotaped confession to a prior murder of an elderly

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 here

were just as relevant as and no more prejudicial than was that videotape.

The trial judge, moreover, properly handled the presence of the first

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
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hold that the jury's exposure to information about Wise's prior conviction

did not cause the violation of Wise's constitutional rights.

In his penultimate contention, Wise claims that the trial court

violated his Sixth Amendment right to counsel by denying his attorney's

request for a continuance prior to the sentencing phase. After

representing himself in the guilt phase of his trial, Wise opted to be

represented in the sentencing phase by his two standby attorneys. He did

not make this decision until the jury started deliberating on his guilt at

12:05 P.M. on December 10, 1990. One of Wise's standby lawyers then

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 denied 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 next 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 attending the trial, were familiar

with the case, and had known of the possibility that they would be called

upon to conduct the sentencing phase, so there is no reason to presume that

this additional day would have made a difference in their performance.

Accordingly, Wise bears the burden of showing that the denial of the

continuance did negatively affect his lawyers' performance in the

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 must

prove that his lawyers performed ineffectively unless in the circumstances

of the case "the likelihood that any lawyer, even a fully competent one,

could provide effective assistance is so small that a presumption of

prejudice is appropriate without inquiry into the actual conduct of the

trial"). Because Wise must show that the denial of the continuance

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.
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Wise contends 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 the

representation was constitutionally deficient and if the deficiency

prejudiced the defendant. See Strickland v. Washington, 466 U.S. 668, 687

(1984). Representation is constitutionally deficient if "counsel made

errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Id. Constitutionally

deficient representation prejudices a defendant if "there is a reasonable

probability that, but for counsel's unprofessional errors, the result of

the proceeding would have been different." Id. at 694. In Wise's

postconviction relief hearing, his lead lawyer did not testify. According

to Wise's other lawyer, who did testify at the postconviction hearing, the

lead lawyer was responsible for the decisions made in the sentencing phase.

Accordingly, in reviewing these decisions, we cannot know the thought

processes of the lead attorney and we therefore must rely on the record of

the sentencing phase. We bear in mind that "[j]udicial scrutiny of

counsel's performance must be highly deferential." Id. at 689. Wise takes

issue with several aspects of his lawyers' performance, each of which we

will consider in turn.

Wise first asserts that his lawyers ineffectively assisted him

because, as a result of the denial of the continuance, they did not

sufficiently prepare for the sentencing phase. Even if it were true that

they did not sufficiently prepare (a question we do not decide), inadequate

preparation in itself does not prejudice a defendant. Wise must show that

his lawyers' poor preparation resulted in a poor--and prejudicial--

performance. Thus, even assuming for the sake of argument that Wise's

lawyers were unprepared, we will not grant Wise relief for this reason

alone.

Next Wise argues that his lawyers should have given the jury more

information about three subjects: Wise's troubled childhood, his poetry,

and his aptitude for music. The record shows that the jury did hear about

each of these subjects in some detail. We decline to second-guess Wise's

attorneys by holding that they should have pursued
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these subjects further, and we cannot say that pursuing 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 testimony that

his personality changed for the worse when he abused cocaine. Wise

contends that, since some evidence presented in the guilt phase showed that

he used cocaine before he murdered McDonald, the jurors would have

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 failing

to elicit this testimony was so grave an error as to deprive him of his

constitutional right to counsel, or even that it was an error at all. Even

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 likely to sympathize with Wise if they were presented with

testimony that drug abuse may have contributed to his crime.

Next Wise contends that his lawyers should have called Dr. William

O'Connor to 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. They 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 decisions

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.

Finally, Wise argues that his attorneys should have moved in the

sentencing phase for another competency hearing. Wise has not shown that

his lawyers fell short of the constitutional standard of conduct by not so

moving, much less that he was prejudiced by this omission. Given that Wise

already had been adjudicated competent not once but twice before the trial,

that his performance in the trial did not cast his
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competence into doubt, and that he has offered us no reason to think that

he was less competent after the trial than before, we can only conclude

that any motion for additional competency proceedings at the sentencing

phase would have been doomed to likely, and appropriate, failure.

For the reasons stated above, we reject Wise's claim of ineffective

assistance of counsel in the sentencing phase of his trial.

The District 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.