Unpublished Disposition, 918 F.2d 181 (9th Cir. 1989)

MEMORANDUM^** 

Catlin Twitty (Twitty) appeals from the district court's grant of summary judgment in favor of the respondent prison superintendent, dismissing his petition for habeas corpus. On this pro se appeal Twitty cites six grounds: (1) that his trial waiver of counsel was not knowing and voluntary because the trial judge erroneously indicated at a hearing that Twitty would not be subject to a minimum sentence under Oregon law if he were convicted of murder; (2) that Twitty's waiver of co-counsel was likewise not knowing and involuntary; (3) that Twitty's waiver of a jury trial was not knowing and involuntary because his comments of record indicated that he did not understand that a "not guilty" vote by a single juror could produce a mistrial; (4) that due process entitled him to an evidentiary hearing as to voluntariness of statements admitted during the prosecution's case; (5) that the prosecution withheld possibly exculpatory evidence; and (6) that the evidence was insufficient to convict him of murder.¹  We affirm.

This court reviews de novo a district court's grant of summary judgment and the denial of a petition for habeas corpus. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.) cert. denied 474 U.S. 841 (1985). The clearly erroneous standard applies to our review of findings of fact. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

Twitty was convicted of murder in the Josephine County, Oregon Circuit Court on December 3 and 4, 1985. His sentence to life imprisonment with a 10-year minimum sentence under Or.Rev.Stat. Sec. 163.115(3)²  was affirmed on appeal. State v. Twitty, 85 Or.App. 98, 735 P.2d 1252, reh'g denied 304 Or. 56, 742 P.2d 1187 (1987).³  The Oregon district court dismissed the petition on August 21, 1989, after granting Respondent's motion for summary judgment. Petitioner's notice of appeal is timely.⁴  This court has jurisdiction under 28 U.S.C. § 1291.

* Twitty first alleges that his waiver of counsel could not have been knowing and voluntary because the state court, at a pretrial waiver of counsel hearing in October of 1985, erroneously indicated that Twitty would not be subject to a minimum sentence under the newly-amended Or.Rev.Stat. Sec. 163.115(3) (b)⁵ , were he to be convicted of murder. "When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must 'knowingly and intelligently' forgo those relinquished benefits." Faretta v. California, 422 U.S. 806, 835 (1974) (citations omitted). Faretta also indicates that the accused "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' " Id. (citation omitted).

Twitty had been represented by counsel at his August, 1985 arraignment, whom he subsequently fired. Petitioner's Brief at 4. Thereafter the County Circuit Court held a hearing on Twitty's competence to represent himself. The court verified that Twitty was making an intelligent, knowing and voluntary waiver of counsel. See Exhibits submitted with the Superintendent's Motion for Summary Judgment, Docket Entry 27, exh. 106, pp. 5-6. The only discussion in the transcript regarding the possible application of the mandatory minimum sentence follows in its entirety:

THE COURT: Do you also understand that the penalty, it's a mandatory penalty, it is not a penalty the Court has any discretion in, the mandatory penalty for this conviction is life imprisonment, you understand that?

MR. TWITTY: Yes.

THE COURT: I'm not sure, [to prosecutor], I know the legislature recently changed the law with respect to the minimum--mandatory minimum sentence. I don't think it would apply to this case.

[PROSECUTOR]: No, Your Honor, it does not.

THE COURT: So, you're looking at a mandatory life imprisonment sentence, and it would be up to the Parole Board as to when you would be released. Once the Court sentences you, when you're released is not up to the Court any more. Okay? Do you understand, Mr. Twitty, that with the exception of aggravated murder, that this is the most serious offense in Oregon? [....]

MR. TWITTY: Yes.

Id. (October, 1985 hearing before Judge Neufeld). While it is clear that the trial judge and the prosecutor were mistaken as to the applicability of the mandatory minimum sentencing statute, we agree with the district court's conclusion that his plea was not constitutionally invalid because the defendant was not aware of a potential minimum sentence, and the court did not commit constitutional error in not advising him of a potential minimum sentence.⁶  It does not appear that lack of this knowledge would likely have had any effect upon the petitioner's election to proceed without counsel.

At a pretrial hearing on November 4, 1985, Twitty, appearing pro se, confirmed that he wished to represent himself, and then reconfirmed it at the trial on December 3, 1985:

THE COURT: [...] For the record, we previously have had extensive discussions on the record at least two times that I know of and probably more than that with maybe a different judge. And, the Court is satisfied that Mr. Twitty has previously knowingly waived his right to counsel and has also knowingly waived his right to jury trial and I would ask if you still persist in both of these things this morning?

MR. TWITTY: Yes.

Respondent's Exh. 108, at 4. Twitty had access to a law library and five weeks in which to conduct research. He did not show why he could not verify for himself, acting as his own counsel, whether the mandatory minimum sentence applied. Having knowingly and voluntarily elected to act as his own attorney despite repeated warnings from the trial court,⁷  Twitty is responsible for his own mistakes just like any other lawyer.

II

Twitty next contends that his waiver of the assistance of co-counsel was not knowing and voluntary. At his October, 1985 hearing Judge Neufeld questioned Twitty about the possibility of his engaging an attorney as co-counsel:

THE COURT: [...] Have you given any consideration, Mr. Twitty, to maybe having co-counsel in this case? Co-counsel being where you would be co-counsel with an attorney?

MR. TWITTY: I don't understand the implication of it.

THE COURT: Someone would be there to assist you.

MR. TWITTY I don't understand the implications of it, so at the moment I'd have to say that it doesn't sound appealing to me. I have no knowledge.

THE COURT: Co-counsel is somebody that could be there with you to help you present your case, to offer you advice in the procedures and rules of evidence, and again the presentation of your case. Have you given any thought to that?

MR. TWITTY: No.

THE COURT: Do you want the Court to--why don't we do this? If you are interested in having co-counsel you can notify the Court.

MR. TWITTY: All right.

Respondent's Exh. 106, at 19-21. We find that the record supports both the state court's and the district court's determination that Twitty was advised fully of his right to co-counsel yet intelligently, knowingly and voluntarily chose not to pursue that option.

III

Twitty's third assertion is that his waiver of a jury trial was involuntary because his comments indicated that he had misunderstood the number of dissenting jurors required to produce a mistrial.

At Twitty's November 4, 1985 hearing before Judge Cushing, where he was advised of his right to a jury trial, Twitty responded that he " [w]ould like to waive [his] rights to a jury trial." Respondent's Exh. 107 at 5. Twitty elaborated, "My position is I have greater confidence in the rationale [sic] of the judge than I have in twelve people picked out at random." Id. at 8. Twitty then made a statement which indicated that he was unclear on how many jurors' votes would be required for a mistrial:

MR. TWITTY: Your Honor, just to make it a little clearer. If I pick a jury of 12 people, to get an acquittal, I need to convince 10 of them. To get a mistrial I only have to convince three. A mistrial in my mind just opens up a new trial. I would rather not have the second trial. I would rather have one man and he either--he judges on the evidence that's presented before him but it's not, to my mind three out of 12 or four out of 12, that in itself to me is a reasonable doubt. I would rather deal with one person.

THE COURT: I'm satisfied, if there's no other problems. I will tell you this, Mr. Twitty, you seem straightforward to me. However, sometimes people try to juggle the system around. It sounds like you want to get the thing tried and get it decided.

MR. TWITTY: Just want to get it over with.

Respondent's Exh. 107 at 10-11. An intelligent, knowing and voluntary waiver is not contingent upon a complete description of the jury trial system by the trial court, as long as the defendant understands the nature of the right he is waiving. See United States ex rel. Wandick v. Chrans, 869 F.2d 1084, 1087-88 (7th Cir. 1989). The district court found that "petitioner sufficiently understood the jury process and made a knowing and voluntary decision to waive his right to a jury trial. I do not find that his confusion as to the precise number of jurors required for a mistrial alters this conclusion." Clerk's Record, Docket Entry 31 at 10. We agree.

IV

Twitty next asserts that the trial court ought to have conducted a hearing sua sponte to determine the voluntariness of his statements and should have inquired into his allegations that a portion of the audiotape admitted into evidence had been deleted. Petitioner's Brief at 17-21. The district court correctly rejected these claims. Twitty failed to object to the admission of the statements at trial, nor did he contend that his statements were involuntary or excludable for any reason. In addition, any factual dispute with respect to deletions from the audiotape is not relevant, since Twitty failed to explain how the deletion might have prejudiced him. As Respondent points out, he was free at trial to cross-examine the police officers on this point or to introduce contrary evidence, but chose not to do so.

V

Twitty next alleges that the state unconstitutionally kept exculpatory evidence from him before and during his trial. Petitioner's Brief at 21-23. The record indicates that the police took swabs from Twitty's hands shortly after the shooting and submitted them for testing to a crime laboratory, but that, for reasons not clear from the record, no tests were ever performed. E.R. at 49. While the state has a clear obligation to advise a defendant of exculpatory evidence that it discovers or generates, it does not have an affirmative obligation to perform any particular scientific tests. Arizona v. Youngblood, 488 U.S. 51 (1988) (declining to find due process violation where potentially exculpatory evidence had been negligently destroyed before testing). We find that the district court correctly rejected this claim.

VI

Finally, Twitty asserts that the trial court should have concluded that the shooting was justifiable self-defense because the evidence was insufficient to conclude otherwise. Twitty has never denied that he shot the victim in the head and that this gunshot wound killed the victim. From this circumstantial evidence, a reasonable trier of fact could conclude that the defendant was guilty of murder. See e.g. Jackson v. Virginia, 443 U.S. 307, 326 (1979); United States v. Ordones, 469 F.2d 70 (9th Cir. 1972). By finding Twitty guilty as charged, the trial court concluded that the circumstantial evidence proved beyond a reasonable doubt that Twitty's killing of the victim was intentional, and not accidental or in self-defense.

AFFIRMED.