Unpublished Disposition, 886 F.2d 334 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 886 F.2d 334 (9th Cir. 1989)

John LYNCH, Petitioner-Appellant,v.Manfred MAASS, Superintendent, Oregon State Penitentiary,and State of Oregon, Respondents-Appellees.

No. 89-35084.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 12, 1989.* Decided Sept. 20, 1989.

Malcolm Marsh, District Judge, Presiding.

Before SKOPIL, TROTT, and FERNANDEZ, Circuit Judges.


MEMORANDUM*

John Lynch was convicted in an Oregon state court of attempted murder and burglary. He challenges the legality of his detention for that conviction in a petition for habeas corpus, alleging violations of his sixth amendment right to counsel, fifth amendment privilege against self-incrimination, and fourteenth amendment due process right to a fair trial. The district court rejected those arguments and denied the petition. We affirm.

Lynch contends that he did not knowingly and intelligently waive his right to counsel when he requested that his court-appointed counsel withdraw and when he elected to represent himself with the aid of a legal advisor. Such a choice must be made knowingly and intelligently, United States v. Harris, 683 F.2d 322, 324 (9th Cir. 1982), for the choice to proceed pro se involves a waiver of the right to the assistance of counsel. See Faretta v. California, 422 U.S. 806, 835 (1975). To ensure that the waiver is knowing and intelligent, the trial court should discuss "with the defendant, on the record, the nature of the charges, the possible penalties, and the dangers of self-representation." United States v. Rylander, 714 F.2d 996, 1005 (9th Cir. 1983), cert. denied, 467 U.S. 1209 (1984).

The record in this case reveals just such a discussion. The question is whether the court's discussion of the importance of effective legal counsel was sufficient to allow Lynch to make an intelligent and knowing waiver of his right to counsel. While the court did not articulate step by step the nature of the charges, the possible penalties, and the dangers of self-representation that Rylander, 714 F.2d at 1005, and Harris, 683 F.2d at 324, describe as the preferable procedure for ensuring knowing waiver, Lynch's articulate and specific desire to represent himself indicated an appreciation of these factors.

The court dealt specifically and repeatedly with the issue of Lynch's self-representation, giving Lynch several chances to request new counsel, or to have his legal advisor made his attorney of record. Lynch repeatedly affirmed his decision to proceed pro se. The record does not reveal any request by Lynch for appointment of new counsel. To the contrary, Lynch never accepted the court's offer to have his legal advisor made his attorney of record whenever Lynch and the advisor thought it appropriate. Lynch knowingly and intelligently waived his right to counsel by making an informed decision to proceed pro se.

Lynch contends that admission of evidence at his trial that he had falsely identified himself to a police officer prior to receiving Miranda warnings violated his privilege against self-incrimination. The procedural safeguards of Miranda are not required, however, "where a suspect is simply taken into custody," but rather are required "where a suspect in custody is subjected to interrogation." Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Routine inquiry into biographical data does not normally constitute interrogation. United States v. Booth, 669 F.2d 1231, 1238 (9th Cir. 1981).

Here, Lynch may have been "in custody" but was not subjected to "custodial interrogation." Moreover, after Lynch indicated that he wished to speak with an attorney, the officer asked no further questions. We conclude that admission of evidence of a preliminary, pre-Miranda request for a name, without more, does not constitute a violation of the privilege against self-incrimination.

III. A Judge's Incredulous Expression as a Denial of Due Process

Lynch contends that an expression of incredulity on the trial judge's face during Lynch's testimony improperly influenced the jury, and he was thereby denied a fair trial. "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136 (1955). The right to a fair trial requires that the trial judge be neutral, detached, and free from actual bias. Ward v. Monroeville, 409 U.S. 57, 61-62 (1972).

Here, Lynch has shown neither actual bias nor established any actual prejudice which the jury instructions did not cure. While a neutral, detached judge is an essential component in the due process right to a fair trial, a facial expression addressed by a curative instruction does not compromise this right.

AFFIRMED.

 *

The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4

 **

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