Shortly before one o'clock on the afternoon of Saturday, October 8, 1977, guests began to leave a bar mitzvah at the Brith Sholom Kneseth Israel Congregation in Richmond Heights, outside St. Louis, and walk toward their cars. About a hundred yards away, a rifle lay across two ten-inch nails that Joseph Paul Franklin had hammered into a telephone pole to steady it. He fired five times. Gerald Gordon, a forty-two-year-old father of three, was hit in the left side of the chest and bled to death from the damage to his lung, stomach and spleen. One man was grazed on the shoulder; another was hit in the left hand and later lost his little finger. Franklin had bought a bicycle for his escape and tried it out beforehand, and he got away. A Missouri jury eventually convicted him of Gordon's murder, and the death sentence it returned was the one the state carried out on November 20, 2013.
No court ever tried the whole of what Franklin did. He was prosecuted piece by piece, by the United States and by three states, each for its own crime, and these five opinions are the appellate record of four of those prosecutions. In 1983 the Tenth Circuit upheld his federal conviction for violating the civil rights of David Martin and Theodore Fields, two Black men shot dead on the night of August 20, 1980, as they left Liberty Park in Salt Lake City with two white women they had been jogging with. The government's case rested on witnesses who saw a dark Camaro in the park, on two fellow inmates of the county jail who said he had described the shootings to them, and on a telephone call he made to his former wife from the police station in Tampa after his arrest, in which he asked whether she had heard about the two joggers in Salt Lake and told her he had done it. In 1987 the Supreme Court of Utah held that the state could try him for the same two deaths as murders after the federal verdict, because Utah and the United States are separate sovereigns. Between those rulings, in 1986, the Supreme Court of Tennessee reinstated his conviction for dynamiting the Beth Shalom Synagogue in Chattanooga on July 29, 1977. The building was empty when it went up. Franklin confessed to the bombing in February 1984 while serving four consecutive life sentences at the federal penitentiary in Marion, Illinois, and told investigators he had meant it to go off during an evening service.
The two Missouri opinions close the record. In 1998 Franklin told the Supreme Court of Missouri in writing that he did not want an appeal and asked it to set an execution date. The court dismissed the appeal his lawyers had filed and then carried out the proportionality review that state law required whether he wanted it or not, and it affirmed the sentence. Two years later it affirmed the denial of his motion for post-conviction relief. By the time of his execution he had been convicted of seven murders besides Gordon's, and the Missouri case was the only one to end in a death sentence. The Tennessee opinion records in passing that his 1984 confession specifically denied any part in the 1978 shooting of Larry Flynt, the publisher of Hustler. Franklin was put to death at Bonne Terre with a single dose of pentobarbital, Missouri's first execution in nearly three years, and he made no final statement.
Each of these opinions is a court's account of one prosecution, and none of them makes findings about the crimes the others dealt with. The Tenth Circuit and the Utah court describe the Liberty Park shootings, the Tennessee court a bombing in which nobody was hurt, and the Missouri court the synagogue murder, the second time only through the claims of ineffective counsel that the lower court had turned down without a hearing. There is one plain contradiction between them. The 1998 Missouri opinion describes the Chattanooga convictions as "federal offenses," but the Tennessee opinion printed here shows a state prosecution, brought by a Hamilton County grand jury under the Tennessee Code. That 1998 opinion is also captioned simply "Joseph Franklin," without the middle name, which is why searches for him under his full name tend to miss it, and the Tennessee caption adds the name he was born with, James Clayton Vaughan.
The men Franklin killed are named as the courts named them, and so are the police officers, lawyers, judges and the psychiatrists who examined him, among them Dr. Dorothy Lewis, the defense psychiatrist in Missouri. The private people who gave evidence are not. His former wife, who took the call from Tampa, is A.C. The two inmates who said he had talked to them about the shootings share initials, so they appear as Richard H. and Robert H. The Salt Lake residents who saw the Camaro are S.M., G.S. and J.F., the lifeguard he called out to near the park a day or two before the killings is L.J., and M.F. is the woman who testified about an evening she spent with him shortly before. A.M. and C.E. are the Black man and white woman who told the federal jury about being followed and sprayed with mace near Washington in 1976, evidence the Tenth Circuit held was properly admitted. The two men who survived the Richmond Heights shooting are S.G. and W.A.
All five opinions are public records, the work of courts, and anyone may quote or reproduce them in full. The text is the Caselaw Access Project's digital edition of the printed reporters. It was typeset rather than scanned, so there is no page image behind it to misread, but it keeps the reporters' own small faults, and we have left them as printed: a stray hyphen in "After scouting -numerous synagogues" in the 2000 Missouri opinion, and the character _ where a period belongs at the end of the Utah court's quotation of the Fifth Amendment ("life or limb_") and in the Tennessee court's quotation from another case. We did close up eleven words that the printer had broken across two lines, and only where the whole word appears elsewhere in the opinions. The opinions run in the order they were decided, the 1998 Missouri ruling ahead of the 2000 one, with the footnotes after each.
UNITED STATES of America, Plaintiff-Appellee, v. Joseph Paul FRANKLIN, Defendant-Appellant.
No. 81-1343.
United States Court of Appeals, Tenth Circuit.
April 12, 1983.
Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, Denver, Colo., with her on the brief), for defendant-appellant.
Irving Gornstein, Atty., Washington, D.C. (Wm. Bradford Reynolds, Asst. Atty. Gen., Walter W. Barnett and Harold Levy, Attys., Dept, of Justice, Washington, D.C., with him on the brief), for plaintiff-appellee.
Before McWILLIAMS, LOGAN and SEYMOUR, Circuit Judges.
[OPINION BY SEYMOUR, Circuit Judge. type=majority]
SEYMOUR, Circuit Judge.
Joseph Paul Franklin was convicted by a jury of two counts of violating 18 U.S.C. § 245(b)(2)(B) (1976) by shooting and killing two black men who had been using a public facility. On appeal, Franklin contends that: (1) the district court erred in admitting evidence of a prior act under Fed.R.Evid. 404(b); (2) the court admitted certain testimony in violation of his Fifth and Sixth Amendment rights; (3) the court abused its discretion in allowing a Government witness to testify despite the Government’s disregard of its open-file discovery policy; (4) the court erred in denying his motion for a new trial; and (5) the evidence was insufficient to support the conviction. We affirm.
I.
FACTS
Franklin’s trial for these shootings lasted seven days and included the testimony of some eighty witnesses. We present here a summary of the evidence viewed in the light most favorable to the Government. See United States v. Blitstein, 626 F.2d 774, 776 (10th Cir.1980), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981).
On August 20, 1980, two black men, David Martin and Theodore Fields, were jogging with two white women at Liberty Park in Salt Lake City. Martin and Fields were shot and killed between 10:00 and 10:15 p.m. at the intersection of Ninth South and Fifth East as they left the park.
Franklin is 5' 11" tall. At the time of the shootings he had shoulder-length blond hair. He owned a metallic brown 1975 Camaro with extra high gloss and red pin stripes. It had chrome mag wheels, four tires of the same make with white raised letters, plaid vinyl seat covers, dual exhausts, and a spoiler.
Several witnesses described a car and driver near Liberty Park on the night of the shootings. One of the women who was jogging with Fields and Martin noticed a car that “looked like a Camaro,” slowly driving the wrong way on a one-way road through the park. She said it looked new and described it as “pretty shiny.” Rec., vol. V, at 68. S.M., who owns a Camaro himself, noticed a Camaro driving the wrong way on the park road. He followed the car as it left the park and turned into a lot. S.M. described it as newer than his own 1974 Camaro, dark maroon with red trim, mag wheels, writing on the tires, a spoiler, and a dual exhaust. He said the driver had shoulder-length hair.
G.S. and J.F., who both lived near the park, also noticed a dark Camaro with mag wheels. G.S. saw the car park in the lot between his house and the intersection where the joggers were shot, and saw a man about six feet tall get out of the car. Fifteen minutes later G.S. heard shots, saw a flash coming from the lot, and saw the victims at the intersection. He shined a light on a man in the lot who was holding what appeared to be a gun. When the shooting stopped, the man ran to the Camaro, threw a “long object” into the trunk, and drove off. Another witness saw an “orange-brown” Camaro pull out of the lot after the shooting ceased. Two others described a man wearing a baseball cap and carrying what appeared to be a rifle. Witnesses heard between five and seven shots.
The Government introduced considerable tangible and forensic evidence at trial. The police had found six cartridges near the spot where G.S. had seen someone. Ballistics tests showed that the bullets had all been fired from one rifle, a type that could fire seven shots and only eject six cartridges. The doctor who performed the autopsy on Fields and Martin testified that their wounds were consistent with seven shots being fired from the field. Tire prints found in the lot were similar to prints that would have been left by Franklin’s tires.
Several witnesses testified about Franklin’s activities in Salt Lake City in the ten days immediately before the shooting. He stayed in at least six motels, registering under assumed names and asking motel employees whether his room had ever been occupied or cleaned by blacks.
M.F. testified at length about an evening she spent with Franklin a few days before the shootings. Franklin told her that he hated blacks. She told him that she disliked two black pimps and they discussed killing them. Franklin showed her two handguns and she noticed a rifle in the closet of his motel room. While driving past Liberty Park, M.F. told Franklin that the east side of the park was predominantly white, the west side was predominantly Mexican, and the middle was where “the blacks and the pimps all hang out ... to pick up the girls.” Rec., vol. VI, at 464. Later they again discussed killing the two black pimps. M.F. warned Franklin that he would be caught. He disagreed, saying that “you follow them and you pick out the right time [and] even if it’s in a crowd you can just shoot them, and if there’s enough cars or something hiding you, ... you can get away with it.” Id. at 474.
A day or two before the murders, Franklin stopped his car and called to L.J., a lifeguard who was on her way to her job at Liberty Park. He told her that “he didn’t go around Liberty Park because there were too many niggers in Liberty Park.” Id. at 498. He said, “ ‘I’ll come and visit you in Liberty Park but I won’t go swimming because there’s niggers that swim there.’ ” Id. A day or two later, L.J. saw Franklin driving his Camaro through the park.
About 5:30 the evening of the shooting, Franklin picked up two white women who were hitchhiking near Liberty Park. He told them “that he hated to see white girls with niggers because it wasn’t right.” Id. at 552. About 9:00 that night the two women saw Franklin driving his Camaro near the intersection where Fields and Martin were shot.
Other witnesses testified about Franklin’s activities after the shootings. On September 25, Franklin was arrested in Florence, Kentucky, after a routine check erroneously indicated that his car was stolen. The police found two handguns and two rifles in his motel room. When questioned at the police station, he at first denied ever having been to Utah, then said he had been there five years before, and then conceded he had been there in August. He became nervous when the interrogating officer began to ask about a “double homicide” involving his Camaro there. The officer was called away from the room and Franklin escaped out a window. Franklin hitchhiked to Cincinnati, where he had his hair cut and dyed and bought all new clothes.
In 'late August or early September Franklin had visited his former wife, A.C., in Birmingham, Alabama, driving a brown Camaro. In late September or early October, he visited A.C. again. This time he was on foot. His hair was dyed and styled differently and he was wearing new glasses. When she failed to recognize him he laughed and said, “ ‘Well, ... if I could fool you, I could fool anyone.’ ” Rec., vol. VII, at 804-05. During their conversation, Franklin “was just talking about Salt Lake City and two joggers and all. And he said it would be funny, you know, it would be funny if I did it .... ” Id. at 804.
Franklin was arrested in Florida on October 28. He told the agent who questioned him that he had owned several weapons, particularly handguns and high-powered rifles, and that he considered himself to be an expert in their use. The agent testified:
“Mr. Franklin stated that he considered himself a racist, and he expressed a very strong dislike for the black people and for Jews. And he specifically also stated that he had no remorseful feelings at all at the deaths of these people.
“... He specifically talked about the mixing of the black and white races, and expressed with very strong emotion his disapproval of such mixing.”
Id. at 739. Franklin refused a hamburger the agent offered him because the agent could not “guarantee [him] that that hamburger [was] not cooked by a nigger.” Id. at 752. Franklin acknowledged having been in Salt Lake City from August 15 to August 22, 1980, and described four guns that he had had with him. He said that he had been to Liberty Park but had stopped going because he had seen a lot of racial mixing there. Franklin denied having been involved in the murders.
After his arrest, Franklin telephoned A.C. from the police station in Tampa. Near the beginning of the conversation he said, “ ‘Have you heard about the two joggers in Salt Lake? ... I did that.’ ” Id. at 806.
While he was in the Salt Lake County Jail awaiting trial, Franklin admitted killing the two joggers to two fellow inmates, Richard H. and Robert H. He told Richard H. “that he had gone out to a park ... and noticed that there was people out there, blacks and whites associating together, and that he had decided that he was going to do something about it.” Id. at 832. He also told Robert H. that he did not like seeing “a lot of blacks and whites together” in the park, and so drove around to find a place to park and a place “where it would be best to get a good shot at somebody.” Id. at 855-56. He threw his rifle in his trunk and drove away. Later he sold the rifle at a flea market in San Rafael, California. Robert H. recited other details of the shooting which he alleged Franklin had told him.
II.
OTHER ACT EVIDENCE
Franklin contests the introduction of evidence that he had assaulted an interracial couple in the Washington, D.C. area in September 1976. A.M., who is black, testified that he had been to a play one evening with C.E., who is white. On their way home a man drove behind their car for about fifteen minutes, finally following them into a dead end. When A.M. asked the man if he was following them, the man replied: “ ‘Following you? No one’s following you, boy. This is a free country. I can go where I want.’ ” Rec., vol. VII, at 725. The man then sprayed A.M. and C.E. with mace. A Montgomery County, Maryland police officer testified that the man, who was later identified as Franklin, told him that he thought interracial interaction was wrong.
Although the general rule is that evidence of other acts or crimes is inadmissible, such evidence may be admitted for limited purposes. See generally United States v. Burkhart, 458 F.2d 201 (10th Cir.1972) (en banc). Rule 404(b) of the Federal Rules of Evidence provides:
“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Fed.R.Evid. 404(b). A trial court has broad discretion to determine whether, under Fed. R. Evid. 403, the probative value of evidence outweighs the risk of unfair prejudice. United States v. L.J.on, 578 F.2d 863, 867 (10th Cir.), cert. denied, 439 U.S. 932, 99 S. Ct. 324, 58 L.Ed.2d 327 (1978); United States v. Nolan, 551 F.2d 266, 271 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). The trial court here allowed the Government to introduce evidence of the mace incident as probative of motive. Before admitting the evidence, the court properly heard A.M.’ testimony out of the presence of the jury. Both before A.M. testified and again in the final jury instructions, the court cautioned the jury that the testimony was offered on the question of motive only. Under the circumstances, we find no abuse of discretion.
Franklin argues that the evidence should not have been admitted to show motive because “Franklin’s racial motivation was not an issue at trial, but rather admitted throughout the trial. Instead Franklin denied participation in the acts which constitute the crime.” Brief of Appellant at 22.
Intent is an element of the offense Franklin was charged with. The statute proscribes willfully injuring “any person because of his race.” 18 U.S.C. § 245(b) (emphasis added). Thus the Government was required to prove not only that Franklin killed Fields and Martin but that he did so because of their race. Even though Franklin did not deny his racism, a racial motive was still an element of the crime that the Government had to prove. It is not necessary for “the defendant to have raised the issue of intent for it to be an issue in the case where, as in this case, the crime for which the defendant is charged requires proof of specific intent.” United States v. Engleman, 648 F.2d 473, 478-79 (8th Cir. 1981). See also United States v. Buchanan, 633 F.2d 423, 426 (5th Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 301 (1981); United States v. Williams, 577 F.2d 188, 192 (2d Cir.), cert. denied, 439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978); United States v. Adcock, 558 F.2d 397, 402 (8th Cir.), cert. denied, 434 U.S. 921, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977).
In United States v. Webb, 625 F.2d 709, 710 (5th Cir.1980), the defendant was charged with willfully damaging a helicopter as it flew over his property. His only defense was an alibi, yet the court held other act evidence admissible on the intent issue. The court stated that where intent is not inferable from the nature of the act “and the defendant fails to give enforceable pre-trial assurances that he intends not to dispute criminal intent, the Government’s ease-in-chief may include such extrinsic offense evidence as would be admissible if intent were actively contested.” Id. at 710. Franklin gave no such pre-trial assurances here.
Franklin offers two further arguments for exclusion of the prior act evidence. First, he suggests that the probative value of the mace incident was “significantly diminished by the weight of the other evidence on this issue.” Reply Brief of Appellant at 3. A.M.’ testimony was introduced on the fifth day of a six-day trial. The trial judge was in the best position to evaluate its probative value in the context of all the evidence presented. See United States v. Engleman, 648 F.2d 473, 479 (8th Cir.1981) (admission not an abuse of discretion where “[t]he evidence concerning intent and motive was not so great as to make the evidence of similar crimes cumulative”); see also Havelock v. United States, 427 F.2d 987, 990-91 (10th Cir.) (“It would be awkward to refuse evidence bearing on an. element of the crime because, through hindsight, we are able to say that it proved unnecessary in the end.”), cert. denied, 400 U.S. 946, 91 S.Ct. 252, 27 L.Ed.2d 251 (1970).
Second, Franklin argues that evidence of the mace incident should have been excluded because the incident was too remote in time from the charged offenses. The incident occurred in September 1976, almost four years before the shootings in August 1980. “[T]here is no absolute rule regarding the number of years that can separate offenses. Rather, the court applies a reasonableness standard and examines the facts and circumstances of each case.” Engleman, 648 F.2d at 479 (no abuse of discretion when district court admitted evidence of crime that defendant committed thirteen years before charged offense). See also United States v. Dudley, 562 F.2d 965 (5th Cir.1977) (within six years); United States v. Zeidman, 540 F.2d 314 (7th Cir.1976) (five years); United States v. Barash, 412 F.2d 26 (2d Cir.) (five years), cert. denied, 396 U.S. 832, 90 S.Ct. 86, 24 L.Ed.2d 82 (1969). But see United States v. Gilliland, 586 F.2d 1384 (10th Cir.1978) (prior Dyer Act convictions 14 to 34 years old insufficiently relevant to instant charge); United States v. Burkhart, 458 F.2d 201 (10th Cir.1972) (en banc) (prior Dyer Act convictions 4 and 15 years old insufficiently relevant). Under the circumstances of this case, the trial court’s determination that the evidence was relevant, probative, and not unduly prejudicial was not an abuse of discretion.
III.
ANITA COOPER’S TESTIMONY
Franklin asserts that the Government’s use of A.C.’s testimony about the telephone call he made to her the night he was arrested in Tampa violated his Fifth Amendment right against self-incrimination and his Sixth Amendment right to counsel. A.C. testified that early in the telephone conversation Franklin admitted murdering the two joggers.
A. Sixth Amendment
Franklin’s Sixth Amendment claim is based on Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). In Massiah, the Supreme Court held that a defendant’s Sixth Amendment right to counsel was violated “when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” Id. at 206, 84 S.Ct. at 1203 (emphasis added). Contrary to Franklin’s suggestion, Massiah is inapplicable here, both because Franklin’s right to counsel had not yet attached at the time of the conversation in question and because his incriminating statement was not one “which federal agents had deliberately elicited from him.” Id.
“[A] person’s Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him.” Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972). Like Kirby, and unlike Massiah, Franklin had been arrested but adversary judicial criminal proceedings against him had not yet been initiated, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.” Id. at 689, 82 S.Ct. at 1882. Thus, under the clear holding of Kirby, Franklin’s right to counsel had not yet attached when he made his incriminating remark to A.C.
Furthermore, even had Franklin’s right to counsel attached, his statement to A.C. would still be admissible because it was not deliberately elicited from him by federal agents. See United States v. Henry, 447 U.S. 264, 276, 100 S.Ct. 2183, 2189-2190, 65 L.Ed.2d 115 (1980) (Powell, J., concurring). In Henry, a government agent contacted a sometime informant housed in the same cellblock with Henry. The agent instructed the informant to be alert to any statements made by certain federal prisoners, and to pay attention to any conversation Henry initiated regarding a bank robbery. Id. at 268, 100 S.Ct. at 2185-2186 (Opinion of the Court). The informant was to be paid for any information he produced. He had several conversations with Henry, during which Henry made incriminating statements that were subsequently introduced at trial. The Court held that under those facts, “a Government agent ‘deliberately elicited’ incriminating statements from Henry within the meaning of Massiah.” Id. at 270, 274, 100 S.Ct. at 2186, 2188-2189. Foremost among the three factors the Court considered important in reaching that result was that the informant “was acting under instructions as a paid informant for the Government.” Id. at 270, 100 S.Ct. at 2187. In contrast, A.C. was neither paid nor instructed. She had been contacted by the FBI and had consented to have her phone tapped, but from the record before us it appears that, unlike the informant in Henry, she was a “passive listener.” Id. at 271, 100 S.Ct. at 2187. Franklin points out that she asked him about the events in Salt Lake City. However, she directly questioned him only in subsequent conversations; her later questions do not affect Franklin’s statement volunteered in the initial conversation.
B. Fifth Amendment
Franklin argues that his statement should not be admitted because he was not given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda applies only to “custodial police interrogation.” Id. at 439, 86 S.Ct. at 1609. Franklin was concededly “in custody” at the time because he was at a police station, guarded by officers, and under arrest. The issue then is whether his conversation with A.C. amounted to “police interrogation.”
The Supreme Court has recently expounded the meaning of “interrogation” under Miranda. See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). Although “interrogation” includes more than just express questioning, it extends “only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” Id. at 302, 100 S.Ct. at 1690 (emphasis deleted).
Drawing on his Sixth Amendment arguments that A.C. was a government agent and deliberately elicited incriminating remarks from him, Franklin urges that A.C.’s acceptance of his telephone call was the equivalent of police interrogation. Such a reading would strain the meaning of Miranda and its progeny. Franklin’s call to A.C. was simply not the “sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (holding Miranda inapplicable because defendant not “in custody”); see also Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) (not “in custody”). “[A] necessary element of compulsory self-incrimination is some kind of compulsion.” Hoffa v. United States, 385 U.S. 293, 304, 87 S.Ct. 408, 414, 17 L.Ed.2d 374 (1966). The record shows that Franklin was not compelled to make his statement to A.C.
IV.
ROBERT H.’S TESTIMONY
Franklin contends that the district court abused its discretion in permitting Robert H. to testify. Although he concedes that the Government violated no federal rule or case law in its failure to apprise defense counsel of Robert H.’s statement as soon as possible, he asserts that exclusion of Robert H.’s testimony is the only appropriate sanction for the Government’s violation of its open-file policy.
Robert H., who was then an inmate of the Salt Lake County jail, contacted the FBI on February 17, 1981, six days before Franklin’s trial began on February 23. Robert H. told an agent that he was in the same cellblock as Franklin and that Franklin had admitted shooting the two joggers in Liberty Park. The FBI agent passed on this information to the United States Attorney’s office the next day, February 18. In order to determine Robert H.’s value as a witness, the Government attorneys arranged to interview him the following day. During the interview, Robert H. revealed further information, including escape plans of Franklin. Robert H. also told the attorneys that Franklin himself had suggested that he go to the FBI with the story and then later recant it on the witness stand. The Government decided not to follow its open-file policy with respect to Robert H. Robert H.’s name was pencilled in with a question mark beside it on the witness list the Government provided the defense on Friday, February 20. The Government attorneys did not make their final decision to use Robert H. as a witness until Monday, February 23, the first day of trial, when they learned the results of a polygraph test he had been given on Friday. Robert H.’s name was then included on the Government’s formal witness list.
On the morning of the fourth day of trial, the Government gave defense counsel a copy of the FBI report dated the 18th, summarizing Robert H.’s first statement. Defense counsel moved immediately for (1) exclusion of Robert H.’s testimony; (2) a mistrial (an option Franklin opposed); or (3) a continuance to enable the defense to investigate Robert H. The trial court instead asked the Government to delay calling Robert H. as a witness until Monday. The judge reasoned that the delay would give the defense Thursday afternoon, Friday, and the weekend to do any needed investigation and preparation.
We observe initially that’“the sanctions to be imposed, if any, because of a failure to comply with a pretrial discovery order rest within the sound discretion of the trial court.” United States v. Baxter (Hernandez Cases), 492 F.2d 150, 174 (9th Cir.) (pretrial order), cert. dismissed, 414 U.S. 801, 94 S.Ct. 16, 38 L.Ed.2d 38 (1973), cert. denied, 416 U.S. 940, 94 S.Ct. 1945, 40 L.Ed.2d 292 (1974). See also United States v. Herring, 582 F.2d 535, 541 (10th Cir.1978) (open file agreement); United States v. Weatherspoon, 581 F.2d 595, 598-99 (7th Cir.1978) (witness list agreement); Hansen v. United States, 393 F.2d 763, 769 (8th Cir.) (pre-trial order), cert. denied, 393 U.S. 833, 89 S.Ct. 103, 21 L.Ed.2d 103 (1968).
Admission of testimony despite violation of discovery agreements has been upheld in similar circumstances. For example, in United States v. Smith, 496 F.2d 185 (10th Cir.1974), cert. denied, 419 U.S. 964, 95 S.Ct. 225, 42 L.Ed.2d 179 (1974), this court upheld the trial court’s admission of certain checks into evidence although copies had not been given to the defense until the first day of trial in violation of the pretrial order. The admission was not an abuse of discretion because “[t]he government showed the trial court that the relevance of the evidence had not become significant until the Friday preceding the Monday when the trial commenced.” Id. at 190. See also Weatherspoon, 581 F.2d at 599 (“Inasmuch as the Government turned over its witness list as soon as [its] witnesses had been selected, the Government cannot be charged with bad faith or intentional noncompliance with its informal discovery agreement.”).
In United States v. Baxter, 492 F.2d 150, the Government supplied defense counsel with a witness’ grand jury testimony three days after the trial began in violation of a discovery order directing provision of such information at least twenty-four hours before trial. The Ninth Circuit held that the district court did not err in allowing the witness to testify four days later in the trial because that gave the defense sufficient preparation time to meet his testimony. Id. at 173-74.
Here the defense' had Robert H.’s name on the witness list as soon as the Government decided to use his testimony. Inquiry could have begun then. Delaying his testimony until Monday gave the defense three and a half days to prepare. Defense investigators did interview Robert H. over the weekend, and the defense did not repeat its request for a continuance on Monday. Under these circumstances, the trial court did not abuse its discretion in allowing Robert H. to testify.
V.
NEW TRIAL
Franklin protests the district court’s denial of his motion for a new trial on the ground of newly discovered evidence. Franklin argued below that a new trial was warranted because on the last day of trial the defense located an inmate who would testify “that Robert H. had stated that he intended to ‘set Franklin up’ in order to acquire an early release from jail by claiming that Franklin had confessed to him.” Rec., vol. I, at 170.
We set out the standard for assessing a motion for new trial based on newly discovered evidence in United States v. Maestas, 523 F.2d 316 (10th Cir.1975).
“Before a new trial for newly discovered evidence should be granted, the defendant has the burden to show that the evidence was discovered since trial; facts from which the Court may infer reasonable diligence on the part of the movant; and that the evidence is not merely cumulative or impeaching but is material and of such a character that on a new trial such evidence would probably produce a different result.”
Id. at 320 (emphasis in original). See also United States v. Allen, 554 F.2d 398, 403 (10th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 124, 54 L.Ed.2d 97 (1977). The trial court correctly applied this test in denying Franklin’s motion. First, it determined that “the evidence discovered was found during the course of trial and verified as the trial was about to conclude. If counsel desired, he could have moved the Court to reopen the defense for one more witness prior to presenting closing arguments.” Rec., vol. I, at 184. Second, the court suggested that counsel could have gained from Franklin “basic information as to who Robert H. was.” Id. Third, the court found that
“[t]he evidence which is alleged as newly discovered does not deal with issues of whether Franklin did or did not shoot the joggers near Liberty Park, but at best might be viewed as impeaching Robert H.’s credibility .... [Franklin] has not demonstrated that even if such evidence had been available for trial, and used, that a different result would have been probable.”
Id. at 184-85. These findings are supported by the record. We find no abuse of discretion.
VI.
SUFFICIENCY OF THE EVIDENCE
Franklin argues that the evidence was insufficient to support the verdict. In particular, Franklin suggests the Government failed to establish that Fields and Martin were killed because they were or had been enjoying a public facility. We disagree. Several witnesses testified that Franklin had disapproved of the racial mixing at Liberty Park. Richard H. and Robert H. both testified that he told them he shot two black joggers “to do something about it.” Rec., vol. VII, at 832. The jury could well have inferred that he intended to deprive the victims of the opportunity to enjoy public facilities. See United States v. Johns, 615 F.2d 672 (5th Cir.1980), cert. denied, 449 U.S. 829, 101 S.Ct. 95, 66 L.Ed.2d 33 (1980); United States v. Griffin, 525 F.2d 710 (1st Cir.1975), cert. denied, 424 U.S. 945, 96 S.Ct. 1414, 47 L.Ed.2d 351 (1976). The record reflects that the Government presented sufficient evidence, as discussed above, from which the jury could find Franklin guilty.
AFFIRMED.
18 U.S.C. § 245(b) (1976) states in pertinent part: “Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with— “(2) any person because of his race, color, religion or national origin and because he is or has been— (B) participating in or enjoying any benefit service, privilege, program, facility or activity provided or administered by any State or subdivision thereof ... shall be fined not more than $1,000, or imprisoned not more than one year, or both; and if bodily injury results shall be fined not more than $10,000, or imprisoned not more than ten years, or both; and if death results shall be subject to imprisonment for any term of years or for life.”
The Government also argued at the bench conference that the evidence could be admitted as probative of identity but the court rejected that argument. On appeal the Government relies chiefly on its motive argument, although it asserts in a footnote that the evidence could have been introduced to show identity as well. Brief for the United States as Appellee at 27 n. 5. Because we hold the evidence admissible on the issue of motive, we do not reach the question whether it would have been admissible to show identity, although Franklin emphasizes this issue in his brief.
In United States v. Manafzadeh, 592 F.2d 81 (2d Cir.1979), the Second Circuit held that other act evidence should not have been admitted on the issue of intent. Id. at 87. The defense had not been that the defendant had innocently or mistakenly been involved with the bad check scheme but that he had not been involved at all. Id. at 85. Defense counsel even offered to stipulate that if the defendant had participated then he had acted with the requisite criminal intent. Id. at 87. Here, although Franklin may not have actively disputed his racism, he did not offer to stipulate that element of the crime. Franklin also relies on United States v. Powell, 587 F.2d 443, 448 (9th Cir.1978), where the court stated that “[wjhen a defendant denies participation in the act or acts which constitute the crime, intent is not a material issue for the purpose of applying Rule 404(b).” To the extent that Powell can be read to be inconsistent with our analysis, we decline to follow it.
STATE of Tennessee, Appellant, v. Joseph Paul FRANKLIN, alias James Clayton Vaughan, Appellee.
Supreme Court of Tennessee, at Knoxville.
July 21, 1986.
W.J. Michael Cody, Atty. Gen. and Reporter, Gordon W. Smith, Asst. Atty. Gen., Nashville, for appellant.
Jerry H. Summers, Hugh J. Moore, Jr., Chattanooga, for appellee.
[OPINION BY DROWOTA, Justice. type=majority]
OPINION
DROWOTA, Justice.
This case presents an unusual issue. Defendant, Joseph Paul Franklin, although represented by counsel at every stage of his prosecution, spontaneously requested and was permitted by the trial court to make a closing statement to the jury along with the arguments of his two court-appointed attorneys.
Defendant was indicted on March 7, 1984, by the Hamilton County Grand Jury on charges of malicious injury to structures with explosives, T.C.A. § 39-3-703(a) (bombing), and unauthorized possession of explosives, T.C.A. § 39-3-706. Convicted by a jury, Defendant was sentenced to 15 to 21 years for bombing and to 6 to 10 years for possession of explosives, to be served consecutively. The Court of Criminal Appeals held that Defendant had not knowingly and intelligently waived his right to the assistance of counsel and that the trial court had abused its discretion in allowing Defendant to participate in closing argument, reversing and remanding the case for a new trial. Having granted the State’s application for permission to appeal pursuant to Rule 11, T.R.A.P., we now reverse the Court of Criminal Appeals and reinstate the judgment of the trial court. From the beginning, we emphasize the exceptional nature of this case.
I.
On July 29, 1977, just before 9:00 p.m., the Beth Shalom Synagogue in Chattanooga was completely destroyed in an explosion. Explosives had been placed in the center of the building by way of a crawl space beneath it and had been detonated by an electrical extension cord that ran approximately two hundred feet from the synagogue to a nearby motel, where it had been plugged into an outside electrical socket to ignite the charge. During the investigation of the explosion, investigators noted the strong odor of exploded dynamite.
While all leads in the investigation had been pursued without success, Defendant did not become a suspect until after the Federal Bureau of Alcohol, Tobacco and Firearms (BATF) had closed the case in November, 1979. Almost five years later, the Chattanooga Police Department received information that Defendant had made statements regarding this synagogue bombing; the Department then contacted the BATF investigator previously assigned to the case. At the time, Defendant was incarcerated in the Federal Penitentiary at Marion, Illinois, which is a maximum security prison, serving four consecutive life sentences for murder. On February 29, 1984, at Marion, in the presence of a BATF agent and a Chattanooga Police Officer, Defendant, having waived his Miranda rights, voluntarily confessed to the bombing and possession of explosives for which he was convicted in this case. Defendant stated that he had intended for the explosion to be timed with an evening service when the synagogue would have had people in it. Fortunately, the service had ended early that evening and only the building was destroyed without loss of life or injuries. Defendant openly advocates racist political and religious beliefs, which apparently motivated this bombing, and has committed a number of crimes in conformity with these beliefs. While incarcerated at Marion, Defendant was on one occasion attacked and stabbed fifteen or sixteen times by other inmates; he was then isolated from the population in a special housing unit.
Proof at trial revealed that Defendant had obtained the explosives (dynamite and Tovex) by using an alias, James Clayton Vaughan, to purchase dynamite from a Chattanooga supply store in late June of 1977, and the Tovex from a Charleston, West Virginia, supplier in early July, 1977. Defendant’s fingerprints on the BATF Explosives Transaction Records of these sales were compared to Defendant’s known prints and identified by an expert. Additionally, a handwriting analysis was made of Defendant’s signature of his alias on these forms; these signatures were determined to be written by Defendant.
Trial of this case was held from July 10 to 12, 1984. Two prominent attorneys were appointed by the Court to represent the Defendant. The defense strategy was to show that Defendant had confessed to numerous crimes throughout the country to obtain a transfer from Marion, where he lived with restricted privileges because his life was threatened. The defense was highly unusual in that it informed the jury of Defendant’s political and religious beliefs, and of his prior offenses as well as of crimes to which he had only confessed but for which he had not yet been tried or convicted. The tactical problem was to get the jury to believe that Defendant was lying when he confessed to the details of the bombing in Chattanooga as part of his ulterior motive to get out of Marion. This defense was stressed on voir dire and in the opening statements of Defendant’s counsel. The prosecution strategy, also somewhat unusual, was to corroborate the confession carefully to insure the jury would find Defendant credible. Both sides recognized the unique positions in which their strategies placed them. In their opening statements, the State’s attorneys noted that this was a different type of case in which the defense would ask the jury to believe that Defendant, a well-read individual garnered the details of the bombing from various media accounts but that he didn’t actually commit the crime. The State repeatedly referred to the Defendant’s personality and radical beliefs. Further, during a subsequent jury-out conference regarding excision of portions of Defendant’s confession, the trial court noted that “[t]his is an unusual situation in that the defendant has put before the jury the fact that he has been convicted in these other cases and that he has been charged with crimes all around the country.”
Over the course of the trial, the defense questioned the State’s witnesses regarding the extent of media coverage and the details of the bombing (to demonstrate contradictions between Defendant’s confession and the actual events). The defense attempted to show that the circumstantial evidence that pointed to Defendant was insufficient without the confession, which was to be discredited by revealing Defendant’s ulterior motive and a superficial familiarity with the facts surrounding the bombing. The defense never actively contested the charge on illegal possession of explosives. Another aspect of the defense effort to discredit the confession was to show that the investigating officers led Defendant through many of the details of the bombing to establish corroboration for his confession.
At two points in the trial, Defendant chose to absent himself from the courtroom and, on the first occasion, he executed a written waiver of his right to attend his trial, authorizing his court-appointed counsel to defend him “as they see fit during [his] absence on the morning of July 11, 1984,” but reserving his right to be present during any other stage of the trial “if [he should] wish to attend.” The trial court instructed the jury that Defendant’s absence was the result of the exercise of his constitutional right to be present or absent and that his absence could not “be considered for any purpose against him, nor [could] any inference be drawn from the fact.”
The only witness called for the defense was John M. Cowart, the Lawrenceville, Georgia, police officer who had been assigned to investigate the ambush shooting of Larry Flynt, the publisher of Hustler magazine. In Defendant’s confession to this bombing in February, 1984, he specifically denied being involved in the shooting of Larry Flynt. Officer Cowart had previously spoken to Defendant, who was at Marion, in December of 1983, regarding the Flynt case. At that time, Defendant expressed his desire to be removed from Marion and stated that he would cooperate with Officer Cowart if the officer would try to help “get [him] out of here.” Defendant then confessed to the Larry Flynt shooting. In this statement to Officer Cowart, Defendant remarked, “Ill tell you I’m getting to a point now where I’d say anything just to get out of here for awhile.” Officer Cowart was also told by Defendant that he had bombed the Chattanooga synagogue and the house of an Israeli lobbyist in the Washington, D.C., area. During the direct examination of Officer Cowart by Defendant’s counsel, not only were some of the general conditions at Marion brought out, but defense counsel also specifically inquired about Defendant’s stabbing incident, asking whether they had discussed an alleged attempt by Defendant’s attackers to assault him sexually. At this point in the examination, Defendant reacted, denying that any such attempt had been made. The terse exchange between Defendant and his counsel is preserved on the record; defense counsel withdrew the question when Defendant adamantly denied it. The Defendant himself did not testify on his own behalf.
The following day, July 12, 1984, closing arguments were made, first by the State, which emphasized Defendant’s political and religious beliefs as his motive and the corroboration of the confession, asking the jury to find it credible. Next, Defendant’s counsel reminded the jury that Defendant was not on trial for his beliefs and that Defendant deserved a fair trial only for the crimes charged. The defense continued its strategy of attempting to show that Defendant confessed to the bombing as a part of his scheme to obtain a transfer from Marion. During a brief jury-out conference following the closing argument of one of Defendant’s attorneys, the trial court stated to Defendant’s counsel that it had “come to [his] attention that [Defendant] would like to make a closing statement to the jury.” Over defense counsel’s objections, the trial court ruled that Defendant had the right to make such a statement and that Defendant would be “representing himself before the jury....” When the jury returned, the trial court gave the following instruction:
“THE COURT: Members of the jury, Mr. Franklin has requested that he be allowed to represent himself as far as a closing statement to the jury. I caution you that his statement is a statement. It is not testimony. It is not sworn testimony. He is merely acting as his own attorney, which he has the right to do, in making a closing statement to you. It is not evidence.”
Defendant then began his statement, remarking to the jury that it was unrehearsed and that he had “just recently decided to make this statement, within the hour.” After a preliminary comment regarding the stabbing incident at Marion, Defendant stated to the jury, “I want to make your job a little easier here, as far as your deliberations go. You know, I admit to you I bombed the synagogue. You know, I did it. You know, and I’ll tell it to anybody around. It was a synagogue of Satan.” His argument continued, explaining why he planted the bomb and basing his position on his interpretation of the Bible, particularly quoting the Book of Revelations. He expounded on the Jewish conspiracy in which he believes, claiming that “[t]hey control the American Government. They control the news media. Control all different branches of the U.S. Government. The communist nations are all controlled by Jews, and all the western democracies are controlled by Jews.” According to Defendant, the “Kahzar Jews” (as he refers to them) “are trying to destroy [the white race] through race mixing and through communism.” Apparently, Defendant took this opportunity to speak not only to offer his theory of a Jewish conspiracy to justify his acts but to conclude with an appeal “for everybody to— the only way that the white race can be saved now and get out of the trouble that they’re in today, is for everybody to fast and get on their knees and praise the Lord. And I just hope that everybody here does that and accepts Jesus Christ as their personal savior.”
Following the Defendant’s closing statement, the other defense counsel, Jerry Summers, made his closing argument. Mr. Summers stressed that, given Defendant’s beliefs, affording Defendant a fair trial was of paramount importance; he asked that the jury “put aside any feelings that [they] have in regard to whether [they] agree[d] or disagree[d] with him ... and ... make [the] decision on the facts of this case.” He continued: “I don’t think you’re ever [going to] see any two lawyers in the position probably ... where really we’re asking you to not believe our client and the D.A.’s asking you to believe him.” He argued that absent Defendant’s confession, he would never have been a suspect in the bombing, and that, given his already substantial prison sentences, Defendant had nothing to lose in confessing; thus, understanding Defendant’s ulterior motive for the confession was crucial to determining the credibility of the confession. Mr. Summers also noted that Defendant had used the trial as a forum to express his political and religious views, which was part of what Defendant wanted from his trial. After Mr. Summers finished but before the District Attorney gave his final argument, the Defendant left the courtroom for the second time at his own request.
In the State’s final argument, the District Attorney stated that he had “thought [this] would be kind of a low-key trial, and [he] apologize[d] for misinterpreting what actually became quite dramatic.” Continuing, he argued that Defendant did indeed want to use the trial as an opportunity to publicize his political and religious beliefs. Nevertheless, after arguing the evidence, the District Attorney then emphasized that, despite Defendant’s desire to get out of Marion, the State had not promised him anything at any time to obtain his confession. Remarking that Defendant was a credible person, he added that “[t]he motive for being here in this trial is the same motive for the explosion of the syna-gogue_ He wants attention for his attitudes and his feelings, his warped, demented thinking about races of people.”
At the hearing on the motion for a new trial, defense counsel argued that Defendant acted against their advice in making the statement to the jury and that the trial court had erred in permitting him to act as his own counsel. Counsel for Defendant stated that “in this situation ... Mr. Franklin had never until at that point of the trial ... requested that he be allowed to serve as his own counsel.” The trial court, in denying the motion for a new trial, stressed the circumstances of this trial, stating that:
“As you said, this is a novel situation. This is where a defendant insisted and the Court allowed him to be his own attorney. And the reason the contrary is not true is that the defendant has a constitutional right to be his own lawyer. So if you give him that right then it’s not error then for — I don’t see how the Court can be in error if he allows him to be his own attorney. All I’m doing is allowing him to exercise his constitutional right to be his own lawyer. I cannot force an attorney upon him. I do have a right I guess to protect a defendant from himself. But when you observe the defendant and you realize the defendant is doing what he wants to do, that the defendant is sane, that the defendant is making a knowing decision on his part, then I have no right really to cut off his constitutional right. And having observed Mr. Franklin several days in the course of the trial, I realized that he was capable of representing himself. He was conducting the trial the way he wanted the trial to be conducted. And, of course, it’s obvious that he did not agree with the line of defense that his attorneys were setting out. But I think he had that right to get up and argue the case the way he wanted to.”
The trial court went on to clarify that the only apparent disagreement between Defendant and his counsel had involved the question to Officer Cowart suggesting a sexual assault on Defendant while he was at Marion. The court then articulated several of his observations regarding Defendant’s conduct at trial; Defendant’s independent decisions to absent himself periodically from the courtroom; his request before trial that his manacles be removed; and his reading the Bible throughout trial without losing track of the proceedings.
From the above summary of this trial, the record as a whole demonstrates that this case was tried in an atypical manner. The trial strategies of both the defense and prosecution, Defendant’s own conduct throughout trial, and the very nature of and motivation for the crimes involved combined to create a delicate trial atmosphere.
II.
In its opinion, the Court of Criminal Appeals, relying on Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), State v. Northington, 667 S.W.2d 57 (Tenn.1984), and Rule 44(a), T.R.Crim.P., found that the trial court had not ascertained the validity of Defendant’s waiver of his right to counsel. Citing State v. Burkhart, 541 S.W.2d 365 (Tenn.1976), the Court of Criminal Appeals also observed that while a defendant has an alternative right to counsel or to elect self-representation, he has no right to both at once, unless the interests of justice require it. The Court concluded that this was not a case justifying the trial court’s decision to allow Defendant to make such a statement to the jury. That Court found that the trial court had abused its discretion in this case and that the trial court’s observations of Defendant’s conduct during the proceedings would not support its decision in this situation.
A.
One of the most fundamental responsibilities of a trial court in a criminal case is to assure that a fair trial is conducted. See, e.g., State v. Burhart, supra, at 371. Generally, the trial court, which has presided over the proceedings, is in the best position to make determinations regarding how to achieve this primary purpose, and absent some abuse of the trial court’s discretion in marshalling the trial, an appellate court should not redetermine in retrospect and on a cold record how the case could have been better tried. Cf. State v. Northington, supra, at 62 (“ ‘The existence of a constitutional pretrial waiver cannot be made to turn on an appellate court’s view as to whether, in retrospect, the defendant used relatively good judgment in representing himself at trial.’ ”) (citation omitted). Although the Court of Criminal Appeals and the trial court both analyzed the issue of this case in terms of Defendant’s right to represent himself, we are of the opinion that the controlling issue is whether the trial court abused its discretion in the circumstances of this case.
Contrary to the Court of Criminal Appeals, under Tennessee law, the question of waiver does not necessarily arise when a defendant is in fact represented by counsel at every stage of his prosecution.
“The whole thrust of Faretta is that a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Faretta does not touch upon the basic issue involved in this controversy and, therefore, affords no authority for the claimed right of a criminal defendant to have the benefit of counsel and simultaneously to represent himself.”
State v. Burkhart, supra, at 368 (emphasis in original). Defendant was represented throughout these proceedings by two competent, highly qualified and experienced attorneys. At no time did he stand alone against the State’s arsenal of attorneys unassisted by counsel for his defense. Neither Faretta v. California, supra, nor State v. Northington, supra, apply to a case in which a defendant is represented continuously by counsel. See State v. Burkhart, supra. See also, e.g., People v. Barnes, 130 Ill.App.3d 1026, 86 Ill.Dec. 268, 270, 475 N.E.2d 265, 267 (1985); People v. Rodriguez, 98 A.D.2d 961, 470 N.Y.S.2d 64, 66-67 (1983); Phillips v. State, 604 S.W.2d 904, 908 (Tex.Crim.App.1979).
Accordingly, the determinative issue is whether the trial court abused its discretion in permitting what is known as “hybrid representation” (that is, simultaneous representation by counsel and pro se). Ordinarily, a defendant must elect to act pro se or to accept representation by counsel. See McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984); State v. Northington, supra; State v. Melson, 638 S.W.2d 342 (Tenn.1982); State v. Burkhart, supra. Whether to allow hybrid representation is committed to the discretion of the trial court. “ ‘[Wjhether the court allows defendant to make a closing statement or, indeed, whether he shall be allowed to intermittently use counsel during the trial while he conducts his own defense is within the sound discretion of the trial court.’ ” State v. Burkhart, supra, at 370 (quoting State v. Whitlow, 13 Or.App. 607, 510 P.2d 1354 (1973)). See also McKaskle v. Wiggins, supra, 104 S.Ct. at 953; State v. Melson, supra, at 359; People v. Rodriguez, supra, 470 N.Y.S.2d at 66-67; People v. Hazen, 94 A.D.2d 905, 463 N.Y.S.2d 657, 660 (1983). Accord Robertson v. State, 701 S.W.2d 665, 670 (Tex.App.1985); Maynard v. Meachum, 545 F.2d 273, 277 (1st Cir.1976).
B.
This case is decided under Article I, § 9, of the Constitution of Tennessee, which provides in pertinent part “[t]hat in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel....” Prior to 1976, Tennessee cases construing this provision would have permitted the trial court’s action in this case because when a defendant demanded “the right to be heard by himself,” the court was required “at once [to] instruct him that he may make an argument or an explanation of the circumstances proved against him, but that he can state no facts not already shown to the jury.” Wilson v. State, 50 Tenn. 232, 242 (1871). See also Kizer v. State, 80 Tenn. 564 (1883); Hopkins v. State, 78 Tenn. 204 (1882). Burkhart, supra, however, reconsidered the construction of this Constitutional provision and concluded that these cases had been undermined by more recent developments in Constitutional law, finding that “the right to dual or hybrid representation is not mandatory, but permissive, and rests within the sound discretion of the trial court. The rule is based upon a compelling policy to retain in the trial judge the power to maintain an orderly administration of justice at the trial level.” 541 S.W.2d at 370. This provision of the Tennessee Constitution, therefore, does not guarantee as "of right a defendant’s participation with his counsel in the conduct of his defense in the courtroom.
While Burkhart pretermits the issue of waiver in cases of hybrid representation, placing in the trial court the discretion to permit such participation of a defendant, this discretion must be exercised sparingly and only in exceptional cases:
“It is the foremost responsibility of the trial judge in a criminal action to insure a fair, just and orderly trial. To this end he must have a reasonable amount of judicial discretion. If the interests of justice so require, the trial judge, in exceptional circumstances, may permit the defendant to participate in the trial, to include the cross-examination of witnesses and the argument of his own defense. But this discretion should be exercised sparingly and with caution and only after a judicial determination that the defendant (1) is not seeking to disrupt orderly trial procedure and (2) that the defendant has the intelligence, ability and general competence to participate in his own defense. Unsworn statements will not be permitted under any circumstances. We caution, however, that when a defendant argues in his own behalf he is limited to fair comment on the evidence and may not use argument as a guise for an unsworn statement.”
State v. Burkhart, supra, at 371-372 (emphasis added). The record in Burkhart did not support the trial court’s decision to permit defendant to participate by hybrid representation. Id., at 372. In State v. Melson, supra, this Court again emphasized that the trial court’s discretion in such cases should be exercised only in exceptional circumstances. 638 S.W.2d at 359. What constitutes exceptional circumstances cannot be defined; they must be determined on a case by case basis. Id. The trial court’s decision must be supported by the record. “The mere facts that a defendant is not seeking to disrupt the trial proceedings and that he may be intelligent do not require a trial judge to allow a defendant represented by counsel to participate. These are only threshold considerations....” Id.
In Bontempo v. Fenton, 692 F.2d 954 (3d Cir.1982), cert. denied, 460 U.S. 1055, 103 S.Ct. 1506, 75 L.Ed.2d 935 (1983), a state trial court allowed the defendant at his trial to deliver a summation to the jury along with the closing argument of his defense counsel. In his Petition for a Writ of Habeas Corpus in Federal Court, defendant contended that the trial court had deprived him of effective assistance of counsel when he was allowed to make such a statement. The Third Circuit Court of Appeals noted that defendant “was, in fact, represented before, during, and after his statement by an experienced defense attorney. ... It was defendant’s protest in the jury’s presence that he was being denied a fair trial which precipitated the trial judge’s unusual response.” Id., at 960. The record of the trial in Bontempo made it clear that defendant, although somewhat encouraged by the trial court to make the statement, made the decision to do so only after consulting with his counsel outside the presence of the judge and jury. The Third Circuit stated that “[t]his is not the case of an unrepresented defendant who is called upon to make an important decision without the benefit of expert advice.” Id., at 961. The dissent in Bontempo, however, considered the defendant’s decision to be a partial waiver of his right to counsel, requiring the samé inquiry as in a complete, pretrial waiver of counsel.
The First Circuit Court of Appeals, although analyzing a hybrid representation case as one involving a partial waiver of counsel, found that in such cases “the absence of explicit bench warnings or a colloquy on the record” regarding the validity of the partial waiver did not compel the conclusion that a partial waiver was ineffective. Maynard v. Meachum, supra, at 277. That court found that the record in hybrid representation cases need only show that the defendant’s conduct affirmatively demonstrates that he knew what he was doing under all the circumstances of the case. Id., at 277-278.
Furthermore, in People v. Hazen, supra, the trial court exercised its discretion to permit a defendant to act as co-counsel with his attorney. The concurring opinion, written by Justice Mahoney, reasoned that:
“Rather than proceeding with his defense at trial alone, defendant was allowed to join forces with his lawyer in the management and presentation of his defense. As such, defendant received all of the benefits of representation by counsel. Simply stated, he did not need to be warned of the risks associated with self-representation because he was not, in fact, proceeding in his defense at trial without counsel.”
463 N.Y.S.2d at 661 (citations omitted). The reasoning of this concurrence was subsequently and explicitly adopted in People v. Rodriguez, supra:
“While a defendant who is represented by counsel in a criminal case has no absolute right to participate, the court may, in the exercise of its discretion, permit participation by the defendant to the extent it finds it appropriate.... Under the particular circumstances of this case, we find no abuse of discretion in the permission to participate granted to defendant_ Inasmuch as defendant did not waive his constitutional right to representation and did not proceed in his defense without the assistance of counsel, an inquiry for the purpose of ensuring that the defendant’s waiver was competent, intelligent and voluntary ... was not called for....”
470 N.Y.S.2d at 66-67 (citations omitted).
In exercising its discretion in hybrid representation cases, not only must the trial court make the threshold determinations (1) that defendant is not seeking to disrupt the trial, and (2) that the defendant has the intelligence, ability and general competence to participate in his own defense, but the trial court must also ensure (3) that the circumstances are so exceptional as to justify the defendant’s request, which circumstances must be made to appear on the record, (4) that defendant has the opportunity to confer with counsel out of the presence of the jury prior to his participation, (5) that, out of the presence of the jury, the defendant is instructed that he may not state facts not in evidence, and (6) that the defendant and the jury are instructed that the defendant is acting as his own counsel and that the defendant is not giving any evidence or testimony. Even where all these factors could be present, the trial court may nevertheless decline to permit hybrid representation. We believe that only rarely will circumstances justify the exercise of this discretion, but a defendant has no absolute right to hybrid representation or to make an unsworn statement before the jury. See State v. Melson, supra; State v. Burkhart, supra. See also Robertson v. State, supra, at 670. The question of waiver does not necessarily arise in such a case, but a warning by the trial court concerning the risks of hybrid representation may be appropriate in some cases. We emphasize the case by case nature of hybrid representation situations. “It is entirely a matter of grace for a defendant to represent himself and have counsel, and such privilege should be granted by the trial court only in exceptional circumstances.” State v. Melson, supra, at 359. We agree with the dissent in Bontempo v. Fenton, supra, to this extent: “It is no argument to say that the court merely honored the [defendant’s] request. The court exists to protect the constitutional rights of those who appear before it.” 692 F.2d at 968 (citation omitted).
III.
In this case, having summarized the record of the trial heretofore, we are of the opinion that the circumstances justified the exercise of the trial court’s discretion, and we will not second-guess the decision of the trial court on this record; however, we reiterate that trial courts cannot freely exercise such discretion absent circumstances justifying such an unusual action as permitting hybrid counsel. Contrary to the trial court’s opinion below, he was not required to allow Defendant to participate as of right in his defense at trial. “Faretta does not require a trial judge to permit ‘hybrid representation’ of the type [defendant] was actually allowed.” McKaskle v. Wiggins, supra, 104 S.Ct. at 953. See also State v. Melson, supra, at 359.
Not only are the exceptional circumstances of this case evident on the record as a whole, but the trial court wisely preserved a record of its reasons for permitting Defendant to make his statement as well. While Defendant did use his trial as a forum for his political and religious beliefs, he never sought to disrupt the trial and was generally well-mannered throughout the proceedings. At no time was the trial court required to recall order to the court due to Defendant’s behavior. In denying the Defendant’s motion for a new trial, the trial court recorded the observations that led him to the conclusion that Defendant had the intelligence, ability, and general competence to participate in his defense. Although a defendant’s actual pro se trial performance itself is not relevant to determining the competency of a waiver of counsel, State v. Northington, supra, at 61, his personal conduct during trial is relevant to the judge’s determination that a defendant, in Judge Meyer’s words, “is making a knowing decision on his part” to participate in his defense.
Before Defendant gave his statement, he conferred with his counsel out of the presence of the jury. He did not take the advice of his attorneys that he should not make a closing statement, but that fact alone cannot invalidate the exercise of the trial court’s discretion. As the Supreme Court of the United States observed in McKaskle v. Wiggins, supra, “[i]f [defendant’s] closing statement to the jury had to compete with one made by counsel, it was only because [defendant] agreed in advance to that arrangement.” 104 S.Ct. at 955. Cf Rodgers v. State, 610 S.W.2d 25, 28 (Mo.App.1980) (“[Defendant] was not deprived of an opportunity to have the advice of counsel on what disposition should have been attempted in his best interest. He merely refused to accept this advice.”). The trial court did not encourage Defendant to make the statement. Defendant spontaneously requested that he be allowed to do so. A relevant factor in the trial court’s decision would in some cases be whether any disagreement over trial strategy had arisen between a defendant and counsel, but this factor will not necessarily weigh in favor of or against the exercise of the court’s discretion, since the decision must ultimately depend on the totality of the circumstances in the trial. Moreover, the defense lawyer is to assist a defendant in making his defense and to represent him before the court. The right to a defense is essentially the defendant’s, which right is protected by the right to have counsel for the defense. Here, the record shows that Defendant disagreed with his counsel on at least one occasion, but Defendant’s conduct throughout trial made it apparent, as the trial court itself noted, that he “was conducting the trial the way he wanted the trial to be conducted.” No person can be compelled.to take the advice of his attorney. Cf Faretta v. California, supra, 422 U.S. at 834, 95 S.Ct. at 2541 (“[Although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’ ”) (citations omitted); Holloway v. State, 691 S.W.2d 608, 615 (Tex.Crim.App.1984) (En banc) (right to counsel belongs to accused).
In addition, during a jury-out conference, the trial court stated on the record and in the Defendant’s presence that his statement was not testimony, that he was representing himself, and that his remarks to the jury would be considered the same as the arguments of his counsel. We would have preferred that the trial court had been more explicit in instructing the Defendant that he could not state facts not already in evidence, but this was not fatal to this case. When the jury returned, the trial court properly instructed the jury in the Defendant’s presence that his statement was not sworn testimony or to be considered as evidence and was merely the statement of the Defendant acting as his own attorney.
Most of the cases we have found in which this issue has arisen involved the unsworn statement of a defendant who did not take the stand but who used the opportunity to make a statement to state facts outside the record. Here, Defendant never made a statement of facts not already in evidence; his statement was a sermon and a political polemic, but it was certainly not evidentiary. Of all that he said the jury was already informed. Defendant’s statement, although containing his admission that he had committed the crime, did not go outside the record because his confession to the crime had already been admitted. The State was not denied the opportunity to cross-examine Defendant on any testimony or evidence not previously revealed. Whether the jury believed Defendant’s confession was a matter for them to resolve. Moreover, his admission in court could not have undermined the defense strategy since that strategy was that Defendant willingly confessed to this and a number of other crimes to obtain a transfer from Marion. When one of the defense counsel gave his closing argument following Defendant’s statement, this strategy was continued uninterrupted, stressing Defendant’s ulterior motive and attempting to discredit the confession. The remainder of Defendant’s statement was not testimonial in any sense; it was more in the nature of a religious sermon and an appeal to the members of the jury to understand his perception of the urgency of resisting the Jewish conspiracy in which he believes. This may not be desirable,, but in a trial in which the Defendant’s beliefs were the motive for the crimes for which he was being tried, it was not fatal to his conviction. Finally, we note that the District Attorney in his closing argument did not improperly comment on or otherwise take advantage of the fact that Defendant had argued in his own behalf.
We cannot say that, in the circumstances of this trial and given the evidence against Defendant, the trial court abused its discretion in allowing the Defendant to make a statement to the jury. Further, even if it be considered error, it did not affect the outcome of the jury’s deliberations and was, at worst, harmless error. Rule 36, T.R.A.P.; Rule 52, T.R.Crim.P. Cf. Dukes v. State, 578 S.W.2d 659, 665 (Tenn.Crim.App.1978) (“Obviously counsel did everything possible to prevent the defendants from jeopardizing their own defense.... Although counsel now says they could not predict or plan a proper defense, no evidence is offered to show how [defendants were] prejudiced.... If the defense was prejudiced in any manner by the conduct of defendants or their choice of defense, that was a matter of their own choosing about which they now have no right to complain.”); State ex rel. Lea v. Brown, 166 Tenn. 669, 692-693, 64 S.W.2d 841, 848 (1933) (“ ‘[Appellant] participated as an actor in procuring the order which he now seeks to set aside, and took his chance.... To that end there was not only acquiescence on his part, but intelligent and efficient dealing with the matter and consent to the order. By this consent he must be deemed to have made his election and should be held to it.’ ”) (citations omitted).
Accordingly, although the trial court was incorrect that Defendant had a right to make the statement to the jury in this case, that court did not err in the circumstances of the trial in exercising his discretion to allow Defendant to make a statement to the jury. The judgment of the Court of Criminal Appeals is, therefore, reversed and that of the trial court is reinstated. The costs are taxed to the Defendant.
BROCK, C.J., and FONES, HARBISON and COOPER, JJ., concur.
Defendant has roamed the United States committing racially motivated murders in Utah, planting a bomb in the house of an Israeli lobbyist in Maryland, and robbing up to fifteen banks to support his activities. He claims to have bombed the Socialist Workers Party Headquarters in Atlanta as well. To some extent, he has been associated at various times with the American Nazi Party and the United Klans of America. Among others, he condemns communists, Jewish people, and interracial contact with blacks. He believes that a massive Jewish conspiracy grips the Federal Government.
Although we denied Defendant’s application for permission to appeal on the issue of whether the statute of limitations applied, we note that T.C.A. § 40-2-101(c) [now codified as § 40-2-101(d) ] was tolled by the facts that Defendant was not usually and publicly resident in Tennessee during the four year period of the statute, as he only intermittently visited this State following the 1977 bombing — and then often using one or more aliases, and, while he was in federal prisons since about 1980, no evidence pointed to him as the offender until he confessed in 1984. See T.C.A. § 40-2-103. See also, e.g., State v. Ansell, 36 Wash.App. 492, 675 P.2d 614 (1984); Grayer v. State, 234 Ark. 548, 353 S.W.2d 148 (1962); People v. Carman, 385 Ill. 23, 52 N.E.2d 197 (1943).
The STATE of Utah, Plaintiff and Respondent, v. Joseph Paul FRANKLIN, Defendant and Appellant.
No. 18052.
Supreme Court of Utah.
March 19, 1987.
David E. Yocom, Martin Verhoef, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Dave B. Thompson, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
[OPINION BY DURHAM, Justice: type=majority]
DURHAM, Justice:
Defendant appeals from a conviction of two counts of first degree murder under U.C.A., 1953, § 76-5-202 (Supp.1986). We affirm.
On August 20, 1980, defendant, an avowed racist, shot and killed two black men who were jogging in Liberty Park with two white women. On March 4, 1981, a jury in the United States District Court for the District of Utah convicted defendant of violating the civil rights of his victims in contravention of 18 U.S.C.A. § 245(b)(2)(B) (1969). Defendant was sentenced to two life sentences. After the federal prosecution, defendant was charged and tried by the State of Utah for two counts of first degree murder. During that trial, the prosecution called Detective Jesse Baker as a witness. Detective Baker testified that he had interviewed defendant in Florence, Kentucky, after defendant had been arrested there on suspicion of possessing a stolen vehicle. Detective Baker said that defendant appeared unperturbed by questions concerning the stolen vehicle charge, but became emotional when he was questioned about the Utah murders. During a break in the questioning, defendant escaped through a window. At trial, defendant’s counsel cross-examined Detective Baker at length and brought up two robberies in which defendant was a suspect at the time of the Kentucky arrest. Defense counsel chose to discuss the robberies in order to offer a motive, other than guilt in the Salt Lake murders, for defendant’s escape. The jury in Utah district court convicted defendant, but was unable to reach a unanimous verdict for death. The trial judge therefore sentenced defendant to two consecutive life terms to be served at the end of the federal sentences.
Defendant appeals on two grounds: he claims first that his trial in state court after his conviction in federal court violated the prohibitions against double jeopardy contained in the United States Constitution and in the Utah Constitution and Code; he also asserts that the Utah district court erred in admitting evidence concerning his flight from custody in Florence, Kentucky.
Double Jeopardy
The fifth amendment of the United States Constitution provides that no person “shall ... be subject for the same offense to be twice put in jeopardy of life or limb_” The Utah Constitution also prohibits double jeopardy. It states: “[N]or shall any person be twice put in jeopardy for the same offense.” Utah Const, art. I, § 12. U.C.A., 1953, § 77-l-6(2)(a) provides similar protection. It states: “No person shall be put twice in jeopardy for the same offense.” Common to all these provisions is the term “same offense.” Defendant argues that the murders and the federal civil rights violations should be considered the same offense for purposes of double jeopardy. He contends that because the killings and the civil rights violations arose from the same event (his shooting of two men in Liberty Park on August 20, 1980), the double jeopardy clause bars his prosecution for the separate violations of law.
The prohibition against double jeopardy protects defendant against three things: prosecution for the same offense after acquittal, prosecution for the same offense after conviction, and the infliction of multiple punishments for the same offense. State v. James, 631 P.2d 854, 856 (Utah 1981) (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)).
Neither the state nor the federal double jeopardy clause is violated when a defendant is tried for different offenses arising out of the same incident as long as each offense requires proof of a fact that the other does not and is therefore a separate legal offense. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); State v. Sosa, 598 P.2d 342, 346 (Utah 1979); see also State v. Thatcher, 108 Utah 63, 71-73, 157 P.2d 258, 261-62 (1945). For example, writing a bad check and forgery are not the same offense even if both charges are premised on the same incident, because they are not defined by the same legal elements. State v. Harris, 30 Utah 2d 354, 355-56, 517 P.2d 1313, 1314 (1974).
Each of the offenses of which defendant has been convicted requires proof of facts that the other does not. In order to establish a violation of 18 U.S.C.A. § 245(b)(2)(B) (1969), a federal prosecutor must prove that a defendant, by threat or force, willfully injured, intimidated, or interfered with another person because of the other’s race, color, or national origin and because he was enjoying a benefit, service, privilege, program, or activity provided or administrated by a state or a political subdivision of a state. In this case, the federal prosecutor proved that defendant had prevented his victims from using a city park because of their race. The state prosecutor proved that defendant violated U.C.A., 1953, § 76-5-202(l)(b) and (c) (1978) by intentionally or knowingly killing both victims at the same time or in a manner that endangered the lives of persons other than himself or his victims. Thus, the federal and state statutes under which defendant was convicted require proof of different elements and do not define the same offense. We note also that the two statutes have different purposes: the federal statute is intended to protect the rights of all citizens to enjoy the benefits of citizenship regardless of race; the Utah first degree murder statute is intended to punish those who intentionally or knowingly murder another person under certain enumerated aggravating circumstances. See Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979) (interpreting an Arkansas statute that codifies the Blockburger definition but adds a requirement that the two statutes must be intended to prevent substantially different types of harm); see also Commonwealth v. Mascaro, 260 Pa.Super. 420, 394 A.2d 998, 1000 (1978) (interpreting a Pennsylvania statute using the same language as the Arkansas statute).
Defendant’s convictions are also separate offenses because they were imposed under the laws of different sovereigns.
The dual sovereignty doctrine is founded on the common law conception of crime as an offense against the sovereignty of the government. When a defendant in a single act violates the “peace and dignity” of two sovereigns by breaking the laws of each, he has committed two distinct “offences.” United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141 [142-43], 67 L.Ed. 314 (1922). As the Court explained in Moore v. Illinois, 14 How. 13, 19, 14 L.Ed. 306 (1852), “[a]n offence, in its legal signification, means the transgression of a law.” Consequently, when the same act transgresses the laws of two sovereigns, “it cannot be truly averred that the offender has been twice punished for the same offense; but only that by one act he has committed two offenses, for each of which he is justly punishable.” Id. at 20.
Heath v. Alabama, — U.S. -, 106 S.Ct. 433, 437, 88 L.Ed.2d 387 (1985). See also United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959); Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Screws v. United States, 325 U.S. 91, 114-18, 65 S.Ct. 1031, 1041-44, 89 L.Ed. 1495 (1945) (Rutledge, J., concurring); Westfall v. United States, 274 U.S. 256, 258, 47 S.Ct. 629, 71 L.Ed. 1036 (1927).
Defendant asks us to abandon the dual sovereignty doctrine and hold that the State of Utah may not try him because he has already been tried by the federal government. Defendant offers two reasons why we should so hold: he argues that U.C.A., 1953, § 76-1-404 (1978) compels that result and that other state courts have properly chosen to curtail the right of their states to try defendants who have already been tried by another sovereign. We are not persuaded by either argument.
U.C.A., 1953, § 76-1-404 provides:
If a defendant’s conduct establishes the commission of one or more offenses within the concurrent jurisdiction of this state and of another jurisdiction, federal or state, the prosecution in the other jurisdiction is a bar to a subsequent prosecution in this state if (1) the former prosecution resulted in an acquittal, conviction, or termination of prosecution, as those terms are defined in section 76-1-403, and (2) the subsequent prosecution is for the same offense or offenses.
(Emphasis added.) As the discussion above indicates, the federal and state crimes do not constitute the same offense. Defendant cites cases from other jurisdictions in which courts have held that their statutes barred subsequent prosecutions. Those cases are all distinguishable because the statutory language they construe is broader than that contained in section 76-1-404, which uses the term “offense.” When the legislature uses a word with a well-established legal meaning, we assume that the legislature is aware of that meaning and has used the word in its proper sense. Section 76-1-403, immediately preceding the section defendant relies on here, forbids state prosecution for “offenses” arising out of “the same criminal episode.” This language, which differentiates between “offenses” in the strict Blockburger-Sosa meaning of that term and “criminal episodes,” is indicative of the legislature’s awareness of double jeopardy terminology and its intent to use that terminology precisely. It is therefore appropriate to view section 76-1-404 as a legislative codification of traditional double jeopardy interpretation. By contrast, the statutes from other jurisdictions that defendant insists are similar to section 76-1-404 do not use the term “offense,” apparently thereby deliberately intending to expand the protection against double jeopardy to bar multiple trials of a defendant for the same criminal acts or incident. We note that courts interpreting these statutes have sometimes resorted to applying “same offense” analysis despite the language of the statutes. See People v. Candelaria, 139 Cal.App.2d 432, 294 P.2d 120 (1956) (interpreting a statute forbidding subsequent prosecution of a defendant who has already been tried for the same “act or omission”); Riddle v. State, 373 P.2d 832, 835 (Okla.Crim.App.1962) (interpreting an Oklahoma statute using a “same offense” analysis to interpret the phrase “act or omission”); State v. Lo Cicero, 14 N.Y.2d 374, 200 N.E.2d 622, 624, 251 N.Y.S.2d 953, 956-57 (1964) (interpreting a statute using the phrase “act or omission” and applying “same offense” analysis); State v. West, 260 N.W.2d 215 (S.D.1977) (interpreting a statute prohibiting subsequent prosecutions founded on the same act or omission and although purporting to apply a same evidence test, using “same offense” analysis); State v. Zimmerman, 175 Mont. 179, 573 P.2d 174, 178 (1977) (interpreting a statute barring subsequent prosecutions when the second offense arose out of “the same transaction” that gave rise to the first offense for which the defendant was prosecuted); Wilson v. State, 270 Ind. 67, 383 N.E.2d 304 (1978) (interpreting a statute forbidding subsequent prosecution when the defendant has already been convicted or acquitted of “an act charged as a public offense” in another jurisdiction).
Defendant urges us to follow the lead of some state courts that have interpreted their state constitutions as barring prosecutions by the state after federal prosecutions. The Michigan and Pennsylvania courts have, for example, developed balancing tests to determine whether their state constitutions forbid subsequent prosecutions. See People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976); Commonwealth v. Mills, 447 Pa. 163, 286 A.2d 638 (1971). These courts allow prosecutions by the state only when the state’s interests have not been “sufficiently protected,” Commonwealth v. Mills, 286 A.2d at 642, or, to use the Michigan Supreme Court’s phrasing, were not “vindicated fully.” People v. Cooper, 247 N.W.2d at 871. In our view, these decisions place state judges in the dual role of a state prosecutor evaluating the interests of the state and appellate courts reviewing the adequacy of the proceedings in the federal tribunal and presumably the efficacy of the federal penal and parole systems. While we do not think our constitution necessarily must be interpreted as granting exactly the same protections as the federal constitution, we also do not believe the balancing test approach is mandated by the Utah Constitution, nor are we convinced it would provide the salutary effects anticipated. Rather, it appears likely to lead to uncertainty on the part of prosecutors and defendants, which might well result in an increase in litigation and appeals respecting the dual-sovereignty principle. We are troubled also by the transitory nature of the protection offered the individual under this balancing test approach: it exists only when the interest of the state is perceived as weak, disappearing when the state’s interest is perceived as great.
The courts of New Hampshire and Montana have been more sweeping in surrendering their states’ sovereignty. They have held that a prior federal prosecution is a complete bar to a subsequent prosecution by the state. See State v. Hogg, 118 N.H. 262, 385 A.2d 844 (1978) (holding that the double jeopardy clause of the New Hampshire Constitution bars New Hampshire from retrying a defendant who has been acquitted in a federal prosecution; the court did not extend its ruling to cases, such as that at bar, in which the federal prosecution results in a conviction); State v. LeCoure, 158 Mont. 340, 491 P.2d 1228 (1971).
We do not agree with the above-described approach because it relinquishes unnecessarily the power of the state to try and punish those who break its laws. Under the rule urged by defendant, the State of Utah would be foreclosed from legitimate prosecutions by the errors, omissions, or inadequacies of federal prosecutions and would be unable to try even a defendant who had received a federal pardon or whose conviction was reversed by a federal appellate court because of an error in the federal trial. See, e.g., State v. LeCoure, 158 Mont. 340, 491 P.2d 1228 (1971) (defendant acquitted of federal charges based on assault of F.B.I. agent because federal prosecutor did not prove agent was acting within his official capacity at time of assault and double jeopardy barred state law assault charges). We note also that the approach urged by defendant, under which the federal prosecution would be treated as if it were a Utah proceeding, would allow the federal government to destroy Utah’s right to try defendant merely by bringing defendant to trial for some minor lesser included offense. See Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Defendant asks us to contrast the benefits to the state from the dual-sovereignty doctrine, which he deems slight, with the unfairness to the individual that may result from two trials. The protection against multiple trials perceived by defendant is largely illusory. Were we to hold that Utah could not try individuals because they had been previously tried in a federal court, we still could not prevent the federal government from trying individuals after they had been tried by Utah; we would thus be surrendering state sovereignty in exchange for a more theoretical than real gain in individual rights.
Admission of Evidence Concerning Flight
Defendant complains of the trial court’s decision to admit evidence concerning his flight from custody in Florence, Kentucky. At trial, the defense made a motion in limine to exclude the testimony of Detective Baker and another Kentucky police officer. After receiving a proffer of the evidence, the trial court rejected defendant’s motion. Defendant claims that it was error to admit the evidence of flight because it was not probative and because it “required” him to elicit information on cross-examination concerning robberies in which defendant was a suspect. That information was apparently elicited in order to offer a reason for defendant’s flight other than guilt in the Salt Lake murders. The trial court gave a cautionary instruction to the jurors warning them not to give too much weight to the mere fact of flight without carefully considering other motives that may have influenced defendant.
We have previously ruled that evidence of flight is probative. See State v. Simpson, 120 Utah 596, 236 P.2d 1077 (1951); State v. Marasco, 81 Utah 325, 17 P.2d 919 (1933). Defendant insists, however, that we have ruled that flight evidence is inadmissible when the accused is in custody under two or more distinct charges. He relies on State v. Crawford, 59 Utah 39, 201 P. 1030 (1921), for that proposition. In Crawford, we reversed the defendant’s conviction because there was insufficient evidence to sustain the jury’s verdict. In the course of that opinion, we were critical of allowing evidence of flight when it was the only evidence connecting a defendant with the commission of the offense. 59 Utah at 45, 201 P. at 1033. That decision should not be read as holding that such evidence is never admissible. In our decision in State v. Bales, 675 P.2d 573 (Utah 1983), we reviewed the differing attitudes of courts toward jury instructions concerning flight and determined that when there is ample evidence to justify a flight instruction, it is not error to give one so long as it instructs the jury that there might be reasons for flight that are fully consistent with innocence of the crime charged and that even if consciousness of guilt is inferred from flight, it does not necessarily reflect actual guilt. Bales, 675 P.2d at 575. Therefore, defendant’s claim that it was error to admit evidence concerning his flight from custody in Florence must be rejected.
We note that our holding on this issue is in harmony with those of the Supreme Courts of Arizona, Kansas, and Washington. See State v. Celaya, 135 Ariz. 248, 660 P.2d 849, 857-58 (1983); State v. Walker, 226 Kan. 20, 595 P.2d 1098 (1979); State v. Piche, 71 Wash.2d 583, 430 P.2d 522, 524 (1967), cert. denied, 390 U.S. 912, 88 S.Ct. 838, 19 L.Ed.2d 882 (1968).
As to defendant’s contention that he was forced to present evidence of other crimes to supply an alternative motive for his escape, we note that defendant’s decision was merely a tactical choice and is not a proper basis for an assignment of error.
The judgment of conviction is affirmed.
HALL, C.J., STEWART, Associate C.J., and HOWE and ZIMMERMAN, JJ., concur.
STATE of Missouri, Respondent, v. Joseph FRANKLIN, Appellant.
No. 79735.
Supreme Court of Missouri, En Banc.
June 16, 1998.
Rehearing Denied July 14, 1998.
Craig A. Johnson, Asst. Public Defender, for Appellants.
Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for Respondent.
[OPINION BY LIMBAUGH, Judge. type=majority]
LIMBAUGH, Judge.
Joseph Franklin was convicted of capital murder and sentenced to death. He was also convicted of two counts of felonious assault for which he was sentenced to two concurrent terms of life imprisonment. From the record, Franklin appears to have waived his appeal both orally and in writing at the time of sentencing, but the issue is clouded somewhat by the fact that his lawyers then filed a motion for new trial and that he, himself, executed a motion for leave to file appeal in forma pauperis. Thereafter, Franklin’s lawyers filed a notice of appeal and briefed and argued the case (including the waiver issue) to this Court. After oral argument, this Court, seeking to determine whether Franklin did, in fact, wish to pursue the appeal, ordered him to respond in writing, one way or the other. Having now received Franklin’s response in which he advises unequivocally that he does not wish to appeal the case and requests this Court to set an execution date, this Court orders the appeal dismissed.
Despite the dismissal of the appeal, this Court is required to conduct a proportionality review under section 565.014, RSMo 1978. The purpose of the proportionality statute is to ensure that the sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor; that the evidence supports a statutory aggravating circumstance; and that the sentence is not excessive or disproportionate to the penalty imposed in similar cases, considering the crime and the defendant. Sec. 565.014, RSMo 1978. Although Franklin abandoned his appeal, this Court has the benefit of the record on appeal from which to review the evidence.
From that record, this Court finds no evidence that the sentence of death was imposed due to the influence of passion, prejudice, or any other arbitrary factor.
This Court also finds that the evidence supports at least two of the three statutory aggravators submitted to and found by the jury. The three aggravators include: 1) that Franklin had a substantial history of serious assaultive convictions; sec. 565.012.2(1), RSMo 1978 (repealed 1984); 2) that Franklin by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon which would normally be hazardous to the lives of more than one person; sec. 565.012.2(3), RSMo 1978 (repealed 1984); and 3) that the murder was outrageously or wantonly vile, horrible or inhuman in that it involved depravity of the mind. Sec. 565.012.2(7), RSMo 1978. Regarding the first aggravator, the record shows that before Franklin committed the murder in this case, he dynamited a synagogue in Hamilton County, Tennessee, and was convicted of the federal offenses of felonious injury to a building with explosives and felonious possession of explosives. These convictions, although based on atrocious conduct, do not constitute a substantial history of serious assaultive convictions because they do not involve assaults upon persons.
The remaining aggravating circumstances are amply supported by the evidence adduced at trial. In September of 1977, believing that Jews were “enemies of the white race,” Franklin drove to Dallas, Texas after robbing a bank in Little Rock, Arkansas. In Dallas, Franklin bought a 30-06 rifle with a telescopic sight. He then drove to St. Louis, Missouri, checked into a hotel, scouted the city for synagogues, and finally chose Brith Sholom Kneseth Israel Congregation in Richmond Heights.
To prepare for the crime, Franklin bought some ten-inch nails, a guitar case, and a bicycle. He tested the bicycle to assure himself that it could be used to enable him to leave the scene of the crime. He drove the nails into a telephone pole to serve as a rifle rest. Later, he ground the serial number off of the rifle. He then cleaned the rifle, ammunition, and guitar case of any fingerprints and, thereafter, he used gloves to handle the equipment. Lastly, he put the rifle into the guitar case and hid them both in some bushes near the synagogue.
On Saturday, October 8, 1977, Franklin waited outside the synagogue for people to emerge. Shortly before 1:00 p.m., some of the guests left the synagogue and walked toward their cars. Franklin began firing on the guests. He fired five shots from approximately one hundred yards. Gerald Gordon was shot in the left side of his chest and later died from blood loss resulting from damage to his lung, stomach, spleen, and other internal organs. S.G. was grazed on the shoulder. W.A. was wounded in the left hand and later lost his small finger on that hand. Having fired all his ammunition, Franklin abandoned the rifle and the guitar case. He then rode his bicycle to a nearby parking lot where his automobile was parked, hid the bicycle in some bushes, and left St. Louis by car.
Under these circumstances, the jury could reasonably find that Franklin knowingly created a great risk of death to more than one person in a public place with a dangerous weapon that would normally be hazardous to the lives of more than one person, and that the murder was outrageously vile, horrible or inhuman in that it involved depravity of the mind. A finding of two of the three statutory aggravating circumstances is sufficient to support an imposition of the death penalty under section 565.014, RSMo 1978. State v. LaRette, 648 S.W.2d 96, 102 (Mo. banc 1983).
Finally, this Court holds that the punishment is not excessive. To determine whether a sentence is proportionate, this Court compares similar cases where the death sentence was imposed. The sentence of death has been imposed repeatedly for murders similarly carried out pursuant to an elaborate plan. State v. Copeland, 928 S.W.2d 828 (Mo. banc 1996); State v. Leisure, 749 S.W.2d 366 (Mo. banc 1988); State v. Guinan, 665 S.W.2d 325 (Mo. banc 1984); State v. Smith, 649 S.W.2d 417 (Mo. banc 1983); State v. Blair, 638 S.W.2d 739 (Mo. banc 1982). Death sentences have also been imposed in numerous cases where the murder was an act of depravity. State v. Johnston, 957 S.W.2d 734 (Mo. banc 1997); State v. Hutchison, 957 S.W.2d 757 (Mo. banc 1997); State v. Simmons, 955 S.W.2d 729 (Mo. banc 1997); State v. Hall, 955 S.W.2d 198 (Mo.banc 1997); State v. Roberts, 948 S.W.2d 577 (Mo.banc 1997); State v. Tokar, 918 S.W.2d 753 (Mo. banc 1996). Accordingly, Franklin’s punishment is neither excessive nor disproportionate in light of the crime and the strength of the evidence against him.
The sentence of death is affirmed.
All concur.
The 1978 version of this statute controls in this case because the crime was committed in 1977; the 1994 version of this statute, section 565.035, RSMo 1994, only covers crimes occurring after October 1, 1984. Sec. 565.001, RSMo 1994.
Joseph Paul FRANKLIN, Appellant, v. STATE of Missouri, Respondent.
No. SC 81859.
Supreme Court of Missouri, En Banc.
June 27, 2000.
Rehearing Denied Aug. 29, 2000.
John K. Tucci, Asst. Public Defender, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
[OPINION BY RONNIE L. WHITE, Judge. type=majority]
RONNIE L. WHITE, Judge.
This appeal follows the overruling of Franklin’s Rule 29.15 motion. The underlying convictions were for capital murder, section 565.001, RSMo 1978 (repealed in 1984), and two counts of assault with intent to do great bodily harm with malice aforethought, section 559.180, RSMo 1969 (repealed in 1979). For his crimes, Franklin received a death sentence and two concurrent sentences for life imprisonment. This Court has jurisdiction. The judgment is affirmed.
I.
In September 1977, Franklin drove to Dallas, Texas, after robbing a bank in Little Rock, Arkansas. While in Dallas, Franklin purchased a 30.06 rifle through a classified advertisement and took the weapon to a firing range to properly adjust his telescopic sight and practice his marksmanship. After spending a week in Dallas, he drove to Oklahoma City, Oklahoma. Franklin had previously bombed a synagogue and another building and had long considered developing a plan to murder numerous Jews as they left synagogue, as he believed that African-Americans and Jews were “enemies of the white race.” He ultimately decided not to execute his plan in Oklahoma City, but instead chose St. Louis, which he believed to have a large Jewish community.
In the last week of September or the first week of October, Franklin drove to St. Louis and checked into a hotel under an assumed name. After scouting -numerous synagogues, he chose Brith Sholom Kneseth Israel Congregation in Richmond Heights. In preparation for his crime, Franklin purchased some ten-inch nails, a guitar case, and a bicycle. He then rode the bicycle to the synagogue to ensure that it could enable him to swiftly leave the scene of the crime. He then hammered two nails into a nearby telephone pole to serve as a gun rest.
Some time before the crime, Franklin ground the serial numbers off the rifle he purchased in Dallas. He thoroughly cleaned the rifle, the ammunition, and the guitar case to remove any fingerprints. At all times thereafter, he used gloves to handle this equipment. He placed the rifle in the guitar case and hid it in some bushes near the synagogue.
On October 8, 1977, Franklin lay in ambush for members of the congregation to emerge. As the guests left the synagogue shortly after 1:00 p.m., Franklin began firing upon them from approximately one hundred yards. Gerald Gordon was shot in the left side of his chest. He later died from his injuries. Both S.G. and W.A. were severely wounded during the shooting. After expending his ammunition, Franklin abandoned the rifle and guitar case in the bushes. He rode the bicycle to his car in a nearby parking lot, hid the bicycle, and fled St. Louis.
The case remained unsolved for a number of years. In 1994, while serving six consecutive life sentences at the federal penitentiary in Marion, Illinois, Franklin contacted an agent from the Federal Bureau of Investigation and requested to speak with him. During an interview with the agent, Franklin confessed to having committed the shooting upon the congregants of Brith Sholom Kneseth Israel Congregation as they departed from worship services on October 8,1977.
At trial, Franklin presented no evidence. He urged the jury during closing argument to sentence him to death. After some deliberation, the jury returned with Franklin’s death sentence. The court then imposed that sentence, along with two concurrent terms of life imprisonment for felonious assault.
At the time of his sentencing, Franklin executed a written waiver of appeal. After his advisory counsel filed a notice of appeal, Franklin sent a letter to this Court dated May 27, 1998, stating, “...I do NOT wish to appeal case No. 79735. Please set an execution date as soon as possible, either in July or August of this year.” On June 16, 1998, this Court handed down its opinion. The Court conducted an independent review of Franklin’s sentence on proportionality grounds as required by section 565.085.3, RSMo 1994, and held that Franklin’s sentence was proper.
On October 9, 1998, Franklin filed a timely pro se Rule 29.15 motion. Counsel was appointed and an amended motion was filed on January 29, 1999. The motion court issued its findings of fact and conclusions of law, which overruled Franklin’s Rule 29.15 motion without an evidentiary hearing. Franklin appeals that judgment to this Court.
II.
In his first allegation of error, Franklin asserts that he received ineffective assistance of counsel when his attorney failed to move this Court to stay his direct appeal pending a determination whether Franklin was competent to waive his direct appeal as requested in his letter to this Court. Appellate review of a motion court’s decision in a Rule 29.15 proceeding is limited to a determination of whether the findings of fact and conclusions of law made by the motion court are clearly erroneous. The motion court’s decision will be considered clearly erroneous if a full review of the record leaves the appellate court with a definite and firm impression that a mistake has been made.
Rule 29.15(g) requires an evidentiary hearing to be held if one is requested and if the files and records of the case fail to conclusively show that the movant is not entitled to relief. A movant is entitled to an evidentiary hearing if (1) he alleges facts that warrant relief, if true; (2) the allegations are not refuted by the record; and (3) the movant was prejudiced by the alleged errors. “With respect to claims related to ineffective assistance of counsel, to obtain an evidentiary hearing, the movant must allege facts, not refuted by the record, showing that counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and that movant was thereby prejudiced.”
Two months before his trial, Franklin filed a motion to waive his right to counsel and proceed to trial pro se., That day, his attorneys challenged his competency to do so. Judge Robert Campbell conducted a hearing on the issue of Franklin’s competency. Franklin was evaluated separately by two psychiatrists, one chosen by the defense, the other chosen by the court.
The psychiatrist chosen by the defense was Dr. Dorothy Lewis. Dr. Lewis testified that while Franklin did understand the proceedings against him and the consequences he may face, he was unable to assist his attorneys in his defense because he suffered from paranoid schizophrenia. She opined that his decision to reject the assistance of his counsel was the result of delusions and hallucinations associated with his schizophrenia.
Dr. S.D. Parwatikar conducted Franklin’s pretrial chapter 552 examination for the court. Dr. Parwatikar diagnosed Franklin as suffering from a paranoid personality disorder, but concluded that Franklin had excellent insight into his legal situation, that he was capable of assisting his attorneys if he wished, and that he was competent to proceed. Dr. Parwatikar did note that Franklin exhibited many examples of idiosyncratic thinking. These included his beliefs that Jews were the cause of all evil in the world, that spirit guides spoke to him and guided him in various life decisions, and that the government, media, and film industry in the United States were the “great Satan.” These idiosyncrasies, however, did not rise to the level of delusions associated with paranoid schizophrenia affecting Franklin’s competency, according to Dr. Parwatikar.
During the competency hearing, Franklin actively opposed his attorneys’ efforts to have him declared incompetent to proceed. Upon taking the stand, he admitted to having certain “neuroses” and personality disorders, but refuted the notion that he was schizophrenic. Upon questioning regarding his competence, Franklin accurately described the charges against him, the possible punishments he might receive, and the respective roles of those persons involved in the proceedings. When asked whether he was capable of assisting his attorneys, Franklin described how he informed his attorneys that he did not believe he could be prosecuted for armed criminal action because the statute was enacted after his crime. He was correct and the prosecution dropped the charges.
At the hearing’s conclusion, Judge Campbell found Franklin to be competent to proceed. The court noted that it found Dr. Parwatikar’s testimony more compelling than that of Dr. Lewis and expressed disbelief in Dr. Lewis’ diagnosis that Franklin was delusional. On direct appeal to this Court, Franklin’s attorney alleged that the trial court erred when it found Franklin competent to proceed. To support his argument, he argued that the testimony given by Dr. Lewis was more credible than that of Dr. Parwatikar. This Court dismissed that claim following Franklin’s letter waiving his appeal.
In order to prove that he was deprived of the effective assistance of counsel on appeal, Franklin must first show (1) that the actions of his appellate attorney were “outside the wide range of professionally competent assistance,” and (2) that his counsel’s errors were so severe that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (3) that counsel’s deficient performance resulted in prejudice. To support a claim of ineffectiveness regarding an attorney representing the defendant on direct appeal from his conviction, “strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized and asserted it.”
The issue of Franklin’s competency, and all the relevant evidence he cites to support his contention that he is not competent to proceed, was fully litigated before the trial court. That court found Franklin to be competent. Franklin’s attorney on direct appeal raised the issue as a claim of error before this Court. This Court dismissed that issue on direct appeal. The only evidence submitted by Franklin in support of his motion that did not come directly from the trial record is that a spirit guide instructed him to waive his direct appeal. While this particular instruction by a spirit guide may constitute new evidence, Franklin’s reliance on spirit guides was well documented in the trial record. The same or similar guides had instructed Franklin at varying times to initially confess to the shootings, to speak to the media, and to seek castration for his sins. Nonetheless, the trial court determined that he was competent to proceed. This Court gives deference to the trial court’s determination of a defendant’s competence, as the trial court may observe the defendant’s behavior first-hand. Previous instructions to Franklin by the spirit guide(s) were found insufficient to cast doubt on his competence. The instruction to waive his direct appeal is no different. As no new evidence has been presented to show that Franklin’s mental condition has changed since trial, appellate counsel can not be deemed ineffective for failing to request a reevaluation of Franklin’s competency.
III.
Franklin next alleges that his trial counsel erred when counsel refused to present evidence at trial of Franklin’s obsessive/compulsive behavior and that his confession to the crime was motivated by threats to his life that he experienced as an inmate at the federal penitentiary in Marion, Illinois. Franklin insists that he would not have waived counsel and proceeded to trial pro se if his attorney had agreed to present this evidence.
Franklin’s claims of error fail for two reasons. First, his motion to the court failed to allege facts showing that he suffered prejudice. To obtain an evidentiary hearing on claims of ineffective assistance of counsel, the movant must allege facts, not refuted by the record, showing (1) that counsel’s performance failed to conform to the degree of skill, care and diligence of a reasonably competent attorney and (2) that the movant was thereby prejudiced. To show prejudice, “the facts alleged must show a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
In his Rule 29.15 motion, Franklin’s only claim of prejudice is that he was deprived of his right to counsel. Franklin’s mere assertion that he would not have chosen to proceed pro se had counsel been willing to present certain evidence does not form the basis of a reasonable assumption that the final outcome of the trial would have been any different. A defendant who proceeds pro se is bound by the same rules as a party represented by counsel. Our courts cannot hold pro se defendants to a different standard than those represented by counsel.
Second, notwithstanding the procedural flaws in his motion, Franklin fails to allege facts that are not refuted by the record. Throughout his competency hearing, Franklin argued vigorously that he was fully competent to proceed to trial. Throughout trial, Franklin actively sought his own conviction and death sentence. Addressing Dr. Lewis’ diagnosis that he suffered from paranoid schizophrenia, Franklin noted that while he had a condition known as obsessive-compulsive disorder, it had no effect on his ability to control his actions and understand their consequences. Explaining his disorder, he said:
But people with obsessive-compulsive disorder are not psychotic and they’re not crazy. It’s just an anxiety disorder that affects about 2 percent of the population. And people with it can function just as well as anyone else. The only problems they have are with various obsessions and compulsions that make them want to wash their hands and do other, you know, unnecessary things.
Similarly, the record refutes the notion that death threats while in federal prison motivated Franklin to seek his own death sentence in Missouri. True, Franklin did suggest that that he believed certain individuals at the federal prison in Marion were trying to kill him and that he would prefer being sentenced to death in Missouri than being killed at the federal prison. However, when expressly asked during his competency hearing whether he confessed to the murder of Gerald Gordon in order to get out of the federal prison, he emphatically denied it to be his motivation. As discussed in Part II, Franklin has stated numerous times that his motivation for confessing came not from these death threats, but from a spirit guide who told him to confess and seek his own execution.
IV.
In his final points on appeal, Franklin alleges that the motion court erred because the findings of fact and conclusions of law entered by that court were fatally flawed. His specific claims include that the court entered inadequate findings regarding his appellate counsel’s failure to request a competency hearing regarding his waiver of appeal and trial counsel’s failure to present evidence of his obsessive/compulsive behavior and threats to his life while in federal prison.
Under Rule 29.15(j), a motion court is required to issue findings of fact and conclusions of law on all issues presented, without regard to whether an evidentiary hearing is held. However, the court is not required to individually address every claim brought by the movant. Generalized findings are sufficient so long as they permit the appellate court an adequate record for appellate review of movant’s claims.
Franklin’s claim of error regarding the findings entered by the. motion court is without merit. The motion court heard evidence and gave very specific findings that it found Dr. Parwatikar’s testimony more compelling than that of Dr. Lewis, concluding Franklin to be competent. The court also noted Franklin’s shrewdness during questioning by his defense attorneys trying to prove him incompetent against his wishes. Second, while the court did not specifically address the issues regarding his obsessive/compulsive disorder and the threats on his life in federal prison, we find that the court’s generalized findings were sufficient to permit adequate appellate review. Furthermore, as discussed in Parts II and III, these claims are without merit and Franklin would not be entitled to relief as a matter of law.
The remainder of Franklin’s claims involve a litany of allegations regarding the constitutionality of various aspects of his trial. Postconviction motions cannot be used as a substitute for direct appeal or to obtain further appellate review. Issues capable of being raised on direct appeal - even constitutional issues - may not be raised in postconvietion proceedings except where fundamental fairness requires otherwise and only in rare and exceptional circumstances. We find that the trial court did not err where it declined to enter specific findings concerning these claims because they were specifically raised on appeal and Franklin chose to voluntarily request dismissal of that appeal.
For the foregoing reasons, the judgment of the motion court is affirmed.
All concur.
Mo. Const. Art. V., Section 10; order of June 16, 1998 (effective July 1, 1998).
See State v. Franklin, 969 S.W.2d 743 (Mo. banc 1998).
Rule 29.15(j).
State v. Schaal, 806 S.W.2d 659, 667 (Mo. banc 1991).
State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997).
Id.
Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Id. at 687, 104 S.Ct. 2052.
Id.
Moss v. State, 10 S.W.3d 508, 514 (Mo. banc 2000). .State v. Hampton, 959 S.W.2d 444, 449-50 (Mo. banc 1997);
State v. Carter, 955 S.W.2d 548, 554 (Mo. banc 1997).
Id. (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
State v. Ellis, 949 S.W.2d 279, 280 (Mo.App.1997).
Id.
Barry v. State, 850 S.W.2d 348, 350 (Mo. banc 1993).
State v. Taylor, 929 S.W.2d 209, 223-24 (Mo. banc 1996).
Id. .White v. State, 939 S.W.2d 887, 903 (Mo. banc 1997) (holding that an appellate court shall not order remand for the motion court to enter more specific findings where the movant is clearly entitled to no relief as a matter of law).
State v. Jones, 979 S.W.2d 171, 181 (Mo. banc 1998).
State v. Tolliver, 839 S.W.2d 296, 298 (Mo. banc 1992).