Commonwealth v. Banks

NIX, Chief Justice,

dissenting.

Although I have serious problems with the trial court’s determination that the appellant had the mental competence to stand trial, my dissent from the majority opinion is based on another ground. In my view the trial court, by allowing appellant to put before the jury the gruesome photographs of the infant victims’ bullet-torn bodies, permitted him to convert the system of criminal justice into an instrument for his self-destruction.

The appellant’s court-appointed lawyers had advised him not to take the witness stand; yet, he elected to disregard their advice. Although the appellant had every right to give testimony in his own behalf, he went beyond that. The appellant took it upon himself to introduce in evidence, for the purpose of trying to establish a preposterous theory of a conspiracy against him, photographs of the dead victims. Those pictures were so horrible and evocative, so inflammatory in their nature, that the trial court had previously ruled them, inadmissible. The judgment as to which exhibits will be introduced into evidence is a function to be performed by a competent trial counsel. See Commonwealth v. Bell, 442 Pa. 566 , 276 A.2d 834 (1971). The conclusion is therefore inescapable that when the appellant on his own, over the strenuous opposition of his counsel, put the photographs before the jury, he was acting as his own attorney and was representing himself. He had, at that point, superseded appointed trial counsel as to the stewardship of the case.

It is true that the United States Supreme Court, in Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975), held that a criminal defendant has a constitutional right to represent himself. The Court, however, cautioned that, “[although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages *363 of self-representation, so that the record will establish that ‘he knows what he was doing and his choice is made with eyes open.’ ” Id. at 835 , 95 S.Ct. at 2541 (emphasis added). The Court also observed that a defendant’s right to act as his own lawyer was not a license to abuse the dignity of the judicial process. Id. at 834 n. 46, 95 S.Ct. at 2541 n. 46.

The record in the instant case clearly portrays the appellant as a person suffering from a severe mental disorder, if not at the time of the crime itself, then certainly during the trial. The truth of that conclusion is made even more compelling by the absurdity of his conspiracy theory and his proposal to establish it with exhibits which could do nothing but prejudice his case. Despite the trial court’s finding that the appellant was competent to stand trial, his paranoiac utterances and ramblings before the judge should have left no doubt in the mind of the court as to his inability to undertake any part of his representation. 1

Other jurisdictions have considered the issue of the power or even the duty of a trial judge to prevent a criminal defendant from representing himself in certain circumstances. For example, in People v. Burson, 11 Ill.2d 360 , 143 *364 N.E.2d 239 (1957), the Supreme Court of Illinois was confronted with the problem of self-representation by a defendant whose sanity was seriously in doubt. The Court concluded that even if the defendant was sane at the time of trial, his right to represent himself was subject to the constant duty of the court to protect the judicial process from inadequate and improper conduct of the defense. The Court further held that such a duty included the broad discretion to supersede the defendant’s conduct of his own defense.

Along similar lines was the thinking of the Supreme Court of Washington in the case of State v. Kolocotronis, 73 Wash.2d 92 , 436 P.2d 774 (1968). There, that Court stated the following: “Even though a defendant demands his constitutional right to act as his own counsel, if the court determines that he does not have ... adequate mental competency to act as his own counsel, then his right to a fair trial and his constitutional right to due process of law, [are] disregarded if the court permits him to so act in a criminal case.” Id. at 97-100 , 436 P.2d at 779-80 .

As I read the record in this case the trial court, in allowing the appellant to introduce the photographic exhibits, gave no consideration to his questionable mental state at the time. Even assuming the validity of the initial judgment of the court that appellant was competent to stand trial, that judgment did not relieve the court of the responsibility of assuring that the proceedings were in accordance with a fair trial. Moreover, the United States Supreme Court in Westbrook v. Arizona, 384 U.S. 150 , 86 S.Ct. 1320 , 16 L.Ed.2d 429 (1966), in a unanimous per curiam opinion stated:

Although petitioner received a hearing on the issue of his competence to stand trial, there appears to have been no hearing or inquiry into the issue of his competence to waive his constitutional right to the assistance of counsel and proceed, as he did, to conduct his own defense. ‘The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, ir^ *365 which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’ Johnson v. Zerbst, 304 US 458, 465 [ 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 ]; Carnley v. Cochran, 369 US 506 [ 82 S.Ct. 884 , 8 L.Ed.2d 70 ].

Id. at 150, 86 S.Ct. at 1320 (emphasis added).

Although counsel for the defense were physically present, the court permitted Banks to waive the assistance of counsel when appellant was permitted to introduce this evidence and to make these highly prejudicial comments over the strenuous objection of both defense counsel. Such an action in my judgment constitutes a waiver of counsel without the court’s exercising its “protecting duty.”

For the reasons set forth herein, I am constrained to conclude that the trial judge, in allowing the defendant to introduce the prejudicially inflammatory pictures, did not perform his constitutional protecting duty of attempting to ensure that the waiver of counsel was intelligently and knowingly made. As a consequence, this record reflects that a mockery was made of justice.

This action is justified by the Commonwealth by suggesting that this bizarre conduct was merely a strategem by Banks to convince the jury he was insane. It is quite true that one can feign insanity by acting in a bizarre manner. However, it is equally true that one mentally disturbed is quite likely to act in a bizarre manner. The court should have sought expert medical assistance in determining in this instance which was the case. Such a request was made by defense counsel and refused by the court.

As former Chief Justice Burger observed in his dissenting opinion in Faretta v. California, the trial judge is “charged with the duty of insuring that justice, in the broadest sense of that term, is achieved in every criminal trial.” 422 U.S. at 839 , 95 S.Ct. at 2543 . That goal, according to Chief Justice Burger, “is ill-served, and the integrity of and public confidence in the system are under *366 mined, when an easy conviction is obtained due to the defendant’s ill-advised decision to waive counsel.” Id. Going further, Chief Justice Burger said, “[t]he damage thus inflicted is not mitigated by the lame explanation that the. defendant simply availed himself of the ‘freedom to go to jail under his own banner.’ ” Id.

I therefore dissent and would vacate the judgments of sentence.

ZAPPALA, J., joins this dissenting opinion.

. Prior to appellant’s taking the witness stand and introducing the photographs, a colloquy took place between him and the trial judge. During that exchange the appellant made remarks such as: “I can show that there is a conspiracy against me. I can prove it with material fact, right here in this courtroom today____ This is the only shot I got to pull the mask off the face of the Devil, and I intend to do it____ I sat up here, sir, for eight days and listened to nothing but hypocrisy, lies and corruption and coerced and perjured testimony. I don’t see where I can hurt myself____ I don’t have a chance anywhere in this nation ... this trial is a farce---- I've been bullied enough.” Following the last remark, the trial judge stated that he would not tolerate "testimony” of that kind. T.T. 1639-1642.

In response to the court’s rebuke the appellant replied: "Well, then, I’ll take my best shot and go with what I got. Can I get my photographs and stuff?” The judge answered, “you certainly may.” T.T. 1642. At that point, defense counsel asked the court to determine again the appellant’s mental competency, stressing the utter absurdity of the conspiracy theory. The trial judge denied the motion, and in doing so said: “It may well be that he believes that. It may well be, as they say, part of his delusion. If that is so, it doesn’t seem to me you’re hurt.” T.T. 1643. This last statement addressed the concern of defense counsel that the conspiracy theory would make them "look like a bunch of monkeys.”