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People v. Taylor

December 24, 2009

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
KEITH DESMOND TAYLOR, DEFENDANT AND APPELLANT.



San Bernardino County Super. Ct. No. FRE00861 James A. Edwards.

The opinion of the court was delivered by: Werdegar, J.

Keith Desmond Taylor was convicted and sentenced to death for the 1994 murder of Marilyn Mishak, committed in the course of burglarizing Mishak's Redlands home and robbing her. Defendant, who represented himself at trial, contends he was mentally incompetent to conduct his own defense and should not have been permitted to do so. We affirm the judgment.

Factual and Procedural

On the night of September 1, 1994, someone broke into Marilyn Mishak's condominium and stabbed and strangled her to death. Defendant was tied to the burglary and killing primarily by his fingerprints found at the scene and by witnesses who placed him in the vicinity at the time. The jury convicted defendant of first degree murder, robbery and burglary, and found true special circumstance allegations of murder in the commission of burglary and robbery. (Pen. Code, §§ 187, 189, 190.2, 211, 459.) The jury set the penalty for the murder at death, and defendant was so sentenced.

Guilt Phase Evidence

On August 31, 1994, defendant stayed with Clemente Calloway at the home of Calloway's grandmother. On September 1, Calloway and defendant went to dinner at a friend's house. They left around 9:00 p.m., and on the way home defendant said he wanted to get a beer. Because no drinking was permitted at his grandmother's, Calloway dropped defendant at a 7-Eleven convenience store a few blocks away, less than a mile from Mishak's condominium. Defendant did not return to Calloway's grandmother's house that night, and Calloway next saw defendant in court.

About 11:30 p.m. on September 1, Kevin Holman, who lived in Mishak's neighborhood, heard tapping on one of his windows. Soon after that, the doorbell rang and Holman answered it to find a young African- American man in dark clothing. The man asked for "Yolanda"*fn1 and, when told no one by that name lived there, walked away. In a photographic lineup and at trial, Holman identified defendant as the man on his doorstep, though he was not absolutely certain of either identification. About 11:45 p.m., another neighbor, Anne Mills, was awakened by her doorbell ringing. After turning on lights and waiting a few minutes, she looked out the window but saw no one at the door.

Mishak was a developmentally disabled 33-year-old woman who lived alone. Her mother talked to her around 4:00 p.m. on September 1 and went to check on her the next day when she did not come to work. She noticed the garage and condominium were uncharacteristically messy; no morning coffee had been made; and a bottle of wine, which Mishak never drank but kept in a cupboard for her father, was on the counter. In the living room, she found Mishak's body lying on the floor, an electrical cord wrapped around her neck.

Police officers called to the scene found the victim lying facedown with the cord around her neck. She was wearing a bloodstained T-shirt, and her underpants were down at her feet. A knife with a three and one- half-inch handle, similar to ones in a butcher block in the kitchen, was embedded in the victim's abdomen.

The autopsy showed Mishak had been strangled and stabbed in the abdomen, piercing her liver. Either event could have been fatal. Her body also bore bruises in several areas. The medical examiner opined the stabbing and strangling had probably occurred within a few minutes of each other, as the amount of bleeding and hemorrhaging indicated the victim was alive during each.

Mishak's father testified that after her killing he tested the garage door and found that when its handle was pulled upward from the outside, the motion activated the automatic garage door opener and the door opened fully. Doors from the garage into the laundry room and the dining room bore pry marks and had been propped open. A twisted metal strip and a spatula-like tool, which police found on the garage floor, could have been used to pry open the doors. Also found on the garage floor was a paper bag containing a beer bottle.

In the bedrooms, closets and drawers were open. Mishak's jewelry boxes were sitting on the bed and rug in her bedroom, and the contents of her purse had been emptied onto the floor. The victim's mother later examined the condominium's contents and identified several missing items, including the garage door opener and the victim's wallet, watches and other jewelry.

When a latent fingerprint from the paper bag containing the beer bottle was compared to fingerprints in law enforcement databases, it matched defendant's fingerprint. Defendant's fingerprints were then compared to others taken from the victim's condominium. They matched latent fingerprints on the frame of an exterior door, on the wine bottle found on the kitchen counter, and on one of Mishak's jewelry boxes.

A police detective visited 20 to 25 stores in the vicinity to find any that sold 40-ounce bottles of Magnum Malt Liquor, the type of bottle found in the paper bag on the garage floor, and used No. 8 size bags certified as 50 percent recycled by Scientific Certification Laboratories, the type of bag found on the garage floor. He found only one match for the combination of bag and beverage: the 7-Eleven store where Calloway left defendant to buy beer on the night of the killing.

Called to the stand by defendant, another of Mishak's neighbors testified that early on the morning of September 2, 1994, she saw a man, whom she described to police as White or Hispanic, walking in the area and carrying a paper bag. Several days later, also in the early morning, she saw the same person from closer up; this time he was wearing a backpack and looked like a teenager.

Defendant also called a clerk at the 7-Eleven store and re-called the principal police investigator, Detective Garcia, in an effort to suggest the crimes may have been committed by Jesse Mason, who Garcia had learned was also staying at Calloway's grandmother's house at the time. Garcia had shown the clerk a photograph of Jesse Mason as part of a photographic lineup. She recognized one picture in the lineup (which did not include defendant's photograph) as that of a regular customer. Some days later, Garcia interviewed Mason and searched his residence, but eliminated him as a suspect when his fingerprints failed to match any of the latent prints taken from the crime scene.

Finally, defendant extensively examined the forensic specialist who lifted latent fingerprints from the scene, a detective who helped collect evidence at the scene, a clerk in the fingerprint examiner's office, and the supervisor of that office regarding the numbering system used to mark latent prints and other evidence and the procedures the examiner's office followed for logging and tracking prints. His apparent goal was to cast doubt on the identification of his fingerprints at the scene by proving gaps or discrepancies in the collection and comparison procedures.

Penalty Phase Evidence

The prosecution presented evidence of three incidents involving defendant. In 1988, defendant had broken into a woman's mobilehome in Lemoore at night; when she awoke and confronted him, he knocked her to the floor with his fist. In 1991, he led an Emeryville police officer on a high speed chase, ran when his car crashed, lunged at the officer during his arrest and, even after being handcuffed, threatened and kicked at the arresting officers. Finally, in 1994, he rang a doorbell in Alameda at 6:15 a.m. and, when the resident did not answer, broke into the garage by smashing a door. Police had difficulty arresting him, and he was carrying a pistol. The prosecution also presented evidence defendant had previously been convicted of residential burglary and auto theft.

Defendant presented no penalty phase evidence. Analysis

I. Procedures for Determining Competence to Stand Trial

Defendant contends the procedures by which the trial court found him competent to stand trial were constitutionally deficient in several respects. We find no error in the procedures employed.

The question of competence to stand trial was first raised in pretrial proceedings, after defendant's first request to represent himself was denied.*fn2 In explaining its finding that defendant was not competent to represent himself, the trial court (Judge McCarville) observed: "[W]hile the record, the written record, may reflect [defendant] has given articulate responses [to the court's questions regarding self-representation,] the court will note by his own facial expressions and by certain time delays from the time questions were posed by the court and his responses, and what I will call quizzical looks on his face, while he appeared to give intelligent responses, the court finds that it is not, in fact, the case."

Defense counsel then made "a 1368 motion based on some of the court's comments."*fn3 The trial court responded that its comments had been aimed only at the question of self-representation, but because counsel sought a determination of trial competence, the court suspended the criminal proceedings and ordered the appointment of two psychologists to examine defendant.

On the form letter of appointment, the court clerk correctly informed the psychologists they were to examine defendant and report on his "present mental competence pursuant to P.C. 1368." Boxes were checked on the form for that statute and for three subsidiary determinations to be made: "Is the defendant presently able to understand the nature and purpose of the proceedings taken against him?" "Is he presently able to cooperate in a rational manner with counsel in presenting a defense?" and "Is he presently able to prepare and conduct his own defense in a rational manner without counsel?" In addition, although defendant had not entered a plea of not guilty by reason of insanity, the letter stated the examination was also under "section 1026 of the Penal Code," which sets out the procedures for trying such a plea, and two question boxes relating to insanity were checked: "Was the defendant sane at the time of the commission of the alleged offense?" and "Has the defendant `fully recovered his sanity' . . . ?"

The appointed psychologists, Michael Kania and Christopher Flach, each examined defendant and submitted a written report. Kania, who interviewed defendant but administered no tests, concentrated his report on competence questions. He found defendant was "able to accurately perceive events occurring around him, with no evidence of significant distortions due to severe psychopathology." Defendant's "cognitive functioning is intact. Attention, concentration and comprehension are good. The defendant appears to be of average intellectual ability. . . . [¶] Diagnostically, the defendant does not appear to suffer from any severe psychological disorder at the present time. There are some features of a personality disorder, and there is also a history of cocaine abuse." Defendant knew the charges against him and the roles played by his attorney, the district attorney, the court and the jury. Kania concluded defendant understood the nature and purpose of the proceedings, was able to cooperate in a rational manner with counsel (though he expressed dissatisfaction with his current attorney), and would be able to conduct his own defense in a rational manner. Defendant was "trial competent."

Flach administered several tests, including two intelligence tests, and also interviewed defendant. He described his appointment as for a "1368 PC evaluation," but also purported to ascertain defendant's mental state "to aid in diagnosis, treatment, and placement planning." He found defendant knew he faced a murder charge and could be sentenced to death, and knew the roles of the prosecutor, the judge and the defense counsel, though he distrusted his current attorney and had difficulty understanding his point of view. Flach found "no acute psychotic thought disorders" from his examination, but found defendant seemed "somewhat grandiose at times," particularly as to courtroom "strategies," and presented with "an exaggerated degree of self- importance" and entitlement, displaying a "rather narcissistic perspective." Defendant had "inflated ideas about his own accomplishments" and an "almost . . . delusional conviction regarding the nature of his insight." He "seems to believe that his needs are special, particularly within the courtroom situation. In part, this may explain his reason for doubting his own attorney or even trying to represent himself." Flach observed these personality traits could be related to defendant's "long history of cocaine dependence."

With regard to intellectual functioning, defendant's test results were in the "borderline range" (including a 75 verbal IQ score on the Weschler Adult Intelligence Scale - Revised). In general, Flach found defendant's abilities borderline in understanding of the world, vocabulary and memory, and low average in math skills. Overall defendant had "low average to borderline intelligence, with severe deficits noted in common sense reasoning and abstract thinking abilities." These deficits, which "would [a]ffect his ability to effectively interact with others at times" and to understand abstract problems, were "consistent" with defendant's history of substance abuse. Flach concluded defendant understood the nature and purpose of the proceedings, but "may have difficulty in rationally cooperating with coun[sel], due to his tendency to become somewhat defensive and distrusting." Because of his low average to borderline intellectual functioning, defendant "would have some difficulty in representing himself without an attorney." Addressing the insanity-related questions checked on the form letter of appointment, Flach observed that defendant appeared to be aware of the wrongful conduct he had admitted (breaking into an Oakland garage), but that his thinking at the time may have been affected by substance use, and that defendant had not "fully recovered" his sanity, in that the possibility of drug use made him a continuing danger to himself and others.

After receiving the psychologists' reports, the trial court held a hearing to try the competence issue. Defendant waived his right to a jury trial on the question, and both parties submitted the question to the court without further evidence or argument. The court, "based upon review of the reports," found defendant competent to stand trial and assigned the case to a trial department.

Neither the federal Constitution nor our statutes allow a person to be tried criminally while mentally incompetent. (Pate v. Robinson (1966) 383 U.S. 375, 378; § 1367, subd. (a).) The constitutional test is whether the defendant " `has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.' " (Dusky v. United States (1960) 362 U.S. 402 (per curiam).) Our statutes similarly forbid prosecution while the defendant, "as a result of mental disorder or developmental disability, . . . is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner." (§ 1367, subd. (a).)

The federal Constitution further demands that "state procedures . . . be adequate to protect this right." (Pate v. Robinson, supra, 383 U.S. at p. 378; accord, Drope v. Missouri (1975) 420 U.S. 162, 172.) Our statutes provide for suspension of criminal proceedings when a doubt as to the defendant's competence arises in the trial judge's mind or when counsel informs the court of counsel's belief the defendant may be incompetent (§ 1368); the appointment of psychologists or psychiatrists to examine the defendant (§ 1369, subd. (a)); and trial of the issue to a jury or to the court (id., subds. (b)-(f)). The defense may waive a jury trial and may even, as here, submit the issue to the court on the written reports of psychologists or psychiatrists. (People v. Lawley (2002) 27 Cal.4th 102, 131-132; People v. McPeters (1992) 2 Cal.4th 1148, 1169.)

Defendant contends the procedures the trial court employed for determining his competence to stand trial were constitutionally inadequate, first, in that the court failed to pose the proper questions for the two psychologists. According to defendant, this resulted in "the failure of one of the experts [Flach] to address the competency question at all." At the least, defendant argues, the resulting flaws in Flach's report required live testimony to be taken at the competence hearing.

The record does not support this contention. The court's form letter of appointment requested evaluation of defendant's "present mental competence pursuant to P.C. 1368," and a series of more specific questions aimed at that issue were checked on the form. That the letter also referred inappropriately to the issue of sanity, and two questions regarding that issue were also checked, does not establish any constitutionally significant error. Similarly, the record shows Flach's report did address the competence questions, though he refrained from giving a definitive opinion on the final issue. That he also discussed defendant's mental status more broadly and briefly addressed the checked insanity questions did not render his report ambiguous or misleading. Flach's superfluous conclusions therefore did not require the trial court to hold an evidentiary hearing at which the expert could be cross- examined. Defendant's cited case, Matheney v. Anderson (7th Cir. 2001) 253 F.3d 1025, in which counsel requested a competence evaluation but the trial court's examination order and the experts' reports addressed only the sanity question, yet counsel failed to seek a hearing (see id. at pp. 1029-1032, 1040-1041), is clearly inapposite.

Second, defendant contends the trial court was constitutionally obliged to hold an evidentiary hearing in order to resolve conflicts between the two psychologists' reports. On this point, we agree with the Attorney General that defendant's characterization of the conflict is exaggerated. Neither psychologist found that defendant suffered from any psychosis or other severe mental illness, and both noted defendant's history of substance abuse, which Flach found might have adversely affected defendant's intellectual functioning and personality. While Kania noted "some features of a personality disorder," Flach's more detailed description of defendant's self-image as "somewhat grandiose" with "an exaggerated degree of self-importance" and a "rather narcissistic perspective" was not inconsistent. Although defendant's intellectual functioning was assessed as average by Kania and as low average or borderline by Flach, the experts agreed he was capable of understanding the nature of the proceedings against him.

The only significant difference in the experts' conclusions with regard to trial competence was that Kania believed defendant was "able to cooperate in a rational manner with counsel," though he was dissatisfied with his lawyers, while Flach believed that because of defendant's distrustful and defensive tendencies, he might "have difficulty" cooperating rationally with counsel. Flach's conclusion was consistent with the record of proceedings to that point, which showed defendant had indeed had difficulty cooperating with counsel, partly because of distrust arising from differences over defense strategy. (See fn. 2, ante.) Notably, however, Flach did not opine that defendant's difficulties with counsel were due to mental illness. Nor did he state a conclusion defendant was unable to assist counsel in presentation of a defense or was incompetent to stand trial.*fn4

We conclude that as in People v. Lawley, supra, 27 Cal.4th at pages 130-132, where a court-appointed psychologist and one hired by the defense had reached different conclusions on the defendant's trial competence, the trial court here could, despite the differences between Kania's and Flach's reports, constitutionally undertake to resolve the competence question without holding an evidentiary hearing.*fn5 (See also People v. McPeters, supra, 2 Cal.4th at pp. 1168-1169 [submission on expert reports not an unconstitutional procedure where, though two current reports found the defendant competent, a past report by one of the experts found him incompetent].) There was no evidence before the trial court of psychosis or any severe thought disorder, and neither expert opined that defendant would be unable to assist counsel because of a mental illness. Defendant clearly had a history of conflict with his attorneys, but the court could reasonably conclude, without contradiction from either psychologist's report, that such conflicts were attributable to difficult aspects of defendant's personality rather than to a diagnosed mental illness.

Third, defendant contends the trial court was obliged to have him examined by the regional center for the developmentally disabled (see § 1369, subd. (a)) because Flach's testing showed a verbal IQ score of 75. Flach's report, however, nowhere referred to any possibility of a developmental disability. Rather, Flach concluded defendant's relatively low intelligence might be "related to his problems and history with substance dependence," and his difficulty with commonsense reasoning was "consistent with his history of substance abuse." This was not an opinion that would cause the trial court to "suspect[] the defendant is developmentally disabled" (§ 1369, subd. (a)), and no referral was therefore required.

Finally, defendant contends events during the guilt and special circumstances trial and at a hearing between the guilt and penalty phases should have led the trial court to reevaluate his trial competence before proceeding with the penalty trial. We conclude such reexamination was not required.

" `When a competency hearing has already been held and defendant has been found competent to stand trial, however, a trial court need not suspend proceedings to conduct a second competency hearing unless it "is presented with a substantial change of circumstances or with new evidence" casting a serious doubt on the validity of that finding. [Citations.]' " (People v. Kelly (1992) 1 Cal.4th 495, 542-543.) Here, there was no such new evidence or changed circumstances. During the guilt phase of trial, to be sure, defendant displayed some of the "deficits . . . in common sense reasoning and abstract thinking abilities" Flach had already noted, engaging in extensive unproductive questioning of witnesses and inarticulate arguments to the court and jury. But defendant points to nothing in his guilt phase efforts indicating he had lost the ability to understand the nature of the criminal proceedings. Defendant's attempts to defend himself at the guilt phase may have been, as he now says, "disturbingly inept," but they were not of a character to cast serious doubt on the trial court's finding that he knew what he was charged with and the nature of the trial in which he took full part. Nor did defendant's mention, at a hearing before the penalty phase began, of the possibility that he might seek a new guilt trial on the basis of his own "incompetence" as an attorney*fn6 constitute changed circumstances or new evidence that undermined the trial court's original determination he was competent to stand trial.

II. Self-representation in Capital Cases

Defendant contends that in capital cases the Sixth Amendment right to represent oneself, recognized in Faretta v. California (1975) 422 U.S. 806 (Faretta), must give way to the requirements of the Fifth and Eighth Amendments to the federal Constitution that the death penalty be imposed through a fair and reliable procedure.*fn7 He maintains the latter principle requires representation by counsel, even contrary to the defendant's choice, in all capital trials or, at a minimum, whenever the self-representing defendant's conduct of his or her trial renders it unfair. Defendant's "inept" conduct of his own defense, he further argues, made his trial fundamentally unfair.

We addressed and rejected much the same set of claims in People v. Blair (2005) 36 Cal.4th 686, 736-740, and other cases. We have explained that the autonomy interest motivating the decision in Faretta - the principle that for the state to "force a lawyer on a defendant" would impinge on " `that respect for the individual which is the lifeblood of the law' " (Faretta, supra, 422 U.S. at p. 834) - applies at a capital penalty trial as well as in a trial of guilt. (Blair, at pp. 738-740.) This is true even when self-representation at the penalty phase permits the defendant to preclude any investigation and presentation of mitigating evidence. (Id. at p. 737; see also People v. Koontz (2002) 27 Cal.4th 1041, 1073-1074; People v. Bradford (1997) 15 Cal.4th 1229, 1364-1365.) A defendant convicted of a capital crime may legitimately choose a strategy aimed at obtaining a sentence of death rather than one of life imprisonment without the possibility of parole, for some individuals may rationally prefer the former to the latter. (People v. Bloom (1989) 48 Cal.3d 1194, 1222-1223.) Moreover, a rule requiring reversal when a capital defendant chooses self-representation and presents no mitigating evidence could easily be misused by a knowledgeable defendant who wished to embed his trial with reversible error. (Id. at pp. 1227-1228.)

Nor does the likelihood or actuality of a poor performance by a defendant acting in propria persona defeat the federal self- representation right. The Faretta court explicitly recognized the probability defendants will be ill-served by waiving counsel and relying on their own "unskilled efforts," but nonetheless held the defendant's choice "must be honored." (Faretta, supra, 422 U.S. at p. 834.) "The high court, however, has adhered to the principles of Faretta even with the understanding that self-representation more often than not results in detriment to the defendant, if not outright unfairness. [Citations.] Under these circumstances, we are not free to hold that the government's interest in ensuring the fairness and integrity of defendant's trial outweighed defendant's right to self-representation." (People v. Blair, supra, 36 Cal.4th at pp. 739-740, fn. omitted.)

We conclude, therefore, that neither the fact defendant faced the death penalty nor the asserted ineptness of his defense efforts warranted denying or revoking his in propria persona status. We address in the next part the more difficult question of whether self- representation should have been denied or revoked on the ground defendant was mentally incompetent to represent himself.

III. Defendant's Mental Competence to Represent Himself

In its recent decision in Indiana v. Edwards (2008) ___ U.S. ___ [128 S.Ct. 2379] (Edwards), the United States Supreme Court held the federal Constitution does not prohibit state courts from denying self- representation to defendants who are competent to stand trial with an attorney, i.e., trial competent, but who lack the mental health or capacity to conduct their own defense at trial. (See id. at pp. ___, ___ [128 S.Ct. at pp. 2385-2386, 2388].) Relying principally on this decision, defendant contends he was incompetent to represent himself, and the trial court, acting under the mistaken belief his request to represent himself could not be denied once he had been found trial competent, erred in failing to exercise its discretion to deny self- representation on grounds of mental incompetence.

After setting out the record facts relevant to defendant's claim he should have been denied self-representation on grounds of mental incompetence, we review the history of the competence question in federal and California courts. For reasons we explain, we conclude the trial court did not err in granting defendant's request to represent himself. While Edwards makes clear states may set a higher or different competence standard for self-representation than for trial with counsel, California had not done so at the time of defendant's trial. In the absence of a separate California test of mental competence for self-representation, the trial court had no higher or different standard to apply to the question. In that circumstance, the court did not err in relying on federal and state case law equating competence for self- representation with competence to stand trial.

A. Facts Relevant to the Issue

We review the procedural facts surrounding defendant's self- representation and the aspects of his behavior at trial on which he now relies to show the trial court should have found him mentally incompetent to present his own defense.

Pretrial Procedure

As we have already noted, defendant had pretrial disagreements with his appointed attorneys, which led to several motions to substitute counsel, one of which, in February 1995, was granted. On January 5, 1996, defendant complained, as he had of his previous lawyers, that new counsel and he did not "see eye to eye" on strategy. Pressed to be more specific, defendant responded only that "I don't agree with" counsel, that it was nothing personal, but "I don't feel he's presenting a good enough defense for me." Denying the request for co-counsel status or new counsel, the trial court considered defendant's alternative request for self-representation.

The court (Judge McCarville) examined defendant on his understanding of the disadvantages and obstacles he would face representing himself. In answer to the court's questions, defendant said he had a high school diploma and could read and write. When the court explained that the prosecutor would not be lenient if defendant represented himself, defendant responded: "He's not supposed to. He's my enemy." Asked what legal training he had, if any, defendant answered: "I think I can think and reason logically, common sense. So I'd use my best judgment when I defend myself." Asked why he wanted to represent himself, he replied: "I feel that I'll do a good job and I'm not about playing games."

The court denied defendant's Faretta motion on the ground he "does not have the ability to proceed pro per as his own counsel in this case." In denying the motion the court made comments that prompted counsel to seek a competence examination. The court stated that while some of defendant's responses in the colloquy appeared "articulate" and "intelligent," defendant's "quizzical looks" and delays in answering suggested otherwise. Based on its observations and defendant's responses, the court had "very serious doubts that Mr. Taylor has even any part of an ability to represent himself in this particular case in a way that would comport with due process and justice."

As noted in part I., ante, the psychologists subsequently appointed to examine defendant regarding his competence to stand trial were also asked whether he was "presently able to prepare and conduct his own defense in a rational manner without counsel." Kania, who found defendant's "cognitive functioning is intact" and defendant to be of "average intellectual ability," opined defendant "would be able to conduct his own defense in a rational manner." Flach, who found defendant was of "low average to borderline intelligence, with severe deficits noted in common sense reasoning and abstract thinking abilities," opined defendant "would have some difficulty in representing himself without an attorney."

On February 5, 1996, after the court found defendant competent to stand trial, defendant renewed his January 5 self-representation request, but Judge McCarville stated he had already addressed that issue and transferred the case to Judge Edwards's department for trial. Later the same day, before Judge Edwards, defendant again asked to represent himself. The court noted Judge McCarville had just denied that motion and advised defendant the court would reconsider it only if there were a change of circumstances. But on February 26, 1996, at the outset of jury selection, defendant again renewed his request and the court scheduled a hearing on it for the next day.

On February 27, the court extensively described to defendant the difficulties and risks of attempting to defend himself in a capital case. Defendant said he "underst[ood] clearly" and had no questions. Asked why he wanted to represent himself, he said, of his attorneys, that "there are things they haven't done" and "we've been having a conflict verbally." Defendant stated he would like to have advisory counsel, but wished to represent himself even if advisory counsel was not appointed.

The court noted: "I think, as I understand the law, Mr. Taylor has been found competent to stand trial, and that is the test that the court must follow in deciding whether he is competent to waive counsel." Having also reviewed the transcript of defendant's previous Faretta hearing before Judge McCarville, the court found defendant was "knowingly, intelligently, and voluntarily" waiving counsel, and on that basis granted the motion for ...


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