Appendix — Hill v. Naddi

No.

Suprer - Court, U.8.

(4 se i ae

Ope 37 1 AUG 3 14998

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1998

D. R. HILL, Warden, et al., Petitioners,

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

———_ IE 08 Ds ae

TOUFIC BADIH NADDI, Respondent.

V.

APPENDIX

DANIEL E. LUNGREN

Attorney General

GEORGE WILLIAMSON

Chief Assistant Attorney General

GARY W. SCHONS

Senior Assistant Attorney General

HOLLY D. WILKENS

Deputy Attorney General

PAMELA A. RATNER

Supervising Deputy Attorney General

Counsel of Record

110 West A St., Suite 1100

San Diego, CA 92101

P.O. Box 85266

San Diego, CA 92186-5266

Telephone: (619) 645-2273

Counsel for Petitioner

A-i

INDEX

Page

State of California Court of Appeal,

Fourth District, Division One,

[Unpublished Opinion]

filed January 7, 1994 A-1

United States District Court,

Southern District of California,

Report and Recommendation

filed January 23, 1996 A-38

United States District Court,

Southern District of California,

Order Adopting Magistrate’s Report and

Recommendations; Conditionally Granting Writ of

Habeas Corpus

filed April 29, 1996 A-65

United States District Court,

Southern District of California,

Order Denying Motion for Reconsideration and

Denying Ex Parte Application for Stay

filed May 16, 1996 A-77

United States Court of Appeals

for the Ninth Circuit

Memorandum

filed June 9, 1998 A-81

United States Court of Appeals

for the Ninth Circuit

Order

filed July 27, 1998

A-84

A-iii

A-1

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA

FOURTH DISTRICT, DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

Vv.

TOUFIC BADIH NADDI,

Defendant and Appellant.

D013123

(Super. Ct. No. CR76494)

[UNPUBLISHED OPINION]

Filed January 7, 1994

APPEAL from a judgment of the Superior Court of San

Diego County, Terry B. O’Rourke and Raymond Edwards, Jr.,

Judges. Affirmed.

Toufic Badih Naddi appeals a judgment entered after a jury

found him sane, guilty of five counts of first degree murder (Pen.

Code,” § 187) each while using a gun (§ 12022.5) and the special

circumstance of multiple murder (§ 190.2, subd. (a)(3)). He

received consecutive life sentences without possibility of parole and

an aggregate term of 135 years to life.

Naddi contends his double jeopardy rights under both the

California Constitution and the United States Constitution were

violated when during closing argument the prosecutor committed

1. All statutory references are to the Penal Code.

A-2

deliberate misconduct in order to "save" his case by provoking

Naddi and his defense counsel to request a mistrial. He further

asserts his double jeopardy rights were violated when at the

request of defense counsel, but over his express objection, at a

later trial the court granted a mistrial motion based on jurors’

exposure to newspaper publicity. Regarding these double jeopardy

contentions, he asserts he was denied his right to effective

assistance of counsel due to his counsel’s failure to raise these two

independent double jeopardy claims. Additionally, he argues all

guilt and sanity phase verdicts must be reversed because he was

denied his right of self-representation under the Sixth Amendment

in Faretta v. California (1975) 422 U.S. 806. He continues and

argues he was denied both his Fifth and Sixth Amendment rights

under the United States Constitution, as well as his corresponding

article I, section 15 rights under the California Constitution, to

select and present his defense to the jury. He argues the trial

court’s failure to grant his defense Miranda” motion to suppress

all statements made by him to Dr. Wait Griswold requires reversal

of the "sane" finding, because every psychiatrist testifying for the

prosecution relied on Dr. Griswold’s inadmissible psychiatric

interview. As to sentencing, he challenges the 135 years to life

without possibility of parole, asserting it must be vacated due to

improper multiple punishment on three separate and distinct

grounds. He also argues all gun use enhancement punishment,

except for one, must be stricken, pursuant to section 654. As we

shall explain, we affirm the judgment.

F BACKG ND

On June 3, 1985, Naddi called the El Cajon Police

Department and reported he had shot and killed five people at his

home. During that 30 minute telephone conversation, Naddi

stated he had a .22-caliber rifle, he wanted the responding police

officers to kill him, his two young children were playing outside,

2. Miranda v. Arizona (1966) 384 U.S. 436.

A-3

and his wife had been molested by her father. Naddi was finally

convinced to put the rifle down and to come out of the house, at

which time he was taken into custody. The police then entered the

home and found the five slain victims: Naddi’s wife Aida, her

father Habib Sabbagh, her mother Lilian Sabbagh, her cousin

Michael Sabbagh, and her brother-in-law Osama Maschini. Each

had sustained multiple gunshot wounds to the head and Aida and

Habib each suffered bullet wounds to the groin. The murder

weapon, a Winchester model 190, .22-caliber semi-automatic rifle

and unexpended .22-caliber ammunition and casings were found

near each of the bodies, as well as on the stairway, kitchen counter

and dining room table.

Naddi was promptly advised of and waived his Miranda rights.

During police interrogation, Naddi provided some personal

background history, characterized his relationship with the victims

and his motive for the murders. Specifically, Naddi explained he

had been living in the United States for approximately 12 years

and had lived in San Diego for the majority of that time. The

house had been bought by Habib, as Naddi’s in-laws frequently

stayed there with he and his wife. He described his relationship

with Habib as not very good, emphasizing Habib was on his back

all the time and was an old uneducated man with money. His

suspicions arose regarding Habib’s relationship with Aida because

the former often gave the latter money. He became even more

suspicious approximately 40 days before the murders, when Aida’s

sister, Yasirea, had been visiting and went into Habib’s bedroom

and came out an hour later upset and had to be taken to the

hospital. In addition, during the beginning of May, Aida returned

from a month-long trip to Jordan where she had gone to care for

her ill mother. Naddi had apparently made numerous telephone

calls to her, but she was never home. As a result, he became quite

angry, believing she was doing things she should not do and was

lying to him. In fact, he believed Aida’s mother’s illness had been

merely an excuse, so when she returned he confronted her. At

that time, he advised her he believed, when he married her, she

had not been a virgin. Promising to forgive her and assuring her

)

A-4

they could start anew, he directed her to sit down and tell him the

"whole story" and to write down all the men she had slept with or

who were responsible for destroying their marriage. Naddi

indicated she drafted a list which included her father, Habib.

Later, Naddi confronted Habib regarding molesting Aida and

Habib denied it.

The day before the murders, Aida retained a divorce lawyer

and had a heated argument with Naddi. That evening, at about 10

p-m., Naddi was surprised by the unannounced arrival of Habib,

Lilian, Osama and Michael. At that time, Naddi believed the

latter two were Habib’s "body guards” and that they all intended

to take Aida and the children from him. The following morning,

Naddi awoke to discover everyone in the dining room having

coffee. He sensed Lilian was ignoring him and he became angry

when she kissed his young daughter on the mouth, believing they

were trying to instigate him to do something because he had

accused them of being "a bad family."

He later left the house and visited a long-time friend, Neil

Nicastro. Over a cup of coffee, Naddi told him the "whole story"

and Nicastro warned him not to do anything stupid or "drastic."

Later, Naddi met another long-time friend, Jack Wells, and asked

him how to buy a gun for protection against prowlers. Wells

advised Naddi he could buy a shotgun from a department store,

but that he could not get a handgun quickly due to the necessary

waiting period. Naddi returned home at approximately 11 a.m., at

which time the victims were all leaving the house. They returned

at approximately 4 p.m. Naddi indicated that after a neighbor left,

he went upstairs, made a cup of coffee and sat down at the dining

room table. Aida came over to the table and advised him she had

an appointment with an attorney on Monday and had paid the

attorney a $1,000 retainer which she had placed on Naddi’s VISA

card. Naddi stated he got the impression Aida was offering him

money to leave the house, which infuriated him and caused him to

start drinking. Frustrated, Naddi felt he could not "beat the old

A-5

man in a court of law" and he knew he had a "slim chance" of

obtaining custody of his children.

While Aida was sitting at the table, the remainder of her

family were sleeping, and the children were playing outside, Naddi

retrieved his rifle from his bedroom and shot Michael first.

However, he began calling for Osama whom Naddi had forgotten

was downstairs. Naddi then shot and killed Lilian, then Aida and

then he went into the bedroom where Habib slept and shot and

killed him as well. According to Naddi, none of his victims, except

Michael, struggled. Naddi stated he had intended to kill Aida and

Habib first. He also declared, believing he had performed his

"mission," he tried to shoot himself, but could not do so. He then

called the police.”

NADDI_ WAS NOT DENIED HIS RIGHT TO

PRESENT A "HEAT OF PASSION" DEFENSE

CONSISTENT WITH HIS THEORY OF THE CASE

Naddi claims his federal and state constitutional rights were

denied because the defense theory his attorneys selected and

presented to the jury as to why the facts supported a "heat of

passion" defense reducing his crimes from murder to manslaughter

was qualitatively different than the one he wished them to offer.

He notes that the Sixth Amendment guarantees him the right to

present a defense and the Fifth Amendment guarantees his right

to take the stand in his own defense, both rights he claims were

violated. He cites the holding in People v. Frierson (1985) 39

Cal.3d 803, 813-814, for the proposition that the deference to

counsel’s choice of trial strategy on tactics counsel must bow to the

defendant’s personal choice where there are "fundamental"

decisions in a criminal case. However, in Frierson the defendant

made it clear he wanted to present a diminished capacity defense

at the guilt/special circumstance phase, a defense for which there

3. His blood alcohol, taken approximately five hours after the

murders, was .01 percent by weight.

A-6

was some evidence of which counsel was aware. However, to the

defendant’s surprise his counsel rested without presenting any

defense at all and overriding the defendant’s desire to take the

stand. (Referring to Frierson’s initial trial, People v. Frierson

(1979) 25 Cal.3d 142.)

Here, Naddi took the stand and testified extensively

concerning his entire marital history and his alleged stormy

relationship with Habib over the years. He spoke of the Middle-

Eastern culture to which he was exposed and which he declared

influenced him substantially, and in particular the Arabic principle

that wives should be subservient to their husbands and that those

who were unfaithful should be stoned to death.

Although Naddi argues his theory of defense was totally

different than that presented by his attorneys, that is a gross

mischaracterization. At the guilt phase, the attorneys relied upon

a "heat of passion" theory in an effort to convince jurors to reduce

the admitted homicides from premeditated murder to

manslaughter. Naddi claims his attorneys’ "heat of passion"

defense was keyed to evidence he suddenly erupted violently and

irrationally when his in-laws unexpectedly arrived the night before

the shooting and began interacting with his children in a manner

he considered sexually inappropriate. These observations coupled

with Aida’s steps towards divorce and her offer to "buy" custody of

the children by paying Naddi money, overlay Naddi’s long-festering

belief Aida was sleeping with other men and had been sexually

intimate with her father since age seven, culminated in the violent

assassination of four sleeping persons and his unresisting wife.

Naddi now claims his theory was a different version of the

“heat of passion" defense, one based on many years of slights and

indignities he suffered at the hands of his wife and her relations.

That is, he became more depressed and began drinking after

learning of Habib’s molestation of Aida and Aida’s other

infidelities. These confirmed his long-held suspicions regarding his

lecherous and domineering father-in-law and unfaithful wife. Thus,

A-7

Naddi argues his attorneys overruled his wishes to produce

witnesses to support his testimony that his feelings were generated

by a “heat of passion" generated by the cumulative effect of a

series of events over a considerable period of time. (See

instruction in People v. Aris (1989) 215 Cal.App.3d 1178, 1202.)

In addition, Naddi contends his defense was based upon proving

Aida’s infidelity and sexual liaison with her father over the years

actually occurred, while he claims his attorneys were motivated to

attempt to characterize them as delusions because that dovetailed

with the evidence they intended to produce in support of his

insanity defense.

Naddi also meritlessly claims his attorneys’ failure to call

certain witnesses he had identified prevented him from presenting

circumstantial evidence that would support his theory. He does

not identify any witness that would testify favorably, only vaguely

alluding to his belief that certain persons might do so. In light of

the fact that several of the witnesses he expected to present

favorable evidence did not do so when they did testify, his

assertion is purely speculative. However, Naddi’s testimony made

it very clear that he had no evidence that any sexual molestation

by Habib had in fact occurred or that Aida had been sexually

unfaithful to him, or that any uncalled witness would so testify. He

admitted he demanded Aida prepare a list of people with whom

she had slept or had ruined their marriage or had destroyed their

marriage in some way. The list included Aida’s mother, her sister,

an Iranian woman who "they" started bringing to the house and

various male relatives, doctors and friends. Naddi admitted

drinking with one of his victims, Osama, the afternoon and evening

before the murders. When asked why he would buy this victim

liquor if he believed he was sleeping with his wife, Naddi replied

he never saw him sleeping with his wife and therefore he reacted

with normal Middle-Eastern hospitality in providing drinks. He

admitted that he suspected Osama because Aida had written his

name, but he was not sure, and in fact never saw Aida do anything

untoward with any of the people on her list. When Naddi and

Osama ran out of liquor, Naddi went to the liquor store and

A-8

obtained more. Upon returning, he found only Aida still awake,

the other victims had retired. After a brief discussion with Aida in

which she purportedly offered him money in exchange for custody

of the children, he became angry, believing she was insulting him

and then he went downstairs to get his rifle which was loaded with

15 shells and obtained extra bullets from a closet. He admitted he

went downstairs to get his rifle for the purpose of shooting the

sleeping people upstairs. In addition, Nicastro testified to Naddi’s

disheveled appearance and depressed attitude several hours before

the killing and told another person that Naddi stated he wanted to

kill his father-in-law, but did not have the guts to do it. After

having a conversation with Nicastro, Naddi met Wells at a coffee

shop at approximately 9 a.m. Wells described Naddi as being

freshly shaven, wearing a suit and tie with no noticeable difference

in demeanor or actions than any other day. However, Naddi asked

Wells if he knew where he could get a gun which he needed for

protection. Wells replied it would probably take two or three

weeks to get a permit for a gun, but if he went to Montgomery

Ward or Sears & Roebuck he could get a shotgun. Naddi testified

he then went to a sporting goods store and to a Montgomery Ward

for the purpose of buying a gun; however, he decided he already

had a gun in the house that was adequate so he just went home.

Upon arriving there he took the gun downstairs and "waited for my

children to come back."

The children arrived home at approximately 2 p.m. and a

neighbor, Kathy Cradit, came over at approximately 2:30 and

stayed a half hour. She found Osama and Naddi sitting at the

kitchen table talking, the children playing outside the house, and

Aida fixing food. Cradit, Aida and Lilian had a normal

conversation and everyone was in good spirits. Cradit testified she

had never seen Aida being sexually approached by Habib during

the years she knew him and denied ever seeing him act

inappropriately toward Naddi’s children, Aida or other women.

In an effort to establish Habib had a propensity for sexually

inappropriate conduct toward women and children, defense

Deii ite

ee ee a ee ee ot

A-9

counsel called Lois Hellberg to testify concerning her observations

on the single occasion she and her husband had visited the Naddi

home and participated in a barbecue at which Habib was present.

Her testimony provided no support for this theory. Defense then

called Marian Akroush, a native of Syria, who had a long-standing

personal relationship with Naddi and Aida, and came in contact

with Habib on several occasions. On one occasion while Habib

was visiting in the Akroush residence, he put his arm around

Akroush. Following that incident, Akroush’s husband refused to

permit her to go to the Naddi residence, because in Syrian culture

"no man puts his arm around a lady except her husband." Akroush

was deeply offended.

On cross-examination, Naddi admitted Aida stated she never

had sex with the men (or women) she placed on the list. But, even

though he claimed to suspect possible sexual activity between Aida

and at least some of the men, he made it clear that the main

reason he killed Osama and the others is "that God wanted them

to die." ("Them" included Michael who was not even on the list

prepared by Aida.) After recounting how he had spoken to a

lawyer, telling him he wanted to take the law into his own hands

because he could not face the possibility Aida and his in-laws

would defeat him during the divorce and custody proceedings, he

again stated he did not wait and fight in court, "[b]ecause God

wanted [the murders] to be done at that time." By the end of

Naddi’s testimony he had completely negated any theory that the

killing was due to a “heat of passion," whether provoked by

cumulative incidents festering over a long period of time or

brought on by the unexpected arrival of his in-laws, the divorce, or

Aida’s insulting him by offering money in exchange for custody of

the children immediately before the massacre.

In any event, defense counsel in final argument recounted the

long history of Naddi’s frustrations with Habib’s dominance and

interference, and the demeaning position in which Naddi was

placed by the wealthier man. He also detailed evidence that

Naddi was frustrated through the numerous broken promises of

A-10

businesses to be purchased and provided by Habib and his

humiliation upon learning of Aida’s unfaithfulness and incest.

The court instructed the jurors with the standard manslaughter

instructions from CALJIC, advising them that to reduce an

intentional felonious homicide from murder to manslaughter on

the grounds oi sudden quarrel or heat of passion, the provocation

must be of such character and degree as naturally would excite and

arouse such passion and that Naddi must have acted under the

smart of that sudden quarrel or heat of passion. They were also

instructed that the heat of passion sufficient to reduce a homicide

to manslaughter must be one as naturally aroused in the mind of

an ordinary reasonable person in the same circumstances and one

which obscured the reason of the accused to such an extent that

would cause an ordinarily reasonable person of average disposition

to act rationally and without deliberation and reflection and from

such passion rather than from judgment. The court correctly

advised the jurors that either acts committed without deliberation

upon a sudden quarrel or committed under the influence of heat

of passion would reduce an intentional killing to manslaughter.

Significantly, in light of Naddi’s own testimony, the jury was

instructed that when the influence of passion has ceased to obscure

the mind of the accused and sufficient time has elapsed for angry

passion to end and reason to control, its conduct will no longer

-reduce an intentional! killing to manslaughter.

Naddi contends the standard instructions did not adequately

advise jurors that heat of passion may be aroused by a series of

events over a considerable period of time and that verbal

provocation may be sufficient. Absent specific instructions to that

effect, Naddi apparently argues jurors would give no legal

significance to the fact he acted without deliberation and

aforethought in the heat of passion if that mental state was the end

product of a series of events occurring over a long period of time.

He does not support this proposition by reference to the record in

this case. Although Naddi would have been entitled to equivalent

pinpoint instructions on request (see People v. Thompkins (1987)

IS a a

A-11

195 Cal.App.3d 244, 256-257, & fn. 6), no such request was made

here. Because the instructions given correctly set forth the law

regarding intentional killings committed under the influence of

heat of passion, Naddi’s contention his attorneys provided

ineffective assistance of counsel for failing to request the special

instructions lacks foundation. Likewise, his claim the trial court

erred in failing to provide these pinpoint instructions sua sponte is

not supported on this record.

THE DOUBLE JEOPARDY ISSUES

Naddi raises various double jeopardy issues after mistrials

were granted in several of his separate sanity trials, citing Burks v.

United States (1978) 437 U.S. 1, and a reference to Burks in

United States v. Scott (1978) 437 U.S. 82. In Burks, the United

States Supreme Court applied double jeopardy principles in

barring retrial of an unbifurcated case in which it found the

defendant’s motion for acquittal at the close of the prosecution

case should have been granted because the prosecution evidence

was insufficient as a matter of law to permit the matter to go to

the jury concurrently with the evidence relating to the guilt phase.

(Burks v. United States, supra, 437 U.S. at p. 18.)

In Burks, the court based its holding that the government,

having the burden of proof, had failed as a matter of law to carry

its burden of overcoming defense evidence of the defendant’s legal

insanity. Thus, that court declared the double jeopardy clause

“forbids a second trial for the purpose of affording the prosecution

another opportunity to supply evidence which it failed to muster

A-12

in the first proceeding.’ (Id. at p. 11, fn. omitted; People v.

Belton (1979) 23 Cal.3d 516, 527.)

Naddi does not rely on the precise holding of Burks, impliedly

conceding the evidence at the time his request for mistrial was

granted following completion of the evidence was sufficient to

support a jury finding he had nx: carried his burden to establish he

was legally insane at the time he committed these multiple

murders. Instead, he contends his successful request for mistrial

before completion of the second sanity trial was compelled when

the prosecutor deliberately engaged in misconduct to force a

mistrial and prevent Naddi from obtaining a favorable verdict.

(See Oregon v. Kennedy (1982) 456 U.S. 667.) Naddi also raises

a double jeopardy claim after the court granted a mistrial during

a later sanity trial at his attorney’s request, but over his own

express objection. He argues his personal consent was necessary

to permit the court to grant a mistrial where there was no legal

necessity to terminate because a nonconsensual mistrial ordered by

the court under those circumstances would prevent retrial because

of the double jeopardy bar. Finally, he argues his attorneys’ failure

to enter a plea of once in jeopardy (§ 1016) before each

subsequent trial should not be deemed a waiver (see People v.

Moore (1983) 140 Cal.App.3d 508, 511; People v. Belcher (1974)

11 Cal.3d 91, 96) because it was due to counsel’s constitutionally

ineffective representation. (See Strickland v. Washington (1984)

466 U.S. 668; People v. Medina (1980) 107 Cal.App.3d 364, 370.)

After the initial jury was unable to reach a verdict on the

Sanity issue, the trial proceeded before a different jury. The

prosecution introduced essentially the same evidence as in the first

4. We recognize that the facts and procedures in place during

Burks’s federal trial are significantly different than Naddi’s, in which

he has the burden to prove legal insanity. We do not address

whether double jeopardy rights inure to mistrials entered at a

bifurcated not guilty by reason of insanity phase, but have assumed it

does solely for the purpose of addressing the merits.

|

A-13

trial, testimony from three psychiatrists. The defense also

introduced evidence of the psychiatrists it presented in the first

trial, but in addition introduced lay testimony that following the

killings Naddi had confided his actions were in accord with God’s

command to kill his wife whom he truly believed to have been

unfaithful. One of the prosecution’s expert witnesses, Dr. Gary

Weissberg, listened to testimony of one lay witness, a jail minister

who testified to Naddi’s references that he responded to God’s

commands. Dr. Weissberg then testified that had he been aware

Naddi had confided in others that God had instructed him to kill

his victims because they were evil, he would have had to

"reconsider" his opinion that Naddi was not acting delusionally at

the time of the killings. Thus, at the close of the evidence, three

defense psychiatrists essentially believed Naddi was legally insane

at the time of the killings, two psychiatrists concluded he was sane

and Dr. Weissberg who, after listening to the lay witness testimony

that Naddi professed to have been motivated by a command from

God, indicated that "had Mr. Naddi received, or believed that he

had received a communication from God instructing him to kill

these people because they were evil, I would have to reconsider

my opinion." Although Dr. Weissberg’s position seems equivocal,

it does not, as Naddi attempts to convince us on appeal, make Dr.

Weissberg’s testimony totally favorable to the defense. Especially

in light of Dr. Weissberg’s next remarks: "However, this appears

to be inconsistent with other evidence that was gathered around

the same time." Dr. Weissberg never testified he believed Naddi

was not sane at the time of these killings. In fact, Dr. Weissberg

stated Naddi specifically denied hearing the voice of God when

responding to Dr. Weissberg’s specific questioning. In summary,

all the doctors agree Naddi knew the nature and quality of his acts,

but there was a strong difference of opinion as to whether he

suffered from a mental disease which prevented him from

differentiating right from wrong at the time of the killings.

During final argument the prosecutor discussed testimony of

the psychiatrists. He also discussed the testimony of lay witnesses

concerning Naddi’s statement to them regarding his animosity

A-14

toward Habib and his expressed desire to kill him, and recited —

details of the multiple killings which he believed to be inconsistent —

with Naddi’s acting delusionally. After approximately 50 minutes

of argument, the court recessed for lunch.

Following lunch the prosecutor argued for approximately the

same amount of time and then began discussing Naddi’s personal

value system, based upon his Middle-Eastern culture so that he

believed child molestation was a worse crime than murder. The

prosecutor argued that Naddi may have been making choices

because he believed he was morally justified, but that "people

often fee] that they are in the right, they are on the side of justice,

but it is not sufficient to feel justified to think that something is

right. The question is, whether or not the person has a capacity to

understand right from wrong." At this point the prosecutor argued

Naddi making those decisions was "no different than the people

who hung [sic] Colonel] Higgins last week -- they thought they were

on the side of right." Naddi’s attorney immediately objected and

moved for a mistrial claiming the prosecutor’s remarks unfairly

prejudiced and inflamed the jury.

Outside the presence of the jury, the court stated Colonel

Higgins’s recent execution after being held hostage by Shiite

Muslims in Lebanon was currently on the front page of the

newspapers and recognized the strong emotional resentment on

the part of the American people against that act. Commenting

that Naddi was also from Lebanon, the court asked the prosecutor

to attempt to justify what the court characterized as "about the

cheapest shot I have ever heard from anyone in closing argument."

The prosecutor strenuously argued his analogy was based upon a

discussion with Dr. Weissberg as an example of people who believe

they are justified in committing murder because they are on the

side of right, and was an example he selected because it was fresh

in everyone’s mind. The court declared it was strongly leaning

toward granting Naddi’s motion for a mistrial because of the

extreme inflammatory nature of the Colonel Higgins’s reference in

light of the fact Naddi was from the Middle-East. The court then

eee een

A-15

adjourned until the following morning at which time it reconvened

without the jury being present to consider Naddi’s motion for a

mistrial. At the outset of this hearing, Naddi personally stated he

joined in the attorney’s motion for a mistrial. Again, the

prosecutor strenuously argued against granting the motion for

mistrial. He disagreed with the court’s analysis that his remark was

so inflammatory that an admonition to the jurors could not cure

potential prejudice. The prosecutor pointed out that evidence

showed Naddi had been born and raised in Jordan, not in

Lebanon, a Christian who had gone to a Catholic school and

church. After a lengthy argument by the prosecutor opposing the

defense motion, the court granted the mistrial, finding the evidence

in the case closely weighed, and "I just think the weight of the

evidence was in Mr. Naddi’s favor" and the prosecutor’s statement

was sufficient to deny Naddi the possibility of a fair trial.

During the initial conference regarding the defense motion,

the court stated it was sure the prosecutor did not intend his

remarks to have caused a mistrial, stating "I am sure that, you

don’t want to retry the case anymore than anyone else does...

misconduct does not require intent. It can come about by

negligence as well. I’m not passing judgment on them." He went

on to state "I would assume that you did it spontaneously without

premeditation."

Naddi argues the above scenario shows he was entitled to

raise the bar of double jeopardy following the grant of mistrial

even though the mistrial was granted at his request, citing the

holding in Oregon v. Kennedy, supra, 456 U.S. 667. He contends

the record unequivocally shows the prosecutor’s reference to

Colonel Higgins’s murder by Lebanese terrorists was deliberately

intended to force a mistrial. Naddi theorizes the prosecutor

believed the evidence overwhelmingly favored a verdict by reason

of insanity and the deliberate misconduct was a ploy to force the

defense into a position whzre it would have to ask for a mistrial,

giving the People a fresh opportunity to present better evidence at

retrial.

A-16

In Oregon v. Kennedy, supra, 456 U.S. 667, the court

established a very narrow exception to the ordinary rule which

permits retrial following a mistrial to which the defendant consents.

It concluded that harassing or overreaching prosecutorial

misconduct does not bar a retrial, even if it is sufficient to cause a

mistrial on the defendant’s motion, absent an intent on the part of

the prosecutor to subvert the protections afforded by the double

jeopardy clause. (Id. at pp. 675-676, 679.) The Supreme Court

rejected an expanded exception relied on by the Oregon Court of

Appeal which had held retrial would be barred if the prosecutor’s

misconduct was intended to provoke a mistrial or is motivated by

bad faith or to prejudice the defendant.

The holding in Oregon v. Kennedy, supra, 456 U.S. 667, is

clear as it expresses the intent of the United States Supreme Court

in construing the double jeopardy clause of the United States

Constitution. However, the individual states are not prohibited

from adopting a greater degree of protection than that provided

against double jeopardy in the Fifth Amendment of the United

States Constitution. (See Curry v. Superior Court (1970) 2 Cal.3d

707, 716-717.) Naddi asks us to do so here, and adopt a rule that

the California double jeopardy clause is violated whenever during

closing argument a mistrial is declared at the request of the

defense based on deliberate acts of prosecutorial misconduct such

that the failure to make a mistrial motion would have constituted

ineffective assistance of counsel.

This court has considered and rejected a similar argument in

People v. Valenzuela-Gonzales (1987) 195 Cal.App.3d 728, 737.

In that case, the prosecutor violated an express court ruling that he

not question a certain witness about the defendant’s drug arrests.

The court granted a defense motion for mistrial based on the

misconduct of the district attorney. At a second trial, Valenzuela-

Gonzales was convicted on all counts before a different judge.

However, a new trial was granted before sentencing and prior to

the third trial, Valenzuela-Gonzales entered a plea of once in

jeopardy which was denied after hearing by the judge who granted

A-17

the mistrial. On appeal, we -held the trial court’s finding the

prosecutor’s conduct was not intended to goad the defendant into

moving for a mistrial was supported by substantial evidence, and

therefore the double jeopardy principles did not bar a second trial

under the holding of Oregon v. Kennedy, supra, 456 U.S. 667. We

recognized, however, California’s interest in protecting its citizens

has led the courts to interpret its constitutional double jeopardy

clause more broadly. We reviewed state court decisions from

other jurisdictions which found the double jeopardy provisions of

their state constitution should not be construed so narrowly as in

Oregon v. Kennedy, supra, 456 U.S. 667.

In State v. Kennedy (Ore. 1983) 666 P.2d 1316, the Oregon

Supreme Court interpreted that state’s double jeopardy clause to

bar a retrial "when improper official conduct is so prejudicial to

the defendant that it cannot be cured by means short of a mistrial,

and if the official knows that the conduct is improper and

prejudicial and either intends or is indifferent to the resulting

mistrial or reversal." (Id. at p. 1326.) In Pool v. Superior Court

(Ariz. 1984) 677 P.2d 261, the Arizona Supreme Court found the

Arizona Constitution bars retrial after a mistrial granted on motion

of the defendant because of improper conduct or actions by the

prosecutor when that conduct amounts to intentional conduct

which the prosecutor knows to be improper and prejudicial,

pursued for any improper purpose with indifference to a significant

resulting danger of mistrial or reversal, which causes prejudice to

the defendant incurable short of a mistrial. (Id. at pp. 271-272, fn.

omitted.) The Oregon and Arizona Supreme Courts believed the

rule of Oregon v. Kennedy, supra, 456 U.S. 667, required the court

to determine a prosecutor’s intent through a subjective inquiry, the

difficulties of which would make it unlikely for a court to arrive at

the truth.

In People v. Valenzuela-Gonzales, supra, 195 Cal.App.3d 728,

we expressed our disagreement with the reasoning of the Oregon

and Arizona decisions, noting the finding of the trial court on the

issue of intent is no different than inferring the existence or

A-18

nonexistence of intent from objective facts and circumstances

which is a familiar process in our criminal justice system. (See

Oregon v. Kennedy, supra, 456 U.S. at p. 675.) We concluded

there was no independent state reason to apply a different double

jeopardy standard on circumstances such as these than that

adopted in Oregon v. Kennedy. (People v. Valenzuela-Gonzales,

supra, 195 Cal.App.3d at p. 742.) Naddi asks us to reconsider

Valenzuela-Gonzales because it is erroneous. We have

reconsidered that decision in light of his arguments, and adhere to

it. Thus, the dispositive issue is whether the record establishes the

prosecutor’s prejudicial remark was intended to provoke the

defendant into requesting a mistrial.

As we have earlier stated, the trial court did not believe the

prosecutor had such an intent. During the prosecutor’s argument

against granting the defense motion, the court stated it was sure

the prosecutor did not want to retry the case any more than

anyone else. It is noteworthy the trial court indicated its strong

inclination to grant a mistrial immediately after the defense

motion, and before recessing to hear argument. Had the

prosecutor intended his remark to provoke Naddi into requesting

a mistrial to permit the People a better shot in a later proceeding,

that goal was virtually assured before the parties left the

courtroom. Instead, the record shows the prosecutor strenuously

argued against a mistrial for approximately two hours, attempting

to justify his motive in applying the analogy, pointing out his

remarks were interrupted in mid-sentence when the court

sustained Naddi’s objection, and that it was his intent t» explain

the analogy to the jurors in such a way as to eliminate prejudice.

He explained the analogy was suggested to him by Dr. Weissberg

shortly before his argument began as an example of how sane

people intentionally commit illegal and immoral acts under a belief

they are justified in doing so because they are on the side of right.

In Oregon v. Kennedy, supra, 456 U.S. at page 679, the trial

court made no findings of fact relative to whether the prosecutor

intended his conduct to goad the defendant into moving for a

SRN ata

A-19

mistrial. It was not requested to do so and the opportunity never

arose during any of the multiple lower court proceedings because

no plea of former jeopardy was ever entered. It is Naddi’s burden

on this appeal to establish the prosecutor acted with the requisite

intent. He asks us to speculate from the trial court’s

characterization of the prosecutor’s comments as outrageously

inflammatory that it was intentionally introduced to prejudice the

jury against him. However, to trigger the bar of double jeopardy,

it is not enough that the prosecutor intentionally introduce

inflammatory remarks for the purpose of gaining an unfair

advantage at trial, there must be proof the action was taken with

an intent to terminate the existing trial. (Ibid.) Although Naddi

asks us to glean an intent to force a mistrial from the trial court’s

opinion that the conflicting evidence as to his sanity tilted in his

favor, that requires a leap of logic not warranted by the record and

one which is inconsistent with the prosecutor’s lengthy arguments

in Opposition to the motion and his urging the trial ccurt to

admonish the jurors instead.

II

Following the grant of mistrial for prosecutorial misconduct,

attempts to impanel a new jury were aborted because the trial

court expressed doubts as to Naddi’s present sanity. After a

competency trial in which Naddi was adjudged competent, a new

jury was sworn and the evidence taking began. This time the

People announced they intended to present evidence from a

psychiatrist not previously presented. Shortly afte: the trial began

it came to the attention of the court that Naddi’s picture was on

the front page of both the evening Tribune and morning Union

with "teaser" headlines referring to his recent marriage. The

picture on the front page of the Union was placed next to another

"teaser" headline relating to a different person (Dean Carter)

stating, "Serial Killer Gets Death Penalty." Both newspapers

contained stories referring to interviews with Naddi’s new wife

whom he married while in prison during these proceedings, in

which she expressed her belief he was insane at the time the

A-20

killings took place but had recovered, and that he would be

released as soon as the insanity trials were completed. The

Tribune article also mentioned that Naddi had been subjected to

previous sanity trials, one of which had ended with an 11 to 1 vote

for a finding of sanity.

When defense counsel moved for a mistrial, the court

questioned each juror and the four alternate jurors. The inquiry

established that two jurors read a substantial portion of the

articles, one received a phone call from his neighbor who

recounted the Tribune article to him and had also read the Union

"teaser" about Naddi and his new wife. Juror Carol Blaisdell

claimed she did not read either article, but had heard juror Mario

Valencia discuss the articles with other jurors in the courthouse

hall. Juror Valencia, however, claimed he read only two or three

lines of one article and denied discussing the matter with anyone

although he heard other jurors claim they saw the newspaper but

did not read it. The court specifically declared it believed juror

Valencia was not truthful and, in fact, had discussed the article

with other jurors as juror Blaisdell had reported. The other jurors

and alternates either read and heard nothing about these articles

or saw the Union headline. After examination by the court and

counsel, each juror declared their verdict would not be affected by

this publicity.

Initially, the court stated it believed any potential prejudice

could be cured by merely replacing the two jurors who admitted

reading the articles with alternates. However, the defense

attorneys persisted in their request for a mistrial, pointing out that

other jurors were equally tainted, including juror Ernest McKay

who admitted violating the court’s admonition not to let others

discuss the case with him when he permitted his neighbor to read

the entire Tribune article to him, and juror Valencia who the court

had described as “covering up" by giving untruthful testimony

concerning his discussion of the articles with other jurors.

A-21

Once again, the prosecutor vigorously argued against the grant

of a mistrial, stressing his belief that an admonition to the jurors

would be sufficient to cure any potential prejudice. Naddi also

opposed the motion. At the beginning of the second day of the

mistrial hearing, the court stated:

"Yesterday, Mr. Naddi, your two counsel] made a motion

for a mistrial. Do you join in your counsels’ motion for

the mistrial?

"NADDI: No, Your Honor.

"THE COURT: You're against that?

"NADDI: Yes, Sir."

Without further inquiry the court stated: "All right, lets proceed

counsel. It’s your motion. Speak Mr. Crabtree and Ms. Barrett."

No further inquiry was made as to why Naddi was opposed to the

motion.

After considerable discussion and argument as to what

possible forms the prejudice might take, the court pointed to the

several jurors who expressed their surprise, and shock, when

learning that someone in Naddi’s position could be permitted to

marry. The court stated:

"[The defense attorney] has all sorts of speculations about

what effect it have [sic] but you do have people who

describe a reaction of shock. Do you think a reaction of

shock can be expunged in the minds and souls of jurors

by judicial admonition?"

After the prosecutor responded appropriately, the court stated:

"I think most people think that if somebody gets married,

they are planning on a marriage where it is consistent

A-22

with their future state. They may not think that that

means Mr. Naddi is walking out the door, but would be

a pretty safe inference that Mr. Naddi thinks he is,

wouldn’t it? Wouldn’t that be the most logical inference

... that would say something about what Mr. Naddi’s

future plans and state of mind might be? If there is an

inference that would be the most commonsensical one, it

is Mr. Naddi thinks he is going to be a free man soon,

because that’s the state most people associate with

getting married. Most people don’t associate with getting

married if you’re heading for death row."

After the prosecutor suggested the court was basically dealing in

speculation, it stated its belief there were some plausible

interpretations that could be prejudicial including:

"The most likely one that a person who gets married

because it is associated with that state people associate

with getting married outside the prison bars .. . [and]

some of these jurors who were shocked were shocked

that a person in his circumstance would even think it was

possible."

The court then continued:

"[W]e don’t know, do we? They didn’t want to explain

why they were shocked. We couldn’t get them beyond

that attitudinal statement, could we? We tried. They

knew they were shocked, but they didn’t reaily articulate

why."

After a brief recess, the court granted the defense motion for

mistrial, concluding Naddi’s concurrence in the defense motion

unnecessary, relying on People v. Moore (1983) 140 Cal.App.3d

508, 513. It stated that the prejudice caused by at least seven

jurors and two alternates seeing the newspaper headline, which in

the Union was placed beside the headline indicating that a serial

2, Se ee ee Maem

A-23

killer had received the death penalty, created a prejudice the court

believed was incurable by admonition. The court concluded from

its personal observation of the jurors, the prejudice was so great

it was legally necessary to grant the mistrial.

In Curry v. Superior Court, supra, 2 Cal.3d 707, the Supreme

Court declared that absent clear consent of a defendant or

counsel, a case mistried before submission to the jury may not be

retried except for some cause beyond the control of the court

amounting to legal necessity. In Curry, the Supreme Court

rejected a claim of legal necessity where the trial court had

declared a mistrial sua sponte because certain testimony had been

erroneously admitted which the court felt made it impossible for

either the People or the defendant to have a fair trial. (Id. at p.

714.) Examples of legal necessity are disappearance of the

defendant’s attorney in midtrial (People v. Manson (1976) 61

Cal.App.3d 102), defense counsel’s discovery of a conflict of

interest in midtrial (People v. McNally (1980) 107 Cal.App.3d 387,

393), disqualification of a trial judge during trial (T.P.B. v. Superior

Court (1977) 66 Cal.App.3d 881, 886), and a defense counsel’s

misstating evidence in opening statement which undermines the

defendant's credibility (People v. Coleman (1992) 9 Cal.App.4th

493, 496). a

In Arizona v. Washington (1978) 434 U.S. 497, the Supreme

Court considered the standard by which an appellate tribunal

should review a decision of a trial court to grant a mistrial over a

defendant’s objection, in a case where the trial court had made no

findings relative to whether there was a manifest necessity for

granting the mistrial. Although the Supreme Court concluded

defendants have a constitutional interest in their right to have a

trial completed by a particular tribunal (Arizona v. Washington,

supra, 434 U.S. at p. 503, citing United States v. Jorn (1971) 400

U.S. 470, 484, Illinois v. Somerville (1973) 410 U.S. 458, 466, &

Wade v. Hunter (1949) 336 U.S. 684, 689), it held that interest

must in some instances be subordinated to the public’s interest in

fair trials designed to end in just judgments (Arizona v.

A-24

Washington, supra, 434 U.S. at p. 503, citing Wade v. Hunter,

supra, 336 U.S. at p. 689).

The Supreme Court rejected an interpretation of “manifest

necessity" which would preclude the trial court’s exercise of

discretion in cases where a mistrial is not absolutely compelled.

Rather, it found compelling reasons for allowing the trial court to

exercise broad discretion in determining whether a high degree of

necessity requires a grant of mistrial to avoid having the case

decided by a jury which may be tainted by bias. (Arizona v.

Washington, supra, 434 U.S. at p. 516.) In Arizona, the Supreme

Covrt found that in a strict literal sense mistrial was not

"necessary" on the facts presented and that some trial judges might

have proceeded with the trial after giving appropriate cautionary

instructions. However, it felt "the overriding interest in the

evenhanded administration of justice requires that we accord the

highest degree of respect to the trial judge’s evaluation of the

likelihood that the impartiality of one or more jurors may have

been affected by the improper comment." (Id. at p. 517.) The

Supreme Court noted that it had affirmed a trial court that had

concluded the publication of a letter in a newspaper during trial

made it impossible for the jurors to dispose of the trial fairly, even

though it never examined the jurors to determine what influence,

if any, the article may have had on them. (See Simmons v. United

States (1891) 142 U.S. 148, 155.) Having concluded the trial

court’s decision to declare a mistrial is entitled to great deference,

the Supreme Court held that appellate review is to be limited to

determining whether the trial court’s discretion was exercised

soundly, that is not irrationally or irresponsibly.

Here, the court examined jurors and alternates, and permitted

the parties to do likewise. The court heard lengthy arguments

both for and against the grant of mistrial and explained the

reasons for its decision. The court’s perception that the character

of the material to which several jurors and alternates were exposed

was likely to prevent Naddi from having a fair trial even after

judicial admonitions, was concurred in by both defense counsel.

A-25

We find the court’s determination that the extent of the

exposure and the quality of the material to which the jury was

exposed created a legal necessity for a mistrial, and was well within

its discretion. Accordingly, we need not address the issue of

Naddi’s failure to consent.

FARETTA ISSUE

I

On April 8, 1987, Judge Tharp granted Naddi’s Faretta

motion and he continued to represent himself until September 18,

1987, when Judge O’Rourke expressed doubt as to his competency

to stand trial and to waive counsel and temporarily suspended the

proceedings on October 16. A jury found Naddi competent to

stand trial; however, on February 18, 1988, Judge O Rourke

permanently terminated Naddi’s Faretta rights and appointed

counsel. In doing so, the court declared its decision was based on

evidence presented during the competency hearing showing Naddi

suffered from paranoia causing him to have delusions concerning

his present and past attorneys being corrupted by the district

attorney or his murdered wife’s family. The court concluded

Naddi’s decision to waive counsel was influenced by this major

mental disorder to the extent that his action could not be fairly

characterized as voluntary. Judge O’Rourke then presided over

three aborted not guilty by reason of insanity trials during which

time Naddi was represented by a succession of attorneys against

whom Naddi filed numerous Marsden*® motions to have them

involuntarily relieved. During some of the Marsden motions Judge

O’Rourke repeated his opinion Naddi was incompetent to waive

counsel.

Preliminarily, we note that Judge O’Rourke’s ruling on Naddi’s

competency to stand trial, that is to understand the factual nature

5. People v. Marsden (1970) 2 Cal.3d 118.

A-26

of the proceedings against him or to assist counsel in the conduct

of a defense in a rational manner (§ 1367), is qualitatively different

than the mental competency required to make an intelligent

decision regarding self-representation. (See discussion in People

v. Burnett (1987) 188 Cal.App.3d 1314, 1326-1327, and authorities

cited.) Where there is evidence of a defendant’s mental illness, a

trial court should consider psychiatric evidence when deciding a

request for self-representation. (Id. at p. 1329; People v. Salas

(1978) 77 Cal.App.3d 600, 605.)

When Judge O’Rourke announced his decision, he cited the

standard adopted in Curry v. Superior Court (1977) 75 Cal.App.3d

221, 227. There, the court deferred to the United States Supreme

Court decision of Westbrook v. Arizona (1966) 384 U.S. 150, which

distinguished between competency to stand trial and the

competency to make a knowing and intelligent waiver of the right

to counsel. From Curry, Judge O’Rourke noted one

commentator’s interpretation of Westbrook as holding "a

defendant must be free of mental disorder which would so impair

his free will that his decision to waive counsel would not be

voluntary," citing Silten & Tullis, Mental Competency in Criminal

Proceedings (1977) 28 Hastings L.J. 1053, 1066. Further, the court

made its finding immediately following testimony of six doctors to

the effect that Naddi suffered from a major mental disease,

paranoia. Some doctors concluded Naddi had delusions that his

entire array of defense counsel had turned against him because of

a conspiracy with the district attorney’s office and/or his murdered

wife’s family. In support of Naddi’s position he was incompetent

to presently stand trial, his attorney emphasized the conspiracy

obsession regarding his attorneys was the product of his mental

illness. He also emphasized the doctors unanimously agreed he

suffered from a mental illness, and some clearly concluded Naddi

totally lacked insight regarding that illness.

Judge O’Rourke applied the proper legal standards in

evaluating Naddi’s competency to make a choice concerning self-

representation and applied it to substantial psychiatric evidence

A-27

showing he lacked that competency. Accordingly, we find Naddi

was not unconstitutionally deprived of his right to self-

representation during the guilt phase of his trial which then

ensued.

IT

Naddi also argues his Sixth Amendment right to counsel and

self-representation required the trial court to continue the guilt

trial until such time as he regained his competency to choose self-

representation. He cites no authority for this proposition, made no

motion for continuance and does not suggest he was at all inclined

to agree to waive his constitutional right to a speedy trial. We

hold there is no sua sponte duty on the trial court to continue

trials of persons mentally competent to stand trial (§ 1368) who

are presently mentally incompetent to voluntarily and knowingly

waive their rights to an attorney on the mere possibility that

sometime in the future they may achieve that enhanced level of

competency.

We reject Naddi’s argument that a finding he was not

competent to make a knowing choice as to whether to exercise his

right of self-representation is the functional equivalent of finding

him mentally incompetent to conduct his own defense in a rational

manner, which would require criminal proceedings to be stayed

pursuant to section 1367. As explained in Curry v. Superior Court,

supra, 75 Cal.App.3d at page 227, the standard in evaluating one’s

ability to make a required voluntary and knowing Faretta waiver

is not the same as that of section 1368. (See also Westbrook v.

Arizona, supra, 384 U.S. 150.) Naddi cites the holding of Godinez

v. Moran (1993) 113 S.Ct. 2680, for the proposition that

competency to act as one’s own attorney is subject to no higher

test than competency to stand trial. That is the Godinez holding;

however, Naddi attempts to extrapolate it into a holding that the

test for determining whether a "waiver" of one’s right to counsel is

the same. This argument is contrary to express language in

Godinez which recognizes there is a heightened standard for

A-28

adjudging whether a waiver is knowing and voluntary. (Id. at pp.

2687-2688.) Because Naddi’s premise is incorrect, we reject his

conclusion that he was convicted while legally incompetent.®

III

Naddi contends Judge O’Rourke lacked jurisdiction to “either

ignore or review" the earlier Faretta ruling made by Judge Tharp

which had granted him the right to represent himself. Although

unclear, it appears Naddi’s jurisdictional argument assumes Judge

O’Rourke countermanded Judge Tharp’s earlier Faretta

determination and set it aside because he believed it was error.

On this erroneous assumption Naddi argues an order made in one

department of a superior court cannot be ignored or overlooked

by another department because under California Constitution

article VI, section 4 jurisdiction is vested in the court and not in a

particular judge or department. (Citing In re Kowalski (1971) 21

Cal.App.3d 67, 70.) However, the record shows Judge O’Rourke’s

determination rested upon his perception of Naddi’s present

competency from personally observing Naddi’s conduct and

statements, and considering the psychiatric testimony.

Although we have found no case directly on point, decisional

dictum in People v. Clark (1985) 168 Cal.App.3d 91, 95, suggests

it is conceivable that a defendant’s conduct during criminal

proceedings might be so deficient or irrational as to indicate that

6. Although the question of whether Naddi was mentally

competent to waive counsel was not the issue given to the section

1368 jury to determine, the question was asked of various testifying

psychiatrists. Dr. Donald Duff believed Naddi’s delusions adversely

affected his ability to reason and make a judgment as to whether he

should represent himself. Dr. E. W. Klatte gave the same opinion.

Dr. Richard Rappaport agreed. On the other hand, Drs. William

Vargas and Bernard Hansen believed Naddi was capable of making

a free choice to waive counsel and represent himself. Dr. Kaushal

Sharma also believed Naddi was competent to make a voluntary

waiver.

A-29

a prior correct Faretta determination should be reconsidered in the

interest of justice. In Clark, the court concluded there was no sua

sponte duty to reconsider the previous finding of Faretta

competency mid-trial merely because of a defendant’s eccentric or

bizarre behavior. However, it specifically noted that evidence of

a defendant’s history of psychiatric problems was not brought to

the court’s attention until after trial (People v. Clark, supra, 168

Cal.App.3d at p. 96), implying the trial court might have been held

to a different standard had there been evidence suggesting an

impaired mental state. Here, not only was there current

psychiatric evidence to explain Naddi’s observed delusional and

irrational comments relating to attorney conspiracy, there was

evidence of Naddi’s previous finding of mental incompetency and

state hospital commitment. Judge O’Rourke’s inquiry was

exhaustive and pursued in the interest of justice.

IV

At the completion of the guilt phase and the mistrial of the

first sanity phase trial, Naddi again moved to proceed pro per.

The court appointed psychiatrists to again examine Naddi and

present evidence on the Faretta issue. When the court advised

Naddi it intended to appoint Attorney Raymond Murphy to

represent him in this proceeding, Naddi requested a different

appointment due to the fact Murphy had represented him in

earlier proceedings and had expressly declared a belief Naddi was

incompetent to represent himself. Murphy did appear at the next

hearing and was appointed to represent Naddi. When Naddi again

objected that Murphy would take a position opposite to his on the

competency issue, the court inquired. Murphy responded that he

had not yet seen all the doctors’ reports, but the ones that he had

seen indicated Naddi was capable of waiving his right to counsel.

The court then asked Naddi, "Does that answer your question?"

Naddi responded, "Yes, Your Honor." The court admonished

Murphy that if he found a reason for not going forward with this

representation he should advise the court and the court would find

another attorney. When the case was called, the court again

aii a iA aid

A-30

inquired of Murphy as to whether he was going to assert Naddi’s

right to represent himself to which Murphy responded that most

reports indicated Naddi was competent to make the election.

Naddi made no further objection and the hearing proceeded.

During the examination of the doctors, and the examination of

Naddi himself, Murphy vigorously emphasized points of evidence

most favorable to Naddi’s position. During argument, he

emphatically declared the weight of the evidence tilted heavily in

favor of Naddi’s competence to make a knowing waiver of counsel,

as well as to represent himself. Naddi, who had been most

assertive in earlier expression of concern with Murphy’s ability to

provide adequate representation, made no comment evidencing

dissatisfaction with Murphy’s actual performance. We find it to

have been professional and totally directed toward achieving the

competency result Naddi preferred, contrary to the vituperative

characterization in Naddi’s brief. The fact Judge O’Rourke was

unpersuaded by Murphy’s advocacy and that all but one

psychiatrist believed Naddi was mentally competent to make a

knowing waiver of counsel does not, on this record, reflect

inadequacy of Murphy’s representation. The court stated it relied

on Dr. Rappaport’s clear opinion that Naddi continued to be

delusionally incapable of making a rational decision. The court

was entitled to give greater credence to Dr. Rappaport’s opinion

than the other psychiatrists after evaluating the opinions in light of

its own extensive observations of Naddi’s conduct which, in regards

to attorneys, it found corroborative of Dr. Rappaport’s conclusion

that Naddi’s ability to make a knowing and rational Faretta choice

was substantially impaired by his delusions.

V

After the third sanity phase trial was mistried, Judge

O’Rourke was removed from the case. The matter was referred

to the presiding department where Naddi promptly brought a

Marsden motion against his present attorneys and advised the

court he had refused to cooperate with and talk to his attorneys

and would continue to do so in the future. Naddi advised the

EAP AE

MERE BIT MEI ek dE)

A-31

court he objected to the fact his attorneys were spending time

reading the thousands of pages of transcripts generated during the

(1) guilt, (2) competency, and, (3) aborted sanity trials,

commenting that he had told them those transcripts contained

errors. However, he affirmed that although he had personally

identified numerous errors in those transcripts he refused to

identify them to his attorneys. When the court denied his motion

to substitute attorneys, he asked the court for the right to

represent himself. The motion was summarily denied and the

matter assigned to Judge Edwards. Naddi then asked Judge

Edwards for the right to represent himself during a hearing in

which Naddi denied his paranoia regarding his attorneys conspiring

to work against his stated interest. "It’s obvious now they

[attorneys] are cutting away on me so that -- they did the same

thing in the past and now its another story that is repeating itself

cutting my progress to my pro per status." Naddi faults Judge

Edwards’s treatment of his oral request of May 31, 1990 as unduly

abbreviated; however, only one month before, the court had

denied Naddi’s written request for self-representation and stated

it had no doubt that, based upon the court’s observation of Naddi,

the psychiatric diagnoses of delusions were correct and he

presently lacked the mental capacity to make a knowing and

intelligent waiver of counsel. Although Naddi now contends Judge

Edwards denied him a Faretta hearing, the record shows that is

incorrect. Although it was not a hearing in which psychiatric

testimony was again taken, the court’s remarks show it considered

evidence taken at the previous Faretta hearing and evaluated it in

light of its own current observations. It was in light of all these

facts the court concluded Naddi continued to be affected by

conspiratorial delusions regarding all attorneys to the extent he

could not make a rational, intelligent choice between representing

himself or having counsel. On this record, there is no showing of

an abuse of discretion in the court’s finding.

A-32

THE MIRANDA ISSUE

Shortly after Naddi was arrested, he waived his Fifth

Amendment rights after being properly admonished pursuant to

the requirements in Miranda v. Arizona, supra, 384 U.S. 436.

During the interrogation Naddi was asked whether he would “like

to see someone tonight, a psychiatrist or someone[?]" Presumably

the interrogating officer was less solicitous about Naddi’s well-being

than obtaining a psychiatric evaluation as close to the time of the

murders as possible. After Naddi said no, the officer stated, "You

don’t need to see that?" Naddi replied at first that he might, but

did not know and finally that "well, it doesn’t hurt." Shortly

thereafter, Naddi was introduced to Dr. Griswold, a psychiatrist,

and Dr. Dickson, a psychologist, with the representation they

would ask him some questions. Naddi responded, "All right" and

the officer then proceeded to again Mirandize him. Naddi again

waived his Miranda rights and the interrogating officer left the

room. Before examining Naddi, Dr. Griswold made it clear that

he and Dr. Dickson had been asked to examine him on behal: of

the district attorney and taat he would report to that office.

Further, that the proceeding would not be confidential. Naddi

responded, "Okay." The results of this examination were in fact

reported to the district attorney’s office and were considered by

each expert who testified at the various sanity phases after Naddi’s

motion to suppress for violation of Miranda was denied.

Naddi now claims he was goaded by the interrogating officer

into agreeing to speak to Dr. Griswold after he had already

unequivocally indicated he did not wish to submit to psychiatric

examination or interrogation. Although Naddi replied "No" when

initially asked if he would like to see a psychiatrist, the

interrogating officer’s ensuing comments can hardly be interpreted

as designed to overreach Naddi’s will or characterized as goading.

In context, the above dialogue immediately followed an inquiry

from the officer whether Naddi had been seeing a psychiatrist for

any problem. Naddi stated he had called the psychiatric hotline to

arrange an appointment for his wife concerning their problems

A-33

approximately four days earlier, but that he had not been seeing

a counselor for himself. It was then he was asked whether he

would like to see someone like a psychiatrist that evening and he

responded "No." The officer inquired, "You don’t need to see

that?" Naddi replied, "I might myself, I don’t know." When the

officer replied “If you want that we can arrange it," Naddi

essentially acquiesced.

Naddi’s challenge on appeal is specific: That his initial "No"

response was an unambiguous indication he wished to avoid

further questioning on the subject of psychiatric examinations. He

analogizes this colloquy as an indication of his right to remain

silent. (Citing Michigan v. Mosley (1975) 423 U.S. 96.) However,

Naddi’s initial response cannot be fairly construed as an invocation

of his Fifth Amendment rights to remain silent. The general

interrogation continued after the colloquy concerning the officer’s

willingness to arrange a meeting with the psychiatrist if Naddi so

chose. Further, Naddi was again advised he had the right to

remain silent and not speak to Dr. Griswold before that

examination occurred, and Dr. Griswold made it very clear that the

questions and answers would not be confidential but would be

provided to the prosecuting attorney. Since Naddi had just been

advised that anything he said could and would be used in court

against him, we find no Miranda violation.

SENTENCING *

The court imposed a sentence of life without possibility of

parole. However, in articulation the court stated:

"The defendant is to serve an additional two years as to

each allegation of P.C. 12022.5 in counts 1, 2, 3, 4, 5 to

run consecutively to each count and consecutive to each

other, for a total term of 135 years to life. Per P.C.

190.2(a)(3), special circumstance, the term is life without

the possibility of parole."

eT

A-34

Naddi characterizes this as imposing a consecutive sentence of life

without possibility of parole to 5 consecutive sentences of 27 years

to life. In fact, Naddi argues that sentencing him to a 25 year to

life sentence on one murder while consecutively sentencing him to

another 25 year to life sentence for another murder, the latter

which served as a basis of the special circumstance, punishes him

for one murder twice in violation of section 654. However, the

jury verdicts on each of the five counts required a sentence of life

without possibility of parole. That sentence was imposed as

required by law. Although the People agree the imposition of

each of the five life without possibility of parole sentences

consecutively could be accurately described as redundant, in any

event the actual sentence is life without possibility of parole.

Naddi does not argue that consecutive life without possibility of

parole sentences are unauthorized. He only argues the

determinate sentences also purported to be imposed consecutively

to the sentence of life without possibility of parole. However, this

misreads the abstract of judgment which merely recites the

determinate sentences for each count to which Naddi will be

subject should the life without possibility of parole special

circumstance sentence be vacated on any count.

Alternatively, Naddi argues imposing both two 27 year to life

sentences for two of the murders and then imposing the

punishment of life without possibility of parole by using those same

two murders constitutes a direct violation of section 654. That is,

he argues section 654 precludes punishing one murder separately

and then inflicting additional punishment by increasing punishment

for a second murder from 25 years to life to life without possibility

of parole. In People v. Price (1991) 1 Cal.4th 324, 492, the

Supreme Court asserted: "Section 654 does not preclude separate

punishment for crimes of violence committed against separate

victims." Price is acknowledged by Naddi who, however, attempts

to distinguish it. In Price, the court resolved the issue of whether

section 654 precluded punishment for one murder simply because

it was used as a second special circumstance for a second. The

first murder was not a capital offense for which an indeterminate

A-35

A ae Clge Sr Obes Fb CISL. AAS CS ort ae

ented

RGR SET

ae i Sy eres

term of 25 years to life was imposed. For the special circumstance

murder, the sentence was death. Naddi argues the facts of Price

significantly differ from this case where five life without possibility

of parole sentences were imposed and make the Supreme Court’s

section 654 holding in Price not applicable. However, the

Supreme Court did not base its conclusion on the specific facts of

that case, but cited its earlier holding in People v. Beamon (1973)

8 Cal.3d 625, 638, footnote 10, for the plain proposition that

section 654 does not preclude separate punishment for crimes of

violence committed against separate victims. That is clearly the

case here, regardless of the type of sentences imposed. Granted,

the Supreme Court in Price does go on to state: "Moreover,

defendant will be required to serve the sentence for the [first]

murder only in the event the death sentence for the [second]

murder is set aside." (People v. Price, supra, 1 Cal.4th at p. 492.)

However, that comment is merely an aside and is not, as Naddi

would urge, the basis for its conclusion regarding the applicability

of section 654 to crimes of violence against separate victims.

CULBRETH ISSUE

The court imposed a separate two-year gun use enhancement

to each of the five indeterminate terms. Naddi argues that four of

these must be set aside under the authority of In re Culbreth

(1976) 17 Cal3d 330% Culbreth holds that only one

enhancement may be imposed on multiple counts involving

multiple victims of violent crime for any charged offenses which

are incident to one objective and effectively comprise an indivisible

transaction. In People v. King, supra, 5 Cal.4th 59, the Supreme

Court permitted only one enhancement where the defendant

robbed a drug store at gunpoint and shot two attendants, noting

7. Culbreth’s holding relevant to this issue was recently overruled

in People v. King (1993) 5 Cal.4th 59, 79-81. However, the ruling in

King was prospective only and the court ordered it not be applied

retroactively to crimes committed prior to the finality of its King

decision.

A-36

both victims were intended from the outset and there was only a

brief time gap between the shootings which occurred at the same

location. It distinguished cases such as People v. Pride (1992) 3

Cal.4th 195, 269, which imposed separate enhancements for

stabbings occurring at least 30 minutes apart in different areas of

an office building, and People v. White (1981) 117 Cal.App.3d 270,

284, where a defendant reloaded his gun and traveled from one

side to the other of a city hall to commit separate killings.

Further, it approved the resolution hypothetically discussed in

People v. Raby (1986) 179 Cal.App.3d 577, to the effect that if a

second victim had unexpectedly appeared on the scene causing the

defendant to react to the turn of events by shooting, multiple

firearm use enhancements would have been permitted. (See

People v. King, supra, 5 Cal.4th at p. 81.)

Here, Naddi reloaded his gun on numerous occasions and at

one time had to go obtain additional ammunition.

Naddi does not cite any facts of this case which show that he

comes within the Culbreth rule. His argument consists only of a

bare conclusion that his "single use of a firearm comes within the

Culbreth rule." (For that matter, the People’s brief is not very

helpful.) In any event, Naddi’s loading of a firearm, then walking

from room to room to shoot four sleeping persons and then

walking back downstairs to shoot his wife sitting at a table is hardly

akin to the commission of a "single frenetic act of violence" which

resulted in multiple victims described in Culbreth. Here, there is

not one indivisible transaction, but a separate deliberate seeking

out of five separated victims. Although the shootings occurred

close in time, we conclude they are not part of one indivisible

transaction as contemplated by Culbreth.

A-37

DISPOSITION

The judgment is affirmed.

WE CONCUR:

TODD, J.

BENKE, J.

WORK, Acting PJ.

A-38

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

TOUFIC BADIH NADDI,

Petitioner,

V.

D.R. HILL, WARDEN,

Respondent.

Civil No. 95-0022-J(AJB)

REPORT AND RECOMMENDATION

Filed January 23, 1996

Petitioner, a state prisoner, proceeding pro se, has filed an

Application for a Writ of Habeas Corpus pursuant to 28 U.S.C.

§ 2254 (1988). This Court, having reviewed all of the pleadings

and relevant exhibits submitted by both parties, hereby

recommends as follows: (1) that Petitioner’s application for a Writ

of Habeas Corpus based upon his claims that his conviction was

obta: xed in violation of double jeopardy when the secund and third

sani,’ phase trials were mistried should be DENIED; (2) that

Petitioner’s application for a Writ of Habeas Corpus based upon

his claim that he was denied effective assistance of counsel should

be DENIED; and (3) that Petitioner’s application for a Writ of

Habeas Corpus based upon his claim that he was denied his right

to self-representation should be GRANTED, and that the case

should be reversed and remanded for a new trial.

A-39

BACKGROUND

On September 17, 1990, Petitioner was convicted of five

counts of first degree murder with personal use of a firearm.

Pursuant to his conviction, he received consecutive life sentences

without the possibility of parole and an aggregate term of 135

years to life. Petitioner’s Application for a Writ of Habeas Corpus

in this Court raises four issues: (1) The Petitioner’s conviction was

obtained in violation of the protection against double jeopardy

when a mistrial was declared during the second sanity phase trial

as a result of comments made by the prosecutor during closing

arguments; (2) The Petitioner’s conviction was obtained by a

violation of the protection against double jeopardy when a mistrial

was declared during the third sanity phase trial as a result of

alleged juror misconduct; (3) The Petitioner was denied effective

assistance of counsel when counsel failed to raise double jeopardy

arguments following the mistrials of the second and third sanity

phase trials; and (4) The Petitioner was denied his right to self

representation. Each of these issues were raised in Petitioner’s

Application to the California Supreme Court for review.

Therefore, Petitioner has exhausted his state court remedies and

this Court’s review is proper.”

DISCUSSION OF PETITIONER’S CLAIMS FOR RELIEF

1. Petitioner’s Claim that his Double Jeopardy Rights were Violated

Upon Mistrial of the Second Sanity Phase Trial.

Petitioner claims that his conviction was obtained in violation

of the protection against double jeopardy when, during the closing

1. The unpublished opinion of the California Court of Appeal

sets forth, in great detail, the factual background regarding the five

first degree murder charges. (See Respondent’s Exhibit 1.) To the

extent that a more extensive factual recitation is necessary for

consideration of the claims in this Petition. the Court will set out

those facts in the discussion of those claims.

A-40

arguments of the second sanity phase trial, the prosecutor made

prejudicial comments. Because of the prejudicial nature of the

comments, counsel for Petitioner moved for mistrial and the

motion was granted. Counsel for Petitioner did not, prior to the

beginning of the third sanity phase trial, enter a plea of once in

jeopardy. Therefore, there was no explicit finding by the trial

court whether the prosecutor’s comments were made with the

intent to goad the defense into requesting a mistrial so as to bar

retrial under the principles set forth in Oregon v. Kennedy, 456

U.S. 667 (1982). The California Court of Appeal, however, found

that the trial court implicitly rejected the argument that the

prosecutor made his comments with an intent to goad the defense

into requesting a mistrial. See,Respondent’s Exhibit 1, p. 23.

A. Discussion of the Law.

Pursuant to Oregon v. Kennedy, 456 U.S. 667 (1982), where

a trial is terminated upon the request of defendant, double

jeopardy does not bar retrial absent an intent on the part of the

prosecutor to subvert the protections afforded by the double

jeopardy clause. Id. at 676. This test requires the court to

examine the objective facts and circumstances surrounding the

request for a mistrial, and make a determination or finding of fact

as to whether the prosecutor intended, by his or her conduct, to

provoke the defendant into requesting a mistrial. Id. at 675.

Because the issue of intent regarding the prosecutor’s conduct in

a claim of double jeopardy under Oregon v. Kennedy is a finding

of fact, the finding of the state court is entitled to a presumption

of correctness under 28 U.S.C. § 2254(d) and is reviewed for clear

error. Greyson v. Kellam, 937 F.2d 1409 (9th Cir. 1990); Weston

v. Kernon, 50 F.3d 633, 636 (9th Cir. 1995). In addition, an

evidentiary hearing is necessary only where an examination of the

record reveals that the state court’s finding is not entitled to the

presumption of correctness. Greyson, 937 F.2d at 1415.

A-41

B. Examination of the Trial Court Record.

On August 8, 1989, following the close of evidence in the

second sanity phase trial, the prosecutor began his closing

argument. After the prosecutor argued approximately 40 minutes,

the court broke for lunch and resumed again at 1:30 p.m. The

prosecutor continued his closing argument. Following

approximately another hour of argument, the prosecutor made the

following statements:

All the doctors do agree on one thing, though, this is an

encapsulated delusion, that Mr. Naddi’s delusion is only

in one area. They all agree that he was not having

hallucinations, not hearing the voice of God, no

commands from God. They all agree that he did not feel

controlled, did not feel obligated, and as Dr. Strauss said,

he did not feel powerless, commanded, victimized, so that

he could not resist the will of God or some other force.

The delusion gave him false information, just as Dr. Jaffe

said, just as Dr. McTigue said, just as Dr. Weissberg said,

but it didn’t give him a way out. It left him hanging out

on that limb and he had to go and see what to do about

it and he had to decide for himself what to do about this

bad thing and he made a wrong judgment.

It was his value system, as Dr. McTigue said, not part of

a delusional value system, but he felt child molest was the

worst crime, it was worse than murder. That was his

values, but it was not insane values. Maybe some people

believe that, I don’t know, but it was a value system that

he had built up and he made a decision.

People often feel that they are in the right, they are on

the side of justice, but it is not sufficient to feel justified

and to think that something is right. The question is,

whether or not the person has the capacity to understand

A-42

right from wrong. Mr. Naddi was making those decisions.

He made that decision on his wife, at the time, that she

had morally done something wrong by offering this

money. Habib was committing incest, that was morally

wrong. He was making those decisions, and then no

different than the people who hung Colonel Higgins last

week --

Mr. Crabtree: Objection, your Honor.

Mr. Boles: -- They thought that they were on the side of

right.

The Court: Why don’t you approach?

(OUT OF THE PRESENCE OF THE JURY.)

Mr. Cabtree: That is improper argument, your Honor.

The Court: Why?

Miss Barrett: That is the second reference to the Middle

East. He earlier referred to Allah after he said God’s

will. He also said --

The Court: You think it is an attempt to prejudice and

inflame the jury against Mr. Naddi?

Mr. Barrett: It certainly is. I would make a motion for

mistrial.

Mr. Boles: Your Honor, it is an example of something

that has recently happened and well known.

The Court: Mr. Naddi is of Middle Eastern origin, isn’t

he, he is from Lebanon?

A-43

Mr. Boles: It was an example that was discussed

between myself and Doctor Weissberg. He brought it up

to me.

The Court: I'll order a recess because I am strongly

inclined to grant a mistrial. We will go talk about it.

43 R.T. [8-8-89] 8275-8277 (emphasis added). At this point in

time, the court took an afternoon recess, after which counsel

argued at length about whether a mistrial was proper. The

prosecutor strenuously opposed a mistrial and argued that any

perceived prejudice from the comment comparing Petitioner to the

people who had killed Colonel Higgins could be cured by a strong

admonition by the court to the jury to disregard the comment.

The prosecutor argued that the evidence before the jury showed

that Petitioner was not a Shiite Muslim, like the persons who had

executed Colonel Higgins, but rather was a Marionite Christian.

43 R.T. [8-8-89] 8278, 8281, & 8285. The prosecutor also

attempted to clarify to the court that he did not intend to liken

Petitioner to terrorists, but rather wished to give an example of

people who believe they were justified in what they were doing.

Id. at 8278, and 8281. Following a remark by the prosecutor that

he did not intend to inflame or prejudice the jury, the court stated

as follows: "I’m sure that you don’t want to retry the case anymore

than anyone else does, Mr. Boles, that is probably so. Misconduct

does not require intent. It can come about by negligence as well.

I’m not passing judgment." Id. at 8287. The court went on to

explain, "I would assume that you did it spontaneously, without

premeditation, but that has nothing to do with the prejudicial

effect or whether it can be cured, it is not my role to try to ferret

those things out." Id.

Shortly thereafter, the court recessed for the afternoon,

instructing counsel that any further argument regarding the defense

motion for a mistrial would be heard the following morning. The

court also gave a tentative ruling that it was inclined to grant the

Motion for Mistrial. When court resumed again in the morning,

A-44

the prosecutor continued to argue strenuously against a declaration

of mistrial. Despite the prosecutor’s arguments, however, the court

granted the defense motion for a mistrial and stated as follows:

The defense motion for a mistrial is granted. The court

does not find Mr. Boles’ explanation of his statement or

his interpretation satisfactory. I think in conjunction with

this is an irresponsible attribution to Dr. McTigue that

Mr. Naddi made reference to the will of Allah as quoting

her when she said no such thing in connection with the

blatant reference to Colonel Higgins. That was an |

unjustifiable and outrageous appeal to ethnic and racial

prejudice.

Mr. Boles was well advised at the beginning of the trial

and concurred that it was necessary to keep this trial free

from any possible taint of prejudice against the defendant

because of his origins in the Mideast.

Questions were placed in the questionnaire. It was

prepared jointly by the prosecution and the defense to

elicit from our prospective jurors their attitudes about

persons from the Mideast. It was the practice of both

the defense and the prosecution in the course of the jury

selection to immediately stipulate to the removal from

our panel of any prospective juror who harbored any hint

of prejudice against people from the Mideast.

I believe that the evidence in this case is so closely

weighed where it is well within the range of the evidence

that this jury could have returned a verdict of not guilty

by reason of insanity because of the overwhelming

number now of expert witnesses who are of the opinion

that Mr. Naddi is legally insane.

I just think the weight of the evidence was in Mr. Naddi’s

favor and under the circumstances of this case as it

en ———————

A-45

stands with the testimony before the jury, I believe that

the statements made by Mr. Boles are more than

sufficient to deny Mr. Naddi the possibility of a fair trial

and to tip the scales against him.

43 R.T. [8-8-89] 8309-8311. Thereafter, the court discharged the

jury and set a time to resume jury selection for the new trial.

Because Petitioner’s trial counsel did not enter a plea of once

in jeopardy, there was no subsequent hearing by the trial court to

specifically determine the question of whether the prosecutor's

comments were made with the intent to goad defense counsel into

requesting a mistrial. Upon appeal, the California Court of

Appeal examined the trial court’s record and found that the trial

| court implicitly rejected a finding that the prosecutor had the

| requisite intent under Oregon v. Kennedy. Respondent’s Exhibit

| 1, p. 23. In so finding, the California Court of Appeal focused

upon several factors including: (1) The trial court’s statements

that it was sure the prosecutor did not want to retry the case; (2)

The trial court’s statement that misconduct does not require intent;

(3) The trial court was inclined to immediately grant a mistrial

following the defense motion, but the prosecutor continued to

strenuously oppose the motion for mistrial; (4) The prosecutor

attempted, at length, to explain the purpose of his comments; and,

(5) The prosecutor urged the court to continue the trial and

admonish the jury strongly to disregard his comments. In the

aggregate, the court of appeal found an implicit rejection by the

trial court of any intent by the prosecutor to goad a mistrial.

Upon review of the record of the trial court, the Court

| acknowledges Petitioner’s argument that the trial judge made many

| comments condemning the prosecutor’s remarks. The trial court

expressed its belief that the prosecutor’s comments were extremely

inflammatory and prejudicial, and an appeal to racial prejudice.

Despite such comments, reviewing the record as a whole, this

i Court cannot say that the court of appeal’s finding of lack of intent

on the part of the prosecutor sufficient to bar retrial under Oregon

a eee

A-46

v. Kennedy, »; unsupported by the record. Therefore, this Court

recommends that Petitioner’s application for a Writ of Habeas

Corpus upon his claim that his conviction was obtained in violation

of double jeopardy should be DENIED.”

2. Petitioner's Claim that his Double Jeopardy Rights were Violated

Upon Mistrial of the Third Sanity Phase Trial.

Petitioner claims that his conviction was obtained in violation

of the protection against double jeopardy when, during the third

sanity phase trial, the court granted defense counsel’s motion for

a mistrial based upon a finding of prejudice arising out of juror

misconduct. After being advised that jurors had been exposed to

publicity regarding Petitioner, defense counsel requested that the

trial court declare a mistrial. Petitioner did not join his counsel in

this request, but rather specifically opposed a declaration of

mistrial. After examining the jurors regarding their exposure to

the publicity, and the effects of that publicity on their ability to

serve as jurors in the case, the trial court found that there was

prejudice to the defendant, arising out of juror misconduct. Based

upon that finding of prejudice, and upon the further finding that

such prejudice could not be cured by an admonition to the jury,

the trial ccv ct determined that a mistrial should be declared due

to legal necessity.

2. Respondent also argues that petitioner waived his right to

raise double jeopardy by failure to enter a plea of once in jeopardy

under Cal. Penal Code, § 1016, and that even if double jeopardy was

violated, any violation during the sanity phase would not implicate

the jury’s finding of guilt during the earlier phase of the trial. First,

it is clear that if petitioner had a valid double jeopardy claim under

Oregon v. Kennedy, which trial counsel failed to raise, trial counsel’s

failure to raise a claim of once in jeopardy would amount to

ineffective assistance of counsel, and cause to excuse any procedural

default. Murray v. Carrier, 477 U.S. 478-488 (1986). Further,

because this Court finds that double jeopardy is not imiicated, it

need not reach the question of the effect of double jeopardy in a

sanity phase trial on the guilt phase verdict.

q

4

Z

4

i

j

A-47

A. Discussion of the Law

Double jeopardy does not bar retrial, following the declaration

of a mistrial, if the defendant consents to the mistrial or if the

mistrial is declared as a result of "manifest necessity." United

States v. Tateo, 377 U.S. 463, 467 (1964); Arizona v. Washington,

434 U.S. 497, 505 (1978). The trial court in this case found that

Petitioner was not required to personally consent to a motion for

mistrial and that such a motion is within the realm of decisions to

be made by defense counse! pursuant to People v. Moore, 140 Cai.

App. 3d 508, 513 (1983). A review of federal authorities shows,

however, that the right to consent to the declaration of a mistrial

and forego having the trial completed by the first jury emaneled t:,

hear defendant’s case is a personal right of a defendant, which

cannot be waived by defense counsel. See Weston v. Kernan, 50

F.3d 633, 638 (9th Cir. 1995)("The mistrial declaration without

Weston’s clear acquiescence, deprived Weston of an opportunity

to decide whether he wanted to allow the first jury empaneled [sic]

decide his fate."); United States v. Rich, 589 F.2d 1025, 1032 (Sth

Cir. 1978)(defendant’s attorney was not empowered or authorized,

expressly or impliedly, to waive defendant’s right to finish trial by

the empaneled jury). Theref~re, as Petitioner did not personally

consent to the declaration of mistrial, the trial court’s declaration

of a mistrial may stand only if it was required by "manifest

necessity".

The Ninth Circuit Court of Appeals has set forth standards to

be used by federal courts in determining whether the trial court

properly exercised its discretion in declaring a mistrial without the

consent or over the objection of a defendant. United States v.

Bates, 917 F.2d 388, 394 (9th Cir. 1990). In such a circumstance,

the trial court may declare a mistrial if "an impartial verdict cannot

be reached, or if a verdict of conviction could be reached but

wouid have to be reversed on appeai due to an obvious procedural

error in the trial." Id. at 395. The clearest case is where a reversal

on appeal is imminent -- the "ends of justice" would not be served

in requiring the trial to continue to verdict. Where it is not clear

A-48

that the verdict would be reversed on appeal due to error, the

appellate court, in reviewing the trial court’s decision to declare a

mistrial, should consider the following factors: (1) whether the

trial court heard the opinions of the parties about the propriety of

a declaration of mistrial; (2) whether the trial court considered

alternatives to a mistrial and_has taken the course of action least

harmful to the defendant’s rights; (3) whether the trial court acted

deliberately; and (4) whether the trial court made a determination

of the benefits to defendant of the declaration of a mistrial. Id. at

395-96.

The factual findings of the trial court which underlie the

finding of “manifest necessity" are entitled to a presumption of

correctness under 28 U.S.C. § 2254. Weston v. Kernan, 50 F.3d

633, 636 (9th Cir. 1995). However, the trial court’s finding of the

existence of "manifest necessity," sufficient to justify declaration of

a mistrial without defendant’s consent and even over defendant’s

objection, is an issue of law to be reviewed de novo upon federal

habeas review. Id. The trial court’s determination to declare a

mistrial due to the existence of "manifest necessity" arising out of

juror bias is to be afforded the highest level of judicial deference

upon appellate review. Arizona v. Washington, 434 U.S. at 510;

Weston, 50 F.3d at 638. This level of deference is appropriate

because the trial court

fHjas seen and heard the jurors during their voir dire

examination. He is the judge most familiar with the evidence

and the background of the case or trial. He has listened to

the tone of the argument as it was delivered and has observed

the apparent reaction of the jurors. In short, he is far more

"conversant with the factors relevant to the determination"

than any reviewing court can possibly be.

Arizona v. Washington, 434 U.S. at 513-14.

A-49

B. Examination of the Trial Court Record

On January 23, 1990, a jury was sworn to try the third sanity

phase trial. Following two days of evidence in this third Sanity

phase trial, on January 31, 1990, the trial judge and counsel were

alerted to the fact that several newspapers had run articles the

evening of January 30, 1990 and the morning of January 31, 1990,

regarding the Petitioner. Specifically, the San Diego Union ran

three "teaser" boxes, above the title of the newspaper, one of

which contained a picture of Petitioner along with the title "Prison

Bars Can’t Stop Bonds of Love. Carol Moore Is All Too Aware

Of Obstacles and Why After Marriage To Man Who Killed Five."

The newspaper article, itself, concerned Petitioner’s marriage. It

also contained information that Petitioner’s new mother-in-law

disapproved of the marriage, that Petitioner’s new wife had no

doubt in her mind but that Petitioner had been insane at the time

of the killings, that Petitioner had been tried three times

previously, and that Petitioner had previously been in a mental

hospital in San Bernadino. 48 R.T. [2-1-90] 12819-12820. To the

right of the "teaser" box regarding Petitioner’s marriage was

another "teaser" box which stated "Serial Killer Gets Death

Sentence", which referred readers to a story on another page about

a man sentenced to death for killing three people. 48 R.T. [2-1-90]

12822.

Upon learning of the publicity, defense counsel moved for a

mistrial almost immediately. 47 R.T. [1-31-90] 12727. In light of

the defense request for a mistrial, on January 31, 1990, the trial

court individually polled each of the jurors and alternates to

determine their exposure to the publicity and the effects of such

exposure. 47 R.T. [1-31-90] 12731-12764. The survey of the jurors

revealed that four of the jurors read all or part of the article in the

San Diego Union. 48 R.T. [2-1-90] 12813. One of the jurors who

read part of the article was also very evasive when questioned by

the court about the extent of his exposure to the publicity, and did

not admit, in response to a direct question, that he had spoken

with another juror about the article. 48 R.T. [2-1-90] 12814.

A-50

Another of the jurors who read the article admitted to reading the

article only after first stating he had only been told about the

publicity by his neighbor, which lead the court to find that juror’s

explanations were untrustworthy. 47 R.T. [1-31-90] 12774-75.

Other than the four jurors who had read all or part of the article

in the Union, three other jurors and one alternate said that they

had read the headlines of the paper regarding Petitioner. 48 R.T.

{[2-1-90] 12814.

Following its survey of the jurors on January 31, 1990, the

court entertained extensive argument from both counsel regarding

whether the publicity was prejudicial, the extent of such prejudice

to each party, and whether any prejudice resulting from the

publicity could be cured by the court by dismissing certain jurors

and admonishing the remaining jurors. The court adjourned on

January 31, 1990, and allowed counsel until the next morning to

present additional arguments and authorities regarding the

appropriate action. 47 R.T. [1-31-90] 12808-12810. The following

morning, the court heard additional argument from counsel

regarding possible prejudice from the publicity and the existence

of alternative cures to the prejudice short of a mistrial. The court

also inquired of Petitioner as to whether he joined his counsel’s

request for a mistrial, and learned that Petitioner opposed such a

motion. 48 R.T. [2-1-90] 12812.

In the end the court found that Petitioner need not personally

consent to a mistrial, but that a request for mistrial is a decision to

be decided by defense counsel. The court then granted defense

counsel’s motion for mistrial. In doing so, the court stated as

follows:

I believe that the prejudice caused by our seven jurors

and two alternates seeing the newspaper headline at a

minimum, both as to Mr. Naddi in conjunction with the

headline about Carter creates prejudice that I don’t

believe can be cured by an admonition which I think

could influence the jury and their decision in this case,

A-51

and I think the prejudice is so great that the court

believes it amounts to legal necessity.

I have no confidence that the impression could be

eradicated.

48 R.T. [2-1-90] 12838.

Upon review of the record, this Court finds that the trial

court’s factual findings that actual prejudice existed, and that such

prejudice could not be remedied short of a deciaration of mistrial,

are well supported by the record.” In addition, upon de novo

review of the record, this Court finds that there was manifest

necessity requiring the granting of a mistrial and that the trial court

considered all of the factors as set forth in United States v. Bates,

917 F.2d 388, 394 (9th Cir. 1990). The trial court explicitly

rejected the proposition of defense counsel that prejudice was to

be presumed where there was juror exposure to publicity during

trial, 48 R.T. [2-1-90] 12823, and found that there was actual

prejudice to the defendant due to the jurors’ exposure to the

publicity. 48 R.T. [2-1-90] 12838. The trial court also allowed both

counsel to argue, at great length, about the propriety of declaring

a mistrial. The trial court considered alternatives to a mistrial,

including removing the two jurors who had read the entire article

from the jury and admonishing the remaining jurors to disregard

any information they had learned from the publicity. 48 R.T. [2-1-

90] 12816. In the end, the trial court was particularly concerned

about the prejudicial effect the news of Petitioner’s remarriage

would have upon jurors, who expressed shock upon learning that

someone in his position, i.e. on trial in a death penalty case, would

remarry. 48 R.T. [2-1-90] 12834. Because of all of these

3. Petitioner also argues that the presumption of correctness does

not apply to the trial court’s finding of prejudice because the trial

court erroneously applied a “presumption of prejudice” standard

regarding the exposure of jurors to publicity. However, the trial court

explicitly recognized that such a presumption did not apply. 48 R.T.

[2-1-90] 12823.

A-52

considerations, after a great deal of deliberation and argument, the

trial court concluded that a declaration of mistrial was necessary.

This Court finds, upon de novo review of the record, that

there was manifest necessity requiring the trial court to grant a

mistrial, even over Petitioner’s objection. Therefore, the Court

finds that Petitioner’s claim of double jeopardy based upon the

declaration of mistrial during the third sanity phase trial is without

merit, and recomends that Petitioner’s application for a Writ of

Habeas Corpus based upon this claim should be DENIED.

3. Petitioner’s Claim that He Received Ineffective Assistance of

‘ounsel

Petitioner asserts that he was demied e:iective assistance of

counsel when his trial counsel failed to raise claims of double

jeopardy following the declaration of mistrials in the second and

third sanity phase trials.

A. Discussion of the Law

United States Supreme Court decisions have emphasized that

the Sixth Amendment right to counsel exists “in order to protect

the fundamental right to a fair trial." Lockhart v. Fretwell, 506

US. 364, 113 S. Ct. 838, 842 (1993) (quoting Strickland v.

Washington, 466 U.S. 668, 684 (1984)). Thus, the right to the

effective assistance of counsel is recognized because of the effect

it has on the ability of the accused to receive a fair trial. Id. In

Strickland _y. Washington, the Supreme Court enunciated the

standards for judging ineffective assistance of counsel claims. First,

a petitioner must show that, considering all the circumstances,

counsel’s performance fell below an objective standard of

reasonableness. Id. at 688. To this end, the petitioner must

identify the acts or omissions that are alleged not to have been the

result of reasonable professional judgment. Id. at 690. The court

must then determine whether in light of all the circumstances, the

identified acts or omissions were outside the wide range of

A-53

professional competent assistance. Id. Second, the petitioner must

affirmatively prove prejudice. Id. at 693. Prejudice is found where

"there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have

been different." Id. at 694. A reasonable probability is "a

probability sufficient to undermine confidence in the outcome."

Id.; see also Bonin v. Calderon, 59 F.3d 815, 833 (9th Cir. 1995),

cert. denied, 1995 WL 642028 (Jan. 8, 1996); United States v.

Schaflander, 743 F.2d 714, 717-18 (9th Cir. 1984) (per curiam),

cert. denied, 470 U.S. 1058 (1985).

B. Examination of the Trial Court Record

Petitioner’s claims that his trial counsel was ineffective due to

the failure to raise double jeopardy arguments following mistrials

of the ssecond and third sanity phase trials is not supported by the

record. As discussed above in section 1, Petitioner’s double

jeopardy claim related to the mistrial of the second sanity phase

trial is without merit because there was no intent by the prosecutor

to goad a mistrial, sufficient to bar retrial of Petitioner under

Oregon v. Kennedy, 456 U.S. 667 (1982). It cannot be said that

trial counsel was ineffective for failing to raise a double jeopardy

argument or enter a plea of once in jeopardy, as such arguments

are without merit.

As discussed above in section 2, Petitioner’s double jeopardy

claim related to the mistrial of the third Sanity phase trial is

likewise without merit because such mistrial was correctly declared,

even over the objection of Petitioner, due to legal necessity. Even

if trial counsel erroneously concluded that Petitioner’s personal

consent to the mistrial was unnecessary, such error cannot be said

to have been prejudicial because the trial court was justified in

declaring a mistrial due to legal necessity, even over Petitioner’s

objection.

Petitioner cannot show any error of counsel in failing to raise

claims of double jeopardy following mistrial of the second and

A-54

third sanity phase trials, and, as such, Petitioner was not deprived

of effective assistance of counsel. Therefore, the Court hereby

recommends that Petitioner’s application for a Writ of Habeas

Corpus upon his claim of ineffective assistance off counsel should

be DENIED.

4. Petitioner’s Claim that He Was Denied His Right to Seif-

Representation

Petitioner claims that his conviction was obtaiined in violation

of his right to represent himself pursuant to Faretta v. California,

422 U.S. 806 (1975). Petitioner’s request to represent himself was

originally granted by Judge Tharp on April 8, 19877. 11 R.T. [4-8-

87] 50. However, the case was subsequently reassigned for trial to

Judge O’Rourke. During a hearing before Judge O’Rourke on

September 18, 1987, prior to the commencement of the guilt phase

of the trial, Judge O’Rourke expressed a doubt as to Petitioner’s

competence both to stand trial and to waive his right to counsel.

13 R.T. [9-18-87] 40-41. Thereafter, a competency hearing was

convened pursuant to Cal. Penal Code § 1368, and the jury found

Petitioner competent to stand trial. 20 R.T. [2-11-88] 964.

However, based upon the psychiatric evidence presented at the

1368 hearing, as well as certain other evidence which was

presented outside of the presence of the jury because the court

believed it related only to the Faretta issue, Judge O’Rourke

found, based upon Curry v. Superior Court, 75 Cal. App. 3d 221

(1977), that Petitioner suffered the influences of a mental illness

which made it impossible for him to knowingly or voluntarily waive

his right to counsel and choose to represent himself. 21 R.T. [2-

18-88] 969. Petitioner’s Faretta rights were suspended at that time,

and despite repeated requests throughout the remainder of the

case, Petitioner was not subsequently permitted to represent

himself.

A-55

A. Discussion of the Law

A criminal defendant undoubtedly has a right to represent

himself. Faretta v. California, 422 U.S. 806 (1974). However, the

decision to represent oneself must be made "knowingly and intelli-

gently." Id. at 835 (quoting Johnson v. Zerbst, 304 U.S. 458, 464

(1938)). In addition, it is clear that a criminal defendant may not

be made to stand trial unless he is competent. Pate v. Robinson,

383 U.S. 375, 378 (1966). He must have "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, 402 {2960)(internal quotation marks omitted).

in Westbrook v. Arizona, 384 U.S. 150 (1966), the Supreme

Court issued a two paragraph order reversing and remanding a

criminal conviction because it found that "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."

Id. at 150. Based in part upon Westbrook, several federal courts

of appeals and state courts of last resort had held that the

standard for finding a criminal defendant "competent" to waive

counsel, was higher than the competency standard for standing

trial. See Moran v. Godinez, 972 F.2d 263 (9th Cir. 1992); United

States ex rel. Konigsberg v. Vincent, 526 F.2d 131, 133 (2d Cir.

1975); United States v. McDowell, 814 F.2d 245, 250 (6th Cir.

1987); Blackmon v. Armontrout, 875 F.2d 164, 166 (8th Cir. 1989);

t tes v 874 F.2d 838, 846 (ist Cir. 1989);

Pickens v. State, 292 N.W.2d 601, 610-11 (Wis. 1980).

However, in Godinez v. Moran, the Supreme Court clarified

that the competency standard for waiving the right to counsel is

identical to the competency standard to stand trial. =. ;U.S.__,

113 S. Ct. 2680, 2686-87 (1993). In Moran, the trial court allowed

the petitioner in a death penalty case to discharge his attorneys

A-56

and change his pleas to three counts of first-degree murder to

guilty. Two and a half months prior to the discharge of counsel

and guilty plea, petitioner had been examined by psychiatrists who

found that he was competent to stand trial. Based thereon, the

trial court found that petitioner was competent and that he knew

the nature and quality of his acts. In addition, the trial court found

that petitioner understooc the nature of the charges against him,

was able to assist in his defense against those charges, understood

the consequences of entering the guilty plea, and could knowingly

and intelligently waive his right to counsel. Id. at 2683.

Upon federal habeas review, the district court denied the

petition for a writ of habeas corpus. However, the Ninth Circuit

Court of Appeals reversed the denial of the habeas petition,

finding that the trial court “erroneously applied the standard for

evaluating competency to stand trial [to the question of whether

petitioner was competent to waive counsel], instead of the correct

‘reasoned choice’ standard," and that the record did not show

petitioner was "mentally capable of the reasoned choice required

for a valid waiver of constitutional rights." Moran v. Godinez, 972

F.2d 263, 266-67 (9th Cir. 1992).

Upon certiorari the Supreme Court reversed, holding that the

“competency” standard is the same for waiving counsel as for

standing trial, and that there is no "heightened" standard of compe-

tency for waiving the right to counsel. 113 S. Ct. at 2687; see also

United States v. Arlt, 41 F.3d 516, 518 (9th Cir. 1994)("If Arlt was

competent to stand trial, he was competent to choose to proceed

pro se."). In addition, the Court held that the use of the phrase

“competent to waive counsel" as used in Westbrook v. Arizona, was

merely “a shorthand for the ‘intelligent and competent waiver’

requirement of Johnson v. Zerbst.". Moran, 113 S. Ct. at 2688.

"Thus, Westbrook stands only for the unremarkable proposition

that when a defendant seeks to waive his right to counsel, a

determination that he is competent to stand trial is not enough; the

waiver must also be intelligent and voluntary before it can be

accepted." Id.

wm se ee

tae

ee a Pe Te te ee en, iewtlk.: Beare

Pe es iene MeN Te Pee? aes erent Coe Sa Be mee Sn

A-57

Therefore, there is no distinction between the level of mental

capacity or competence necessary under the requirements of Due

Process pursuant to Dusky v. United States, 362 U.S. 402 (1960)

in order for a criminal defendant to be able to stand trial, and the

mental capacity or competence necessary under Faretta fo. a

criminal defendant to be able to waive his right to be represented

by counsel. All that is required for a criminal defendant to waive

his right to counsel is that the person be mentally competent to

stand trial, and that the person make a knowing and voluntary

waiver of the right to be represented by counsel. "In this sense

there is a ‘heightened’ standard for ... waiving the right to

counsel, but it is not a heightened standard of competence."

Moran, 113 S. Ct. at 2687 (emphasis in original).

The i cath Circuit Court of Appeals has not provided a

specific formula to be used in determining whether a criminal

defendant’s decision to waive the right to counsel is knowing and

intelligent. United States v. Arit, 41 F.3d 516, 520 (9th Cir. 1994).

However, some guidance is provided in United States v. Mohawk,

20 F.3d 1480, 1484 (9th Cir. 1994):

In particular, we require proof that the defendant

understood his or her constitutional right to have a

lawyer perform certain core functions, and that he or she

appreciated the possible consequences of mishandling

these core functions and the lawyer’s superior ability to

handle them.

(Internal quotations omitted). As distinguished from the inquiry

as to a defendant’s mental capacity, which focuses on a defendant’s

ability to understand the proceedings, the inquiry as to whether a

defendant is "knowingly and voluntarily" waiving his right to

counsel requires that a defendant 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 (quoting Adams v.

A-58

United States, 317 U.S. 269, 279 (1942)); see Moran, 113 S. Ct. at

2689, fn. 12 (distinguishing between the two inquiries).

The trial court in the present case found that Petitioner’s

mental i'Iness rendered him incapable of making a knowing and

voluntary waiver of his right to counsel based upon the authority

of Curry v. Superior Court, 75 Cal. App. 3d 221 (1977). In Curry

the court cited Westbrook v. Arizona, 384 U.S. 150 (1966), as

discussed above, for the proposition that there is a distinction

between competency to stand trial and competency to make a

knowing and intelligent waiver.

Commentators have interpreted Westbrook to mean that

while a defendant may be competent to stand trial, he

may not be competent to waive counsel] .... From this

they derive the formula that "a defendant must be free of

mental disorder which would so impair his free will that

his decision to waive counsel would not be voluntary". . . .

Thus, a Johnson v. Zerbst (1938) 304 U.S. 458 standard

of an “intentional relinquishment or abandonment of a

known right or privilege" is met if the trial court makes

the factual determination that the defendant is free of

such a mental disorder and indicates, on the record, that

he is aware of the consequences of his request.

~

Curry, 75 Cal. App. 3d at 227 (citations omitted). The court in

Curry clearly relied upon a perceived distinction in Westbrook

between the competency to stand trial and a_ heightened

competency to waive counsel, which distinction was rejected by the

Supreme Court in Moran. Even California courts have now

recognized that cases, such as Curry, which rely upon a "free of

mental disorder" standard for determining whether a defendant

may waive his right to counsel are per se inconsistent with Moran.

See People v. Hightower, 96 Daily Journal D.A.R. 392, 395 (Jan.

10, 1996) ("Because the trial court properly found appellant

competent to stand trial, it necessarily follows that the trial court

A-59

erred in denying appellant’s motion for self-representation. The

two rulings are simply antithetical.").

Respondent’s answer to the Petition in this case makes no

attempt to distinguish, explain or otherwise address the impact of

the Supreme Court’s decision in Moran upon this case. Instead,

Respondent continues to cite Westbrook v. Arizona, and Curry v.

Superior Court and other California appellate court decisions

which pre-date Moran. In addition, a review of the written

decision of the California Court of Appeal, dated J anuary 7, 1994,

shows that Moran was not addressed in that court. Therefore, this

Court must analyze the trial court’s finding that Petitioner herein

did not make a knowing and voluntary waiver of his right to

counsel. Whether a waiver of constitutional rights is knowing and

voluntary is a mixed question of fact and law which is to be

reviewed de novo. Moran v. Godinez, 40 F.3d 1567, 1575 (9th Cir.

1994).

B. Examination of the Trial Court Record

_ Having expressed a doubt about Petitioner’s competency both

to stand trial and to waive his right to counsel, Judge O’Rourke

suspended both the proceedings and Peti*ioner’s right to represent

himself. 13 R.T. [9-18-87] 40-41. On January 26, 1988, a

competency proceeding, pursuant to Cal. Penal Code § 1368,

commenced to determine whether Petitioner-was-eompetent to

stand trial. 15 R.T. [1-26-88] 156. During this hearing, the Court

heard testimony, both in the presence of the jury and outside the

presence of the jury, from 6 psychiatrists: Dr. Donald Duff, Dr.

Ernest Klatte, Dr. William Vargas, Dr. Bernard Hanson, Dr.

Richard Rappaport, and Dr. Kaushal Sharma.

In the presence of the jury, the psychiatrists testified regarding

whether Petitioner was competent to stand trial. The jury was

instructed that Petitioner

A-60

is deemed mentally competent to be tried for the crime

charged against him, one, if he is capable of

understanding the nature ©: purpose of the proceedings

against him and, two, if ue comprehends his own status. -

and condition in reference to such proceedings and,

three, if he’s able to assist his attorney in conducting his

defense in a rational manner.

20 R.T. [2-11-88] 899. Based upon the testimony of the

psychiatrists, the jury found that Petitioner was competent to stand

trial. 20 R.T. [2-11-88] 964.

Outside the presence of the jury, Judge O’Rourke iieard

testimony from the psychiatrists bearing on the issue of Petitioner’s

"competency" to waive his right to counsel. Judge O’Rourke asked

each of the psychiatrists to render their opinion of whether

Petitioner was competent to waive his right to counsel based upon

the standard as set forth in Curry v. Superior Court, 75 Cal. App.

3d 221 (1977). Specifically, Judge O’Rourke advised the testifying

psychiatrists that the appropriate standard was that "a defendant

must be free of mental disorder which would so impair his free will

that his decision to waive counsel would not be voluntary." 18 R.T.

[2-8-88] 532. Judge O’Rourke wanted the psychiatrists to opine as

to whether the Petitioner’s choice to represent himself "is made

rationally rather than made as a result of a mental illness." 17

R.T. [2-4-88] 433.

Based upon the standard of "competency" to waive counsel set

forth by Judge O’Rourke, Dr. Duff opined that Petitivaer’s

decision to represent himself was based in substantia! part upon

Petitioner’s paranoid delusions that the District Attorney and all

of the attorneys representing Petitioner had been bought off by his

former wife’s family. 17 R.T. [2-4-88] 435-36. Dr. Klatte also

opined that Petitioner was incompetent to make a decision to

waive his right to counse] because of his paranoid delusions. 17

R.T. [2-4-88] 442-44. Dr. Rappaport testified that Petitioner

suffered from a paranoid condition, and that Petitioner’s delusions

A-61

played a one hundred percent role in his decision to waive his right

to counsel. 18 R.T. [2-8-88] 597.

Dr. Vargas testified that although Petitioner suffered from

delusional jealousy regarding his former wife, he believed that

paranoia did not affect Petitioner’s competency to waive his right

to counsel. 18 R.T. [2-8-88] 534. Dr. Vargas believed that

Petitioner’s distrust and suspicions concerning his attorneys was

based, at least fifty percent, upon his culture. 18 R.T. [2-8-88] 535,

537. Dr. Hansen agreed in all respects with Dr. Vargas’ testimony

regarding Petitioner’s competency to waive counsel. 18 RT. [2-8-

88] 539. Dr. Sharma testified that Petitioner’s ideas about his

attorneys were misperceptions rather than delusionally-based ideas,

and that Petitioner couid voluntarily and knowingly waive his right

to counsel despite these misperceptions. 19 R.T. [2-9-88] 855-58.

Aside from the psychiatric testimony regarding whether

Petitioner had a mental illness which influenced his decision to

waive his right to counsel, Judge O’Rourke undertook no other

inquiry which would bear upon whether Petitioner knowingly and

voluntarily sought to waive his right to counsel. Judge O’Rourke

made no attempt to advise Petitioner of the advantages anu

privileges associated with being represented with counsel, and of

the disadvantages and dangers associated with self-representation

in a capital murder case. Compare 11 RT. [4-8-87] 33-50 (Judge

Tharp engaged in dialogue with Pe. sioner to advise him of factors

necessary to make an informed «1d voluntary choice to represent

himself and waive his right to counsel, and Petitioner

acknowledged his understanding of Judge Tharp’s advice in that

regar@).

Once Petitioner was found competent to stand trial, the issue

before the trial court was no longer whether due process required

~ that Petitioner be protected from proceeding to trial without the

aid of counsel. Rather, under Moran, 113 S. Ct. 2680 (1993), the

sole remaining issue on Petitioner’s attempt to assert his right to

represent himself pursuant to Faretta was whether the Petitioner’s

A-62

waiver of his right to counsel was "knowing and voluntary." The

inquiry conducted by the trial court, which included only the taking

of psychiatric testimony regarding Petitioner’s state of mind, was

insufficient to determine whether Petitioner’s waiver of his right to

counsel was "knowing and voluntary." The record reflects that at

least at one point in time, approximately nine months prior to

Judge O’Rourke’s decision to deny Petitioner’s request under

Faretta to represent himself, Petitioner understood the dangers

and disadvantages associated with self-representation and

voluntarily waived his right to counsel. See 11 R.T. [4-8-87] 33-50.

In addition, as Respondent concedes, "Judge O’Rourke believed

Naddi to be intelligent, well-educated and capable as long as Naddi

was not laboring under delusions which might interfere with his

mental capacity." Respondent's brief, p. 66 (referring to 13 R.T.

[9-18-87] 46).

The trial court’s finding that Petitioner could not make a

knowing and voluntary waiver of his right to counsel was based

upon an the application of an incorrect standard of law. The trial

court's finding that Petitioner was "incompetent" to waive his right

to counsel is per se inconsistent with the jury’s finding that

Petitioner was competent to stand trial in light of the authority of

Moran v. Godinez, 113 S. Ct. 2680 (1993). The trial court made

no further inquiry of Petitioner regarding his knowledge of the

risks and consequences of representing himself, did not ascertain

whether the Petitioner understood those risks and consequences,

and did not determine whether Petitioner’s request to represent

himself pursuant to Faretta was asserted with full knowledge and

understanding of those risks and consequences.

For all of these reasons, the trial court’s conclusion that

Petitioner’s waiver of his right to counsel, and assertion of his right

to self-representation, was not voluntary and intelligent was

erroneous. "The improper denial of the right to self-representation

is ‘per se prejudicial error’ and thus requires automatic reversal of

a criminal conviction." United States v. Arlt, 41 F.3d 516, 524 (9th

Cir. 1994)(quoting Savage v. Estelle, 924 F.2d 1459, 1466 (9th Cir.

A-63

1990), cert. denied, 501 U.S. 1255 (1991)); see also Adams vy.

Carroll, 875 F.2d 1441, 1445 (9th Cir. 1989) ("The denial of the

right to self-representation is not amenable to harmless error

analysis."). Therefore, it is the recommendation of this Court that

the Petitioner’s application for a Writ of Habeas Corpus, based

upon his claim that he was denied his right to self-representation,

should be GRANTED, that Petitioner’s conviction should be

reversed, and the case should be remanded for a new trial.

5. The Record on Appeal

Respondent filed a notice of lodgment in this case, lodging the

Clerk’s transcript (7 volumes) and the Reporter’s transcript (150

volumes). The materials lodged with the Court filled six boxes,

were in no specific order, and were indexed in no way.

The Court finds that very few of the items lodged are of any

relevance to the issues presented in Petitioner’s application.

Therefore, this Court hereby recommends that the items listed in

the attached Appendix A be retained as part of the Court’s record

in this case, and be the sole record for consideration in this case.

This Court further recommends that all remaining items, as listed

in the attached Appendix B, be stricken from the record in this

case and returned to Respondent to be maintained during the

pendency of this matter.

onclusion

It is the recommendation of this Court that Petitioner’s

application for a Writ of Habeas Corpus based upon his claims

that his conviction was obtained in violation of double jeopardy

when the second and third sanity phase trials were mistried should

be DENIED. In addition, it is this Court’s recommendation that

Petitioner’s application for a Writ of Habeas Corpus based upon

his claim that he was denied effective assistance of counsel should

be DENIED. It is this Court’s further recommendation that

Petitioner’s application for a Writ of Habeas Corpus based upon

A 64

his claim that he was denied his right to self-representation should

be GRANTED, and that the case should be reversed and

remanded for a _ new trial. Finally, it is this Court’s

recommendation that the lodged items listed in the attached

Appendix B should be stricken from the record in this case and

returned to Respondent as indicated, and that the lodged items

listed in the attached Appendix A should be deemed the sole

record for consideration in this case.

This report and recommendation of Magistrate Judge

Battaglia will be submitted to the United States District Judge

assigned to this case, pursuant to the provisions of 28 U.S.C.

§ 636(b)(1). Within thirty (30) days after this report and

recommendation is mailed, any party may file written objections

with the Court. The document should be captioned "Objections to

Report and Recommendation." Failure to file objections within

the specified time may waive the right to appeal the District

Court’s Order. Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991).

Dated: 1/23/96

ANTHONY J. BATTAGLIA

United States Magistrate Judge

SREB Gn ee SR

A-65

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

TOUFIC BADIH NADDI,

Petitioner,

Vv.

D.R. HILL, WARDEN,

Respondent.

No. 95-cv-0022 J (AJB)

ORDER ADOPTING MAGISTRATE’S REPORT

AND RECOMMENDATIONS;

CONDITIONALLY GRANTING

WRIT OF HABEAS CORPUS

Filed April 29, 1996

I. Introduction

Petitioner Toufic Badih Naddi filed a Petition for a Writ of

Habeas Corpus complaining of several errors in the state court

proceedings that led to his conviction. Mr. Naddi argued that his

conviction was obtained in violation of double jeopardy, that his

counsel failed to provide effective assistance, and that his right to

self-representation had been wrongly denied.

After full briefing by the Petitioner and the Respondent,

Magistrate Judge Anthony J. Battaglia filed a Report and

Recommendation (the "Magistrate’s Report") rejecting all but one

of these contentions, and recommending a new trial. Petitioner

and Respondent have both filed objections. The objections

together cover the Magistrate’s entire Report, requiring this Court

A-66

to review de novo all findings and recommendations. 28 U.S.C.

§ 636(b)(1) ("A judge of the court shall make a de novo

determination of those portions of the report or specified proposed

findings or recommendations to which objection is made. A judge

of the court may accept, reject, or modify, in whole or in part, the

findings and recommendations made by the magistrate."). The

Court has reviewed the record, the Magistrate’s Report, and the

objections by both sides. For the reasons stated below, the Court

adopts some of the Magistrate’s Report’s findings and all of its

recommendations, and rejects all objections.

II. First Double Jeopardy Claim

Petitioner’s first objection relates to the motion for mistrial

made by defense counsel at the conclusion of the second Sanity

phase trial. Following the prosecutor’s highly prejudicial comments

during closing argument, defense counsel moved for declaration of

a mistrial. The prosecutor opposed the motion and recommended

that the court administer a curative instruction. The trial court

declared a mistrial.

Petitioner argues that his subsequent retrial violated double

jeopardy because the prosecutor had deliberately goaded defense

counsel into moving for a mistrial. Although generally a defense

request for mistrial does not implicate double jeopardy, double

jeopardy would bar a retrial where the prosecutor deliberately

goaded the defense into moving for a mistrial in order to subvert

the protections of the double jeopardy clause. Oregon v. Kennedy,

456 U.S. 667, 675 (1982).

The question is intent; its existence is a factual determination.

Id. As a factual determination, it is entitled to presumption of

correctness so long as it was made by a state court of competent

jurisdiction after a hearing on the merits of the issue. 28 U.S.C.

§ 2254(d). That the finding of no intent in this case was made by

a court of appeals rather than the trial court is of no significance:

section 2254(d) “makes no distinction between factual

A-67

determinations of a state court and those of a state appellate

court," and imposes no procedural requirements other than that

"the habeas applicant and the State or its agent be parties to the

state proceeding and the state-court determination be evidenced

by a ‘written finding, written opinion, or other reliable and

adequate written indicia.” Sumner v. Mata, 449 U.S. 539, 546

(1980).

The state appellate court considered Naddi’s argument that an

inference of intent should be drawn from the fact that the State’s

cas€ was not going well, but found that inference outweighed by

the strength of the first factor. See Respondent’s Answer, Exhibit

1, at 23-24. Petitioner argues that the Magistrate erred in

accepting this finding without reviewing the entire record de novo

to determine: (1) whether the State objected to the motion, (2)

whether the State’s case was going badly, and (3) whether the

State would have gained an advantage from a new trial. See

United States v. Lun, 944 F.2d 642, 644-46 (9th Cir. 1991) (setting

forth three common indicators of intent).

Under section 2254(d), a state court finding is presumed

correct “unless one of the circumstances listed in 28 U.S.C.

§ 2254(d)(1)-(7) exists, unless the determination is not fairly

supported by the state court record, or unless the petitioner shows

by convincing evidence that the factual determination by the state

court is erroneous." Tinsley v. Borg, 859 F.2d 520, 525 (9th Cir.

1990) (citations omitted), cert. denied, 498 U.S. 1091 (1991).

The Magistrate’s Report reviews the record surrounding the

incident of misconduct and concludes that it "cannot say that the

court of appeal’s finding of lack of intent on the part of the

prosecutor . . . is unsupported by the record." Magistrate’s Report

at 7. Based upon this determination, the Magistrate’s Report

recommends that the Petitioner’s application for the Writ be

denied. Id. However, in reviewing a state court factual finding,

the federal court must determine not only whether the

presumption of correctness applies, but also whether the Petitioner

A-68

has rebutted this presumption by “by convincing evidence."

Tinsley, 895 F.2d at 525; see also Lafferty v. Cook, 949 F.2d 1546,

1549 n.1 (10th Cir. 1991) ("The presumption of correctness is not

irrebuttable."), cert. denied, 112 S.Ct. 1942 (1992). The

Magistrate’s Report’s analysis of the Petitioner’s first ground for

granting the writ reflects only the first step in the section 2254(d)

analysis and not the second. Compare Magistrate Report at 11-12

(conducting de novo review of the record even after finding trial

court’s factual findings supported by the record).

However, this Court’s review of the record indicates that the

Petitioner’s evidence does not meet the convincing evidence

standard. Petitioner supplies an analysis of several factors

discussed in the dissent to Oregon v. Kennedy, and argues from

these that the inference of intent to provoke a mistrial is

unavoidable. The Court disagrees. Even granting the petitioner

that the evidence the prosecution had put on to that point was not

so strong as to foreclose a jury verdict of insanity, this Court, like

the state court of appeals, finds the strongest circumstantial

evidence of intent to be found in the prosecutor’s comments in

trying to avoid a mistrial: the prosecutor’s explanation of the

origin of the offending statement, as an idea provided during the

lunch break by one of the prosecution’s experts; and his attempts

to explain away the prejudicial effect of his comments. This

convinced the trial court itself that the comments were made

without intent to provoke a mistrial, see 43 R.T. [8-8-89] 8297

("I'm sure that you don’t want to retry the case any more than

anyone else does, Mr. Boles, that is probably so. Misconduct does

not require intent. It can come about by negligence as well."); it

convinced the Fourth Appellate District, see Respondent’s Answer,

Exhibit 1, at 23-24; and it leads this Court to reject the Petitioner’s

arguments that the inference of intent must be accepted. In short,

the Petitioner’s evidence fails to convince this Court that the state

court finding of no intent was erroneous.

A-69

Il. Second Double Jeopardy Claim

Petitioner’s second objection is based upon the trial court’s

declaration of a mistrial in the third sanity phase trial. The court

declared a mistrial because of several juror’s exposure to

prejudicial publicity. Because Petitioner did not personally consent

to the motion for mistrial, double jeopardy would bar his retrial

unless it was required by "manifest necessity." Weston v. Kernan

50 F.3d 633, 638 (9th Cir. 1995). Manifest necessity may be found

if either (1) proceeding with the empaneled jury would have been

reversible error; or (2) the trial court properly exercised its

discretion in declaring a mistrial. Id.

The trial court found that four jurors read all or part of an

article in the San Diego Union that reported the following

prejudicial information: (1) Petitioner’s new wife’s opinion that

Petitioner had been insane at the time that he had killed his

previous wife and family; (2) that he had spent time in a mental

hospital in San Bernardino; and (3) that this was his third trial. 48

R.T. [2-1-90] 12813, 12819-20. Seven jurors and two alternates at

least viewed the headline, together with the "teaser" link to another

article reporting that a murderer of three had been given the death

penalty. Id. at 12833 (final count). Two jurors were evasive when

questioned about the scope of their exposure to the article; one of

these jurors was identified by other jurors as having told other

jurors about the existence of the article. Id. at 12813-14.

The Court disagrees with the Magistrate’s finding that the trial

court correctly found actual prejudice requiring the declaration of

a mistrial to avoid reversible error. Actual prejudice requires that

the publicity have had the effect of forming an actual opinion in

the mind of one or more jurors that they would not be able to set

aside. Jeffries v. Bodgett, 5 F.3d 1180, 1189 (1993); Irvin v. Dowd,

366 U.S. 717, 723 (1960). The record does not reveal questions

and answers of the individual jurors sufficient to support a finding

of actual prejudice.

A-70

The question is therefore simply whether the trial court

correctly exercised its discretion in .declaring a mistrial. A trial

court properly exercises its discretion if it (1) hears the position of

the parties with regard to a mistrial, (2) considers alternatives, (3)

acts deliberately as opposed to abruptly, and (4) determines

whether the defendant would benefit from a mistrial. Weston, 65

F.3d at 638-39. The level of deference accorded the trial court’s

discretionary decisions varies by context; the decision on whether

to declare a mistrial based on juror bias is accorded "the highest

degree of respect’ and deference." Id. at 638 n.3 (quoting Arizona

vy. Washington, 434 U.S. 497, 510 (1978)).

The record reveals that the trial court entertained extensive

argument from both sides as to the necessity for granting a

mistrial. 48 R.T. [2-1-90] 12815-37. The trial court considered

alternatives such as admonishing the jury, or challenging individual

jurors, id. at 12832, but rejected these as unlikely to be effective,

id. at 12838, or impossible given the number of jurors exposed to

the prejudicial information, id. at 12832-34. The trial court acted

carefully, polling each of the jurors, considering caselaw and the

arguments of counsel, and taking a short recess before rendering

its verdict. Id. at 12812, 12837. The trial court weighed the effect

of the publicity, taking into account that some aspects of the

publicity might be favorable to the defendant (e.g., the statements

by his new wife that she believed he had been insane at the time

of the killings, and his admittance to a mental hospital), while

other aspects of the publicity might be detrimental (e.g., the

comparison to another mass killer implied by the "teaser" link, and

the revelation that this was Petitioner’s third trial).

Id. at 12820, 12817-18. The trial court’s main concern was with the

expressions of shock by all jurors who had been exposed to the

information that Petitioner had remarried. The court was

concerned that this shock, which the jurors were unable to explain,

might be rooted in their antagonism to the idea of this defendant

“walking out the door" should they find him not guilty by reason of

insanity. Id. at 12835-37. In sum, the record supports the

saa

A-71

conclusion that the trial court followed each of the enumerated

factors in exercising its discretion.

The Court agrees with the Magistrate that the trial court’s

exercise of its discretion was proper. This ground for granting the

writ of habeas corpus is therefore rejected.

IV. Ineffective Assistance of Counsel Claim

Petitioner’s ineffective assistance of counsel argument is

dependent upon the previous two arguments. Petitioner argues

that he was denied effective assistance of counsel when his trial

counsel failed to enter "once in jeopardy" claims upon the

declarations of mistrial in the second and third sanity phase trials.

However, as the above analysis indicates, a double jeopardy

argument at either stage would have failed. It is doubtful,

therefore, that Petitioner could satisfy the "unprofessional conduct"

prong of the ineffective assistance of counsel standard, and certain

that he cannot satisfy the "prejudice" prong of the standard.

Strickland v. Washington, 466 U.S. 668, 693-94 (1984) (requiring

proof of "a probability sufficient to undermine confidence in the

outcome" that "but for counsel’s unprofessional errors, the result

of the proceeding would have been different"). This ground for

granting the writ of habeas corpus is therefore rejected.

V. Claim of Denial of Right to Self-Representation

Petitioner’s final claim relates to the denial of his request to

represent himself in the guilt phase of the trial. The Magistrate’s

Report finds that the trial judge applied too high a standard to

determine whether Petitioner was competent to waive counsel, and

conducted insufficient inquiry to determine whether Petitioner

could effectively waive his right to counsel. The State argues that

notwithstanding these errors, the Petitioner’s waiver could not have

been "knowing and voluntary" because it was a product of mental

illness.

A-72

A criminal defendant has the right to waive the appointed

counsel the constitution guarantees him, and to represent himself

at trial. Faretta_v. California, 422 U.S. 806, 807 (1975).

Competency to stand trial implies competency to waive the right

to counsel. Godinez v. Moran, 113 S.Ct. 2682 (1993) (holding that

the standards are the same). Competency, however, only ensures

that the defendant has the ability to waive. A waiver is effective

only if it was "knowing and voluntary." Id. at 2687-88 and 2687

n.12.

The trial judge, relying upon Curry v. Superior Court, 75 Cal.

App. 3d 221 (1977), limited his waiver inquiry to the opinions of

six psychiatrists on whether the Petitioner was "free of mental

disorder which would so impair his free will that his decision to

waive counsel would not be voluntary." 18 R.T. [2-8-88] 532.

Three psychiatrists opined that the Petitioner’s waiver was based

on a paranoid delusion that his wife’s family and the district

attorney had corrupted his attorneys. See 17 R.T. [2-4-88] 435-46

(Dr. Duff); id. at 442-44, 526 (Dr. Klatte); 18 R.T. [2-8-88] 597

(Dr. Rappaport). Three opined that the Petitioner’s waiver was

based not upon delusion but rather upon culture, misperceptions,

or disagreement with counsel over the conduct of his defense. See

id. at 534 (Dr. Vargas); id. at 539 (Dr. Hansen); 19 R.T. [2-9-88]

855-88 (Dr. Sharma). Based upon these opinions alone, the trial

judge found that Petitioner lacked the capacity to make a valid

waiver.

The Magistrate’s Report correctly concludes that the trial

judge applied the wrong legal standard. Curry relied upon the

now-debunked theory that "a distinction exists between competency

to stand trial and competency to make a knowing and intelligent

waiver of the right to counsel." Curry, 75 Cal. App. 3d at 227. In

his ruling on Petitioner’s request to represent himself, the trial

judge expresses sole reliance on Curry, and phrases his inquiry in

terms of "whether Mr. Naddi is competent to waive his right to

counsel." 21 R.T. [2-18-88] 969. This is error. See Moran v.

Godinez, 57 F.3d 690, 698 (9th Cir. 1994) ("Because the two

A-73

standards are identical, one finding of competence suffices for

both."), cert. denied sub nom. Moran v. McDaniel, 116 S.Ct. 479

(1995). The jury’s determination that Mr. Naddi was competent

to stand trial necessarily meant that the was competent to waive

trial counsel: the issue was whether he had "knowingly and

voluntarily" entered his waiver.

The trial judge found that Mr. Naddi’s desire to discharge his

counsel came from his irrational belief that his counsel had been

corrupted to work for the interests of his former wife’s family, and

concluded that this delusion rendered him incapable of making a

“free and knowing waiver of his right to counsel." 21 R.T. [2-18-

88] 970. The State’s argument in support of this ruling essentially

argues that Petitioner’s waiver cannot be considered "knowing and

voluntary" because it was a product of his delusion.’

1. The State’s objections borrow extensively from Judge

Pregerson’s dissent in Moran, in which he argued that the mental

state of the accused is relevant not only to the determination of

competence, but also to whether the waiver was knowing and

voluntary. See Moran, 57 F.3d at 704 (arguing that mental state

should be considered as possibly “subverting” the choice to waive

counsel).

Support for this approach might also be found in two recent

federal cases. Judge Johnston in the Eleventh Circuit recently

Suggested that an effective waiver might not be found where a

defendant’s personality disorder caused him to “overestimate and

overstate his abilities," calling into question his understanding of the

charges and penalties he faced, and his decision to continue in the

face of the “district court’s general admonitions that such a course

was unwise." United States v. Cash, 47 F.3d 1083, 1190 (11th Cir.

1995). Similarly, Judge Wright in the Western District of Missouri

recently granted a writ of habeas corpus where the trial court found

an effective waiver despite psychiatric testimony that the petitioner

had a personality disorder that rendered him incapable rationally

evaluating consequences. Wilkins v. Delo, 886 F. Supp. 1503, 1512

(W.D. Mo. 1995).

A-74

This approach would subvert Moran by using waiver analysis

to add a second level of psychiatric competency evaluation.

Moran, however, equated the standard to stand trial with the

standard to waive counsel because of its belief that the waiver

decision was no different than the other decisions all defendants

are required to independently execute at trial, such as the entry of

guilty pleas. See Moran, 113 S.Ct. at 2686-87; see also id. at 2690

("At common law, therefore, no attempt was made to apply

different competency standards to different stages of criminal

proceedings or to the variety of decisions that a defendant must

make during the come of those proceedings.") (Kennedy, J.,

concurring in part and concurring in judgment). This necessarily

implies that a finding that a defendant is competent to stand trial

means that the defendant is able to understand and voluntarily

render a decision as to whether he should represent himself.”

Support for this conclusion may also be found in the Ninth

Circuit’s treatment of Moran’s ineffective assistance of counsel

claim on remand from the Supreme Court. The claim was based

upon Moran’s counsel’s failure to procure psychiatric reports

specific to issue of his ability to waive counsel. The majority

rejected this ground, stating that testimony as to general

competence need not be supplemented with testimony specific to

the ability to waive trial counsel. Moran, 57 F.3d at 699-700. The

majority limited its waiver inquiry to whether the defendant

appeared to understand the charges against him, the possible

penalties, and the dangers of self-representation.*

2. Thus the district court’s holding in Wilkins that a defendant

found competent to stand trial could not make an effective waiver

because he "did not engage in a true decision-making process," 886 F.

Supp. at 1512, was “incapable of making the decision .. . through

appropriate reasoning,” id., or was unable to “anticipate consequences

and use judgment,” id., was error.

3. The Supreme Court’s citations to cases to elucidate the

concept of effective waiver support the inference that the question is

simply whether the defendant in fact understands the choice he is

A-75

Almost every choice to waive counsel could be said to be a

product of some delusion on the part of the defendant. Cf.

Faretta, 422 U.S. at 834 ("To force a lawyer on a defendant can

only lead him to believe that the law contrives against him.";

speculating that in some "rare" cases the pro se litigant might

actually do better than a trained attorney); id. at 852 (Blackmun,

J., dissenting) (citing the old proverb that "one who is his own

lawyer has a fool for a client"). Once a defendant has been found

competent to stand trial, however, the issue is simply whether the

defendant understands the full ramifications of his decision and

makes the decision without coercion from outside influences. See

Moran, 57 F.3d at 698 (trial court should establish whether

defendant is "aware of the nature of the charges against him, the

possible penalties, and the dangers and disadvantages of self-

representation"); see also Faretta, 422 U.S. at 835 (the defendant

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 decision is made with open eyes") (citation and

internal quotation marks

omitted).

The trial judge conducted absolutely no inquiry of the

defendant. The Magistrate’s Report concludes from this that the

trial court had an insufficient factual background to find that his

waiver was ineffective. The Court agrees.

The Court finds the record insufficient to answer the question

of whether the Petitioner understood "the nature of the charges

against him, the possible penalties, and the dangers and

disadvantages of self-representation," and was not making his

waiver as a product of any outside coercive forces. Moran, 57 F.3d

at 698. Accordingly, the Court must conclude that the rejection of

the Petitioner’s waiver of his right to counsel was error. This error

automatically requires reversal of his conviction. United States v.

making. See Moran, 113 S.Ct. at 2687 n.12.

A-76

Arlt, 41 F.3d 516, 524 (9th Cir. 1994); Adams v. Carroll, 875 F.2d

1441, 1445 (9th Cir. 1989).

CONCLUSION AND ORDER

Toufic Badih Naddi’s Petition for the Writ of Habeas Corpus

is conditionally granted. The Writ shall become unconditional and

permanent unless the State of California commences proceedings

to afford Naddi a trial within sixty days of the date of this Order.

IT IS SO ORDERED.

DATED: April 29, 1996

NAPOLEON A. JONES, JR.

United States District Judge

—

A-77

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

TOUFIC BADIH N ADDI,

Petitioner,

Vv.

D.R. HILL, WARDEN,

Respondent.

No. 95-cv-0022 J (AJB)

ORDER DENYING MOTION

FOR RECONSIDERATION AND

DENYING EX PARTE

APPLICATION FOR A STAY

Filed May 16, 1996

This Court’s April 29, 1996 Order granted Petitioner Naddi’s

request for the writ of habeas corpus unless the state began new

trial proceedings within sixty days. The State asks the Court to

reconsider that ruling in light of the new Antiterrorism and

Effective Death Penalty Act of 1996 (the "Act"), and to reconsider

the form of its order. The State has also requested a stay on the

April 29 Order pending the hearing date of June 10, 1996. Having

examined the State’s moving papers, the Court finds no reason to

wait for an opposition. The Court denies the State’s motion and

its application for a stay.

A-78

1. ect oO tit is t a

The State argues that under the Act’s more deferential

standard of review for state court applications of federal law,

Naddi’s conviction must stand.

The Act modifies 28 U.S.C. § 2254 to prevent the granting of

the writ of habeas corpus for legal error "unless the adjudication

of the claim resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States." 28

U.S.C. § 2254(d). The Court agrees with the State that this

provision of the Act "speak[s] to the power of the court rather

than to the rights or obligations of the parties," so its application

to pending cases would be prospective, not "retroactive." See

Landgraf v. USI Film Products, 114 S.Ct. 1483, 1502 (1994)

(citation omitted).

The legal error involved in this case is that the state courts

applied two different standards of competency to the questions of

whether Naddi was competent to stand trial and whether he was

competent to waive counsel at that trial. The State argues that

because the trial court acted before the Supreme Court announced

that the two standards were the same in Godinez v. Moran, 113

S.Ct. 2682 (1993), its decision cannot be contrary to "clearly

established Federal law, as determined by the Supreme Court."

This is factually incorrect. The Supreme Court issued its opinion

on June 24, 1993. While the trial court’s decision was entered on

February 18, 1988, the opinion of the Fourth Appellate District

was entered on January 7, 1994, well after Godinez. The Fourth

Appellate District opinion approvingly comments that the trial

court "applied the proper legal standards in evaluating Naddi’s

competency to make a choice concerning self-representation and

applied it to substantial psychiatric evidence showing he lacked

that competency." See Respondent’s Answer, Exhibit 1, at 33-34.

As of the day it issued, this decision was contrary to clearly

A-79

established law as determined by the Supreme Court of the United

States.

This case does not require the Court to resolve the questions

that have been raised about the constitutionality of the deferential

standard of review required by the Act:’ ever measured against

the more deferential standard, the state court judgment cannot

stand.

II. Request to Modify Order

The Court’s Order granting the writ of habeas corpus was

conditioned on the state court’s failure to commence new trial

proceedings within sixty days. The State argues that the Court

should not order a new trial until Naddi makes a request for self-

representation. Alternatively, the State asks that the Court change

its order conditioning the writ on the failure to begin a new trial

to an order for a "limited remand." —

The State admits that it has "found no authority on point" for

its argument that the denial of a defendant’s right to self-

representation does not require reversal unless the defendant

demands to represent himself in any subsequent proceeding. The

Court disagrees that it would be a "miscarriage of justice" or allow

the defendant a "second bite of the apple" to permit him to

proceed at his second trial represented by counsel. Whatever

Naddi chooses to do with his right today, he may not be confined

on the basis of a proceeding rendered illegitimate by a structural

error. Cf. Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993)

(structural errors infect entire trial process and require automatic

reversal).

The State’s final argument is that the Court should order a

"limited remand" to permit the state court to apply the correct

1. See 142 Cong. Rec. $3438-43 (daily ed. Apr. 17, 1996)

(statement of Sen. Moynihan).

A-80

legal standard to Naddi’s request to represent himself. The Ninth

Circuit has approved of a limited remand in place of reversal of a

conviction in two situations: (1) where the record is developed but

the trial court did not clearly apply the correct legal standard on

the record, and (2) in order to supplement a factual record devoid

of evidence on a key issue. See United States v. Kimmel, 672 F.2d

720, 722 (9th Cir. 1982); id. at 723-27 (Reinhardt, J., concurring in

part and dissenting in part). Neither purpose would apply to this

case. The record reveals that prior to Judge O’Rourke’s

competency determination, Judge Tharp had conducted a full

investigation into whether Naddi was making his choice free of

outside coercive forces and whether Naddi understood "the nature

of the charges against him, the possible penalties, and the dangers

and disadvantages of self-representation." 11 R.T. [4-8-87] 33-50;

Moran v. Godinez, 57 F.3d 690, 698 (9th Cir. 1994). Thus the

existing record supports the conclusion that Naddi did make an

effective waiver of his right to counsel. This does not demonstrate

with absolute certainty that Judge O’Roarke’s evaluation of Naddi

several months later would have resulted in the same conclusion;

however, it is better evidence than would be produced by a limited

remand for purposes of developing a factual record today.

CONCLUSION AND ORDER

The State’s motion for reconsideration and its application for

a Stay are denied.

IT IS SO ORDERED.

DATED: May 15, 1996

NAPOLEON A. JONES, JR.

United States District Judge

A-81

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TOUFIC NADDI,

Petitioner-Appellant,

Vv.

D. R. HILL; DANIEL E. LUNGREN,

ATTORNEY GENERAL OF THE

STATE OF CALIFORNIA,

Respondents-Appellees.

No. 96-55755

D.C. No. CV-95-00022-NAJ

TOUFIC BADHI N ADDI,

Petitioner-Appellee,

V.

D. R. HILL; DANIEL E. LUNGREN,

ATTORNEY GENERAL OF THE

STATE OF CALIFORNIA,

Respondents-Appellants.

No. 96-55791

D.C. No. CV-95-00022-NAJ

A-82

MEMORANDUM

Filed June 9, 1998

Appeal from the United States District Court

for the Southern District of California

Napoleon A. Jones, District Judge, Presiding

Submitted June 5, 1998”

Pasadena, California

Before: HUG, Chief Judge, KOZINSKI, Circuit Judge

and FITZGERALD,” District Judge.

The district court did not err in granting the writ on the self-

representation issue. Both state courts relied on a distinction

between competency to stand trial and competency to waive the

right to self-representation, and the appellate court decision came

after the Supreme Court held there is no distinction between the

two standards. See Godinez v. Moran, 509 U.S. 389 (1993).

Moran implies that a judge relying on psychiatric evidence must

carefully distinguish between competence to make a waiver and

whether a defendant has actually made a knowing and voluntary

waiver. The state courts ultimately used an incorrect standard by

finding that Naddi was incompetent to waive counsel. However,

a prior state trial judge, Judge Tharp, did investigate whether

Naddi knowingly and voluntarily waived the right to counsel, and

found that he had. The denial of Naddi’s right to self-

‘This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by 9th

Cir. R. 36-3.

“The panel unanimously finds this case suitable for decision

without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4.

The Honorable James M. Fitzgerald, United States District

Court for the District of

This text is long and has been trimmed here. Open the source document for the complete record.