136 F.3d 1197
Jessie Lee Wise, Appellant,
Michael Bowersox, Supt., Pcc,
Circuits, 8th Cir.
LOKEN, and HANSEN, Circuit Judges.
BOWMAN, Circuit Judge.
Jessie Wise was convicted of
first-degree murder and sentenced to death in a
Missouri state court. The evidence showed that
he attacked Geraldine McDonald without
provocation and beat her to death with a pipe
wrench on August 27, 1988. Over the next two
days he burglarized her home, where he had
killed her, and stole her money, her car, and
her jewelry, some of which he pawned and some of
which he traded for cocaine.
The postconviction court
denied his motion for relief. In an opinion
combining review of the issues raised in Wise's
direct appeal and the issues raised in his
postconviction motion, the Supreme Court of
Missouri unanimously affirmed his conviction and
sentence. The facts of the case are detailed in
that court's opinion, State v. Wise, 879 S.W.2d
494, 501-02 (Mo.1994) (en banc), cert. denied,
513 U.S. 1093 , 115 S.Ct. 757, 130 L.Ed.2d
656 (1995). Following his unsuccessful
appeal, Wise petitioned for a writ of habeas
corpus under 28 U.S.C. 2254 (1994).
The District Court
denied his petition without holding an
evidentiary hearing, and Wise now appeals. We
review decisions on questions of law de novo,
see Culkin v. Purkett, 45 F.3d 1229, 1232 (8th
Cir.), cert. denied,
516 U.S. 842 , 116 S.Ct. 127, 133 L.Ed.2d
76 (1995), but we presume that state-court
findings of fact, if made after a fair hearing
and supported by the record, are correct. See 28
U.S.C. 2254(d) (1994).
For the reasons that follow, we affirm the
District Court's denial of Wise's petition for
Wise first argues that the
trial court erred in permitting him to represent
himself. A criminal defendant has the right to
an attorney, but he also has the constitutional
right to waive that right and to act as his own
lawyer. See Faretta v. California, 422 U.S. 806,
807, 95 S.Ct. 2525, 2527, 45 L.Ed.2d 562 (1975).
In this case Wise chose to exercise his right to
defend himself. He represented himself in the
guilt phase of his trial, following which he was
convicted of first-degree murder, but decided to
be represented by counsel in the sentencing
phase. Now he argues that the trial court was
wrong to grant him his wish for self-representation
in the guilt phase of his trial.
Because a defendant has the
constitutional right to an attorney, if he does
not effectively waive that right, yet is put to
trial without the assistance of counsel, his
conviction and punishment violate due process.
See Faretta, 422 U.S. at 818, 95 S.Ct. at
2532-33 (holding that the Sixth Amendment right
to an attorney is part of the "due process of
law" that the Fourteenth Amendment prohibits
states from infringing).
Before a defendant may waive
the right to counsel, the trial court must
determine that he is competent to stand trial
and that he is knowingly and voluntarily waiving
his right. See Godinez v. Moran, 509 U.S. 389,
400, 113 S.Ct. 2680, 2687, 125 L.Ed.2d 321
(1993). That is all the trial court must find.
It need not find that the defendant can conduct
his defense effectively or as effectively as an
attorney. See id. at 399-400, 113 S.Ct. at
Thus, while Wise supports his
claim that he should have been denied self-representation
by pointing out that he wished to present a
patently incredible conspiracy theory as his
defense (his theory implicated the victim's
husband, the police, the prosecutors, and the
public defenders in both the murder and an
alleged plot to frame Wise for the crime), a
poor defense theory alone does not prove that a
defendant should not have been allowed to waive
the right to counsel.
A defendant may effectively waive the right to
counsel as long as the two requirements stated
in Godinez are satisfied.
Wise claims that the trial
court ruled that he could represent himself
without first inquiring into his competence to
stand trial. A defendant is competent to be
tried if he has "sufficient present ability to
consult with his lawyer with a reasonable degree
of rational understanding"
and "a rational as well as factual understanding
of the proceedings against him." Dusky v. United
States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d
824 (1960) (per curiam) (internal quotation
During pretrial proceedings
on May 11, 1990, Wise moved to represent himself.
The trial court then conducted a hearing on his
competence. In this hearing, the court
questioned Wise about his mental health, his
educational background, his legal knowledge, his
understanding of the charges against him, and
his appreciation of the risks and burdens of
At the conclusion of the
hearing, the court stated that "the Court has
had an opportunity to observe you [Wise] the
three or four times that you've been here on
various motions. And from my observation of you,
both physically and by the nature of questions
and answers that you gave ... it's my belief
that you're competent to proceed and you've made
an intelligent choice to represent yourself."
Respondent's Exhibit U at 45.
Thus the court did find that
Wise had a rational understanding of the
proceedings against him and that he therefore
was competent to be tried. The court did not
quote the Dusky standard verbatim in making its
finding, but it was not required to do so: "Trial
judges are presumed to know the law and to apply
it in making their decisions." Walton v.
Arizona, 497 U.S. 639, 653, 110 S.Ct. 3047,
3057, 111 L.Ed.2d 511 (1990). Wise has given us
no reason to doubt that this presumption held
Wise asserts that the trial
court never determined that his waiver of the
right to counsel was knowing and voluntary and,
alternatively, that the record does not support
this determination. Both assertions are
incorrect. For a defendant knowingly and
voluntarily to choose to represent himself, "he
should be made aware of the dangers and
disadvantages of self-representation, so that
the record will establish that he knows what he
is doing and his choice is made with eyes open."
Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 (internal
quotation marks omitted).
In the competency hearing,
Wise explicitly stated that "I knowingly and
intelligently waive the right to counsel."
Respondent's Exhibit U at 26. Wise also filed a
written request to waive counsel. In this
request, after acknowledging that he had the
right to an attorney and that he might receive
the death penalty, Wise concluded that "[k]nowing
all of the above, it is my knowing and voluntary
desire to waive my right to counsel and to
proceed pro se as my own attorney." Respondent's
Exhibit D1 at 223-24.
The trial court, moreover,
did not take Wise's statements at face value.
The court spoke with Wise at length about the
dangers and disadvantages of self-representation,
thus taking proper measures to ensure that
Wise's waiver was in fact knowing and voluntary.
Finally, in ruling that Wise could proceed pro
se, the court stated that it "hereby finds that
the defendant's waiver is knowingly and
intelligently made, with a full understanding of
the risks of self-representation." Respondent's
Exhibit U at 45. Thus the court did determine
that Wise knowingly and voluntarily waived the
right to counsel, and the record supports this
Accordingly, because the
trial court committed no error of law and
because its factual findings are entitled to the
presumption of correctness, a presumption Wise
has failed to rebut, we hold that the trial
court correctly permitted Wise to represent
himself in the guilt phase of the trial.
Next Wise argues that the
trial court deprived him of due process by
letting him represent himself in a second
competency hearing that was held on June 15 and
June 28, 1990. As we already have discussed, on
May 11, 1990, Wise invoked his constitutional
right to defend himself, and, after a thorough
hearing on Wise's competence, the trial court
properly permitted him to exercise that right.
Thus on June 15, 1990, Wise
already properly was representing himself. Wise
did not request the assistance of a lawyer for
the second competency hearing (in fact he
objected to the hearing altogether because he
believed that he was competent and he was ready
to start the trial), and the trial court
correctly allowed him to continue pro se.
Furthermore, although in this hearing both Wise
and the prosecutor attempted to demonstrate
Wise's competence, the contrary point of view
also was well represented.
The trial court held this
hearing at the instigation of Wise's standby
counsel, Timothy Braun, who had served as Wise's
attorney until Wise exercised his right to
represent himself, at which time the court
ordered Braun to serve as standby counsel, ready
to consult with Wise. Braun believed that Wise
was incompetent, and he attempted to show this
at the hearing. The court allowed Braun to speak
and to examine both of the experts who testified.
This hearing, like the hearing held one month
before, was a fair inquiry into Wise's
competence in which Wise was afforded due
Wise also claims that in the
June 1990 competency hearing the trial court
incorrectly found him competent to stand trial
because the court applied the wrong legal
standard for competence and because the record
does not support the finding that he was
competent. The conviction of an incompetent
person violates due process. See Pate v.
Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838,
15 L.Ed.2d 815 (1966). In this competency
hearing the trial court found that Wise had a
rational understanding of the proceedings
against him, as Dusky requires. The court found
a. Defendant was coherent and
rational at all appearances.
b. Defendant demonstrated a
knowledge and understanding of each portion of
c. Defendant demonstrated a
knowledge of the factual allegations against him.
d. Defendant demonstrated an
understanding of the roles of his attorney, the
judge and the prosecuting attorney.
e. Defendant demonstrated an
ability to consult with his attorney ...
Respondent's Exhibit D2 at
472-73. The record supports these findings. Two
of the three experts who examined Wise concluded
that he had no mental disease and that he was
competent to be tried. In addition, the judge
properly relied on his own observations of and
conversations with Wise. For these reasons,
Wise's claim must be, and is, rejected.
In another argument
concerning the June 1990 competency hearing,
Wise argues that the trial court should have
conducted that hearing ex parte because the
court knew that Braun planned to disclose
confidential information, including aspects of
Wise's conspiracy theory defense, in the hearing.
Wise contends that Ake v. Oklahoma, 470 U.S. 68,
105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), required
the court to conduct the hearing ex parte. Wise
In Ake, the Supreme Court
held that, if a defendant makes an ex parte
showing that the question of his sanity at the
time of the offense is likely to play a
significant role in the trial, he is entitled to
the assistance of a competent psychiatrist. See
id. at 82-83, 105 S.Ct. at 1095-96. Ake did not
hold that a defendant has the right to an ex
parte competency hearing. Under Missouri law,
moreover, parties have the right to
cross-examine expert witnesses in competency
hearings. See Mo.Rev.Stat. § 552.020.7 (1994).
This would be impossible were those hearings
conducted ex parte. Furthermore, the State
points out that before the June 1990 competency
hearing Wise already had disclosed much of the
allegedly confidential information at issue.
In a pretrial hearing on May
17, 1990, Wise stated in open court that he
hoped to prove in the trial that the victim's
husband committed the murder. In addition, in
1989 Wise filed two suits against the county
prosecutor, an assistant public defender, and
several police officers involved in the murder
investigation, alleging that they conspired to
violate his civil rights by framing him for the
The complaints in these suits
described much of Wise's defense theory. Wise
has not specified exactly what information he
had not already disclosed before the June 1990
competency hearing. Thus even if, contrary to
the law, a defendant were entitled to an ex
parte competency hearing where confidential
information might be disclosed, Wise has not
shown that confidential information was at stake
here. The trial court correctly did not conduct
the second competency hearing ex parte.
Wise's next argument is that
the trial court should have held yet another
competency hearing at some point later in the
proceedings (he mentions several different
occasions) when he behaved irrationally. A trial
court must hold a competency hearing, on motion
or sua sponte, "whenever evidence raises a
sufficient doubt about the accused's mental
competency to stand trial." Reynolds v. Norris,
86 F.3d 796, 800 (8th Cir.1996) (internal
quotation marks omitted). Wise contends that his
competence was cast into doubt when he made some
purportedly foolish decisions during the trial.
But bad trial tactics do not prove a defendant
incompetent. A defendant has the right to
conduct his own defense to his detriment. See
Faretta, 422 U.S. at 834, 95 S.Ct. at 2540-41.
Having reviewed the record,
we agree with the trial court, the Supreme Court
of Missouri, and the District Court that Wise's
performance during the trial was not such as to
raise a doubt about his competence. Accordingly,
the trial court did not fall into constitutional
error by failing to order a third competency
In his final argument based
on his alleged incompetence, Wise contends that
the trial court violated his right not to be a
witness against himself, guaranteed by the Fifth
and Fourteenth Amendments, by ordering him to
submit to a psychological examination by Dr.
Michael Armour in June of 1990. Dr. Armour
examined Wise to determine whether he was
competent to stand trial. He found that Wise was
competent, and the trial court relied in part on
his opinion when it found Wise competent in the
June 1990 hearing. Wise does not argue that
information he disclosed to Dr. Armour was used
against him in the trial.
More creatively, he argues
that he refrained from disclosing certain
information to Dr. Armour out of fear that it
would be used against him in the trial; that if
he had disclosed this information (including his
defense theory) then Dr. Armour would have
determined that he was incompetent; that the
trial court would have agreed with Dr. Armour's
assessment and therefore would not have allowed
him to be tried; and that, accordingly, his
exercise of his Fifth Amendment right unlawfully
worked to his detriment. This argument is
No violation of the privilege
against self-incrimination arises from a trial
court's ordering a defendant to undergo a
psychological examination if the information
gained in that examination is used solely to
determine whether the defendant is competent to
stand trial and not to show that the defendant
is guilty or that he deserves a particular
sentence. See Estelle v. Smith, 451 U.S. 454,
465, 101 S.Ct. 1866, 1874, 68 L.Ed.2d 359
Following that reasoning, we
hold that no violation of the privilege against
self-incrimination occurs where a defendant's
choice to remain silent in a psychological
examination affects the determination that he is
competent but not the determination that he is
guilty or that he merits a certain sentence.
Thus, even if we were to accept Wise's
speculative argument that had he spoken more
freely to Dr. Armour then Dr. Armour would have
found him incompetent, this would not show that
as a result of choosing to speak less freely to
Dr. Armour he was deprived of his right not to
Wise next contends that the
trial court deprived him of the right to be
confronted with the witnesses against him, in
violation of the Sixth and Fourteenth Amendments,
by limiting his cross-examination of prosecution
witness Dexter Davis. Wise wished to examine
Davis about several offenses for which Davis was
"wanted" in order to suggest that Davis was
testifying in exchange for immunity from
prosecution for those violations.
The trial court did not
permit Wise to do so. "[T]rial judges retain
wide latitude insofar as the Confrontation
Clause is concerned to impose reasonable limits
[on cross-examination attempting to show that a
prosecution witness is biased] based on concerns
about, among other things, harassment, prejudice,
confusion of the issues, the witness' safety, or
interrogation that is repetitive or only
marginally relevant." Delaware v. Van Arsdall,
475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d
The trial court did not
exceed its "wide latitude" here. A party has no
right to impeach a witness's credibility with
evidence of "wanteds" or arrests. Wise, moreover,
had no evidence that the prosecution had any
knowledge of these wanteds (which were not even
arrest warrants), much less that the prosecution
and Davis had struck some kind of deal.
Accordingly, Wise's proposed line of inquiry had
little relevance to the case but could have been
highly prejudicial. The trial court did not
abuse its discretion by restricting Wise's
cross-examination of Davis.
Wise's last three arguments
concern the sentencing phase of the trial. First
Wise contends that the trial court deprived him
of his rights under the Sixth, Eighth, and
Fourteenth Amendments by permitting the
prosecution to introduce certain evidence
related to and to make certain remarks about
Wise's prior conviction for first-degree murder.
Wise was on parole from the sentence imposed on
the prior murder conviction when he murdered
He objects to the admission
of the transcript of his guilty plea in the
earlier case because that transcript referred to
the victim as a family man and mentioned that
Wise, when still a juvenile, had been convicted
of other felonies. Wise also objects to the
prosecutor's having told the jury that Wise
received mercy in the first case and that he
therefore should receive no mercy now. In
addition, Wise complains that the jury could see
some relatives of his first victim seated in the
front row, weeping, during the sentencing phase.
In determining whether to
sentence a defendant to death, a jury may
consider the defendant's prior crimes. See
Romano v. Oklahoma, 512 U.S. 1, 3, 114 S.Ct.
2004, 2007, 129 L.Ed.2d 1 (1994) (upholding a
death sentence where, in the sentencing phase,
the prosecution had introduced evidence of the
defendant's prior murder conviction). We have
upheld a death sentence imposed by a jury that
viewed the defendant's videotaped confession to
a prior murder of an elderly couple. See Gilmore
v. Armontrout, 861 F.2d 1061, 1072-73 (8th
Cir.1988), cert. denied,
490 U.S. 1114 , 109 S.Ct. 3176, 104 L.Ed.2d
The evidence and remarks at
issue here were just as relevant as and no more
prejudicial than was that videotape. The trial
judge, moreover, properly handled the presence
of the first victim's family members: when he
saw them weeping, he declared a recess, removed
the jury from the courtroom, and had the family
members move to a location farther from the jury.
We hold that the jury's exposure to information
about Wise's prior conviction did not cause the
violation of Wise's constitutional rights.
In his penultimate contention,
Wise claims that the trial court violated his
Sixth Amendment right to counsel by denying his
attorney's request for a continuance prior to
the sentencing phase. After representing himself
in the guilt phase of his trial, Wise opted to
be represented in the sentencing phase by his
two standby attorneys. He did not make this
decision until the jury started deliberating on
his guilt at 12:05 P.M. on December 10, 1990.
One of Wise's standby lawyers
then requested that, if the jury returned its
verdict that afternoon, the trial court declare
a continuance so that he could have the entire
next day to prepare for the sentencing phase.
The court denied his request. The jury returned
its verdict of guilty at 2:15 P.M. that day.
Wise's lawyers then had until 9:00 the next
morning to prepare for the sentencing phase. Had
the continuance been granted, they would have
gained twenty-four hours.
Wise's standby attorneys had
been attending the trial, were familiar with the
case, and had known of the possibility that they
would be called upon to conduct the sentencing
phase, so there is no reason to presume that
this additional day would have made a difference
in their performance.
Accordingly, Wise bears the
burden of showing that the denial of the
continuance did negatively affect his lawyers'
performance in the sentencing phase. Cf. United
States v. Cronic, 466 U.S. 648, 658-60, 104 S.Ct.
2039, 2046-48, 80 L.Ed.2d 657 (1984) (holding
that a defendant alleging a violation of his
right to counsel must prove that his lawyers
performed ineffectively unless in the
circumstances of the case "the likelihood that
any lawyer, even a fully competent one, could
provide effective assistance is so small that a
presumption of prejudice is appropriate without
inquiry into the actual conduct of the trial").
Because Wise must show that
the denial of the continuance resulted in his
lawyers performing inadequately so as to violate
his right to counsel, his argument on this point
necessarily coalesces into his next, and final,
argument, to which we now turn.
Wise contends that his
lawyers ineffectively represented him in the
sentencing phase, in violation of his right to
counsel. We will reverse a death sentence for
ineffective assistance of counsel only if the
representation was constitutionally deficient
and if the deficiency prejudiced the defendant.
See Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
constitutionally deficient if "counsel made
errors so serious that counsel was not
functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." Id.
Constitutionally deficient representation
prejudices a defendant if "there is a reasonable
probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different." Id. at
694, 104 S.Ct. at 2068.
In Wise's postconviction
relief hearing, his lead lawyer did not testify.
According to Wise's other lawyer, who did
testify at the postconviction hearing, the lead
lawyer was responsible for the decisions made in
the sentencing phase. Accordingly, in reviewing
these decisions, we cannot know the thought
processes of the lead attorney and we therefore
must rely on the record of the sentencing phase.
We bear in mind that "[j]udicial scrutiny of
counsel's performance must be highly deferential."
Id. at 689, 104 S.Ct. at 2065. Wise takes issue
with several aspects of his lawyers'
performance, each of which we will consider in
Wise first asserts that his
lawyers ineffectively assisted him because, as a
result of the denial of the continuance, they
did not sufficiently prepare for the sentencing
phase. Even if it were true that they did not
sufficiently prepare (a question we do not
decide), inadequate preparation in itself does
not prejudice a defendant. Wise must show that
his lawyers' poor preparation resulted in a poor--and
prejudicial--performance. Thus, even assuming
for the sake of argument that Wise's lawyers
were unprepared, we will not grant Wise relief
for this reason alone.
Next Wise argues that his
lawyers should have given the jury more
information about three subjects: Wise's
troubled childhood, his poetry, and his aptitude
for music. The record shows that the jury did
hear about each of these subjects in some detail.
We decline to second-guess Wise's attorneys by
holding that they should have pursued these
subjects further, and we cannot say that
pursuing them further would have given rise to a
reasonable probability of a different result.
Thus, these contentions fail.
Wise also argues that his
lawyers should have elicited testimony that his
personality changed for the worse when he abused
cocaine. Wise contends that, since some evidence
presented in the guilt phase showed that he used
cocaine before he murdered McDonald, the jurors
would have sympathized with him had they been
told that he was a better person when he was not
under the influence of cocaine.
Wise has not shown that
failing to elicit this testimony was so grave an
error as to deprive him of his constitutional
right to counsel, or even that it was an error
at all. Even in the unlikely event that
additional testimony was necessary to lead the
jury to the unsurprising conclusion that cocaine
negatively affected Wise, Wise's lawyers might
reasonably have concluded that the jurors would
not be more likely to sympathize with Wise if
they were presented with testimony that drug
abuse may have contributed to his crime.
Next Wise contends that his
lawyers should have called Dr. William O'Connor
to testify that Wise suffered from a mental
disease. Wise's lawyers met with Dr. O'Connor
shortly before the sentencing phase, and he told
them he was willing to testify for Wise.
They nevertheless chose not
to call him. Wise has given us no reason to
think that this was not a strategic decision
made after meeting with Dr. O'Connor, and such
decisions are "virtually unchallengeable" under
Strickland. Id. at 690, 104 S.Ct. at 2065-66. We
decline to question this decision here. The
failure to call Dr. O'Connor did not deprive
Wise of his right to constitutionally effective
Finally, Wise argues that his
attorneys should have moved in the sentencing
phase for another competency hearing. Wise has
not shown that his lawyers fell short of the
constitutional standard of conduct by not so
moving, much less that he was prejudiced by this
Given that Wise already had
been adjudicated competent not once but twice
before the trial, that his performance in the
trial did not cast his competence into doubt,
and that he has offered us no reason to think
that he was less competent after the trial than
before, we can only conclude that any motion for
additional competency proceedings at the
sentencing phase would have been doomed to
likely, and appropriate, failure.
For the reasons stated above,
we reject Wise's claim of ineffective assistance
of counsel in the sentencing phase of his trial.
The District Court's denial
of Wise's petition for a writ of habeas corpus