JUSTICE O'CONNOR delivered the opinion of the Court.
In Faretta v. California, 422 U.S. 806 (1975), this Court recognized a defendant's Sixth Amendment right to conduct his own defense. The Court also held that a trial court may appoint "standby counsel" to assist the pro se defendant in his defense. Today we must decide what role standby counsel who is present at trial over the defendant's objection may play consistent with the protection of the defendant's Faretta rights.
Carl Edwin Wiggins was convicted of robbery and sentenced to life imprisonment as a recidivist. His conviction was set aside because of a defective indictment. When Wiggins was retired he was again convicted and sentenced to life imprisonment. Standby counsel were appointed to assist Wiggins at both trials. Wiggins now challenges counsel's participation in his second trial.
Prior to the first trial, a hearing was held on Wiggins' motion to proceed pro se. The court granted the motion, Record 4a, but simultaneously appointed two attorneys to act
On April 16, 1973, about two months before the second trial began, Wiggins filed a request for appointed counsel, stating that he wished to rescind his earlier waiver of counsel. App. A-54 — A-55.
Wiggins' wishes respecting appointed counsel remained volatile as his second trial approached. When pretrial proceedings began on June 4, 1973, Wiggins announced that he would be defending himself pro se; he then firmly requested that counsel not be allowed to interfere with Wiggins' presentations to the court. Record 8, 12, 39-40. Wiggins reaffirmed his desire to proceed pro se on the following morning, June 5, and objected even to the court's insistence that counsel remain available for consultation. Id., at 66-67. The trial began later that day, and shortly thereafter Wiggins interrupted his cross-examination of a witness to consult with Graham off the record. Id., at 201. Still later, Wiggins expressly agreed to allow Graham to conduct voir dire of another witness. Id., at 210.
Wiggins started the next day of trial, June 6, with a request that the trial not proceed in Samples' absence from the courtroom. Id., at 255. Later that morning Wiggins requested that counsel not be allowed to assist or interrupt, id., at 308, but a short while after Wiggins interrupted his own cross-examination of a witness to confer with Samples off the record. Id., at 310. When the trial reconvened in the afternoon, Wiggins agreed to proceed in Samples' absence. Id., at 328. After Samples returned, however, Wiggins again interrupted his own cross-examination of a witness to confer with him. Id., at 333. Later Wiggins insisted that counsel should not initiate private consultations with him. Id., at 345-346. Before the end of the day Wiggins once again found occasion to interrupt his own examination of a witness to confer with Samples. Id., at 384.
On the following day, June 7, Wiggins agreed that Graham would make Wiggins' opening statement to the jury. Id., at 486. On June 8, Wiggins was once again willing to have the trial proceed in the absence of one of his standby counsel.
After exhausting direct appellate and state habeas review Wiggins filed a petition for federal habeas corpus relief. He argued that standby counsel's conduct deprived him of his right to present his own defense, as guaranteed by Faretta. The District Court denied the habeas petition, but the Court of Appeals for the Fifth Circuit reversed. Wiggins v. Estelle, 681 F.2d 266, rehearing denied, 691 F.2d 213 (1982). The Court of Appeals held that Wiggins' Sixth Amendment right of self-representation was violated by the unsolicited participation of overzealous standby counsel:
We do not accept the Court of Appeals' rule, and reverse its judgment.
In Faretta the Court considered the case of a criminal defendant who was required to present his defense exclusively through counsel. The Court held that an accused has a Sixth Amendment right to conduct his own defense, provided only that he knowingly and intelligently forgoes his right to counsel and that he is able and willing to abide by rules of procedure and courtroom protocol. Faretta concluded that "[u]nless the accused has acquiesced in [representation through
Faretta's holding was based on the longstanding recognition of a right of self-representation in federal and most state courts, and on the language, structure, and spirit of the Sixth Amendment. Under that Amendment, it is the accused, not counsel, who must be "informed of the nature and cause of the accusation," who has the right to confront witnesses, and who must be accorded "compulsory process for obtaining witnesses in his favor." The Counsel Clause itself, which permits the accused "to have the Assistance of Counsel for his defence," implies a right in the defendant to conduct his own defense, with assistance at what, after all, is his, not counsel's trial.
A defendant's right to self-representation plainly encompasses certain specific rights to have his voice heard. The pro se defendant must be allowed to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial. The record reveals that Wiggins was in fact accorded all of these rights.
Before trial Wiggins moved the trial court to order preparation of a transcript of the first trial. He, not standby counsel, then waived receipt of the transcript and announced ready for trial. Record 7-11, 65-66. He filed and argued at least 12 pro se motions in pretrial proceedings.
Wiggins filed numerous pro se motions in the course of the trial.
Wiggins' complaint is directed not at limits placed on his participation in the trial, for there clearly were none. It is directed instead at the allegedly inadequate limits placed on standby counsel's participation. At trial Wiggins objected to the very fact that counsel would remain available to assist him. Id., at 66-67. Wiggins has abandoned that objection; he now contends only that his Faretta right to present his defense pro se was impaired by the distracting, intrusive, and unsolicited participation of counsel throughout the trial.
Wiggins claims, and the Court of Appeals agreed, that the pro se defendant may insist on presenting his own case wholly free from interruption or other uninvited involvement by standby counsel. Wiggins relies primarily on Faretta's sole reference to standby counsel:
Wiggins contends that the "if and when" language defines the limits on standby counsel's role. He argues that the Faretta right will be eviscerated if counsel is allowed to argue with the defendant, make motions to the court contrary to the defendant's wishes, and take other steps not specifically approved by the defendant.
In our view, both Faretta's logic and its citation of the Dougherty case indicate that no absolute bar on standby counsel's unsolicited participation is appropriate or was intended. The right to appear pro se exists to affirm the
In determining whether a defendant's Faretta rights have been respected, the primary focus must be on whether the defendant had a fair chance to present his case in his own way. Faretta itself dealt with the defendant's affirmative right to participate, not with the limits on standby counsel's additional involvement. The specific rights to make his voice heard that Wiggins was plainly accorded, see supra, at 174-175, form the core of a defendant's right of self-representation.
We recognize, nonetheless, that the right to speak for oneself entails more than the opportunity to add one's voice to a cacophony of others. As Wiggins contends, the objectives underlying the right to proceed pro se may be undermined by unsolicited and excessively intrusive participation by standby counsel. In proceedings before a jury the defendant may legitimately be concerned that multiple voices "for the defense" will confuse the message the defendant wishes to convey, thus defeating Faretta's objectives.
Second, participation by standby counsel without the defendant's consent should not be allowed to destroy the jury's perception that the defendant is representing himself.
Participation by standby counsel outside the presence of the jury engages only the first of these two limitations. A trial judge, who in any event receives a defendant's original Faretta request and supervises the protection of the right throughout the trial, must be considered capable of differentiating the claims presented by a pro se defendant from those presented by standby counsel. Cf. United States v. Martinez, 597 F.2d 509, 510-511 (CA5), cert. denied, 444 U.S. 979 (1979); United States v. Penick, 496 F.2d 1105, 1108 (CA7), cert. denied, 419 U.S. 897 (1974); United States v. Reeves, 348 F.2d 469 (CA2 1965), cert. denied, 383 U.S. 929 (1966). Accordingly, the appearance of a pro se defendant's self-representation will not be unacceptably undermined by counsel's participation outside the presence of the jury.
Thus, Faretta rights are adequately vindicated in proceedings outside the presence of the jury if the pro se defendant is allowed to address the court freely on his own behalf and if disagreements between counsel and the pro se defendant are resolved in the defendant's favor whenever the matter is one that would normally be left to the discretion of counsel.
On several occasions Wiggins expressly adopted standby counsel's initiatives. When counsel moved to quash a jury panel, for example, Wiggins joined the motion. Record 81-82. Wiggins seconded counsel's requests for a police report and photographs. Id., at 51-52, 54. At least twice, counsel made a motion, the motion was denied, and Wiggins then registered his exception to the denial.
On several other occasions Wiggins strongly opposed the initiatives of counsel. He resisted counsel's suggestion that the trial be postponed so that the transcript of his prior trial could be prepared,
The most acrimonious exchange between Graham and Wiggins occurred in the course of questioning a witness on voir dire. Wiggins suggests this exchange was typical of counsel's
Though several of these incidents are regrettable, we are satisfied that counsel's participation outside the presence of the jury fully satisfied the first standard we have outlined. Wiggins was given ample opportunity to present his own position to the court on every matter discussed. He was given time to think matters over, to explain his problems and concerns informally, and to speak to the judge off the record. Standby counsel participated actively, but for the most part in an orderly manner. The one instance of overbearing conduct by counsel was a direct result of Wiggins' own indecision as to who would question the witness on voir dire. Wiggins was given abundant opportunity to argue his contentions to the court.
Equally important, all conflicts between Wiggins and counsel were resolved in Wiggins' favor. The trial judge repeatedly explained to all concerned that Wiggins' strategic choices, not counsel's, would prevail. Id., at 12-13, 65, 210, 223-224, 306-308, 341-342, 345-346, 414-415, 427, 430, 450, 477-478. Not every motion made by Wiggins was granted, but in no instance was counsel's position adopted over Wiggins' on a matter that would normally be left to the defense's discretion.
Participation by standby counsel in the presence of the jury is more problematic. It is here that the defendant may legitimately claim that excessive involvement by counsel will destroy the appearance that the defendant is acting pro se.
In measuring standby counsel's involvement against the standards we have described, it is important not to lose sight of the defendant's own conduct. A defendant can waive his Faretta rights. Participation by counsel with a pro se defendant's express approval is, of course, constitutionally unobjectionable. A defendant's invitation to counsel to participate in the trial obliterates any claim that the participation in question deprived the defendant of control over his own defense. Such participation also diminishes any general claim that counsel unreasonably interfered with the defendant's right to appear in the status of one defending himself.
Although this is self-evident, it is also easily overlooked. A defendant like Wiggins, who vehemently objects at the beginning of trial to standby counsel's very presence in the courtroom, may express quite different views as the trial progresses. Even when he insists that he is not waiving his Faretta rights, a pro se defendant's solicitation of or acquiescence in certain types of participation by counsel substantially undermines later protestations that counsel interfered unacceptably.
The record in this case reveals that Wiggins' pro se efforts were undermined primarily by his own, frequent changes of mind regarding counsel's role. Early in the trial Wiggins insisted he wished to proceed entirely without assistance, but shortly thereafter he expressly agreed that counsel should question a witness on voir dire. Wiggins objected vehemently to some of counsel's motions, but warmly embraced others. Initially Wiggins objected to standby counsel's presence; later he refused to allow the trial to proceed in
Faretta does not require a trial judge to permit "hybrid" representation of the type Wiggins was actually allowed. But if a defendant is given the opportunity and elects to have counsel appear before the court or jury, his complaints concerning counsel's subsequent unsolicited participation lose much of their force. A defendant does not have a constitutional right to choreograph special appearances by counsel. Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant's acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.
Faretta rights are also not infringed when standby counsel assists the pro se defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task, such as introducing evidence or objecting to testimony, that the defendant has clearly shown he wishes to complete. Nor are they infringed when counsel merely helps to ensure the defendant's compliance with basic rules of courtroom protocol and procedure. In neither case is there any significant interference with the defendant's actual control over the presentation of his defense. The likelihood that the defendant's appearance in the status of one defending himself will be eroded is also slight, and in any event it is tolerable. A defendant does not have a constitutional right to receive personal instruction from the trial judge on courtroom procedure.
Accordingly, we make explicit today what is already implicit in Faretta: A defendant's Sixth Amendment rights are not violated when a trial judge appoints standby counsel — even over the defendant's objection — to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that stand in the way of the defendant's achievement of his own clearly indicated goals. Participation by counsel to steer a defendant through the basic procedures of trial is permissible even in the unlikely event that it somewhat undermines the pro se defendant's appearance of control over his own defense.
At Wiggins' trial a significant part of standby counsel's participation both in and out of the jury's presence involved basic mechanics of the type we have described — informing the court of the whereabouts of witnesses, supplying Wiggins with a form needed to elect to go to the jury at the punishment phase of trial, explaining to Wiggins that he should not argue his case while questioning a witness, and so on. See Record 9, 11-12, 45, 50, 69, 191, 206, 232, 251, 254, 255, 391, 393, 396, 404, 406, 471. When Wiggins attempted to introduce a document into evidence, but failed to mark it for identification or to lay a predicate for its introduction, counsel, at the trial court's suggestion, questioned the witness to lay an appropriate predicate, and Wiggins then resumed his examination. Id., at 293-296. Similarly, the trial judge repeatedly instructed Wiggins to consult with counsel, not with the court, regarding the appropriate procedure for summoning witnesses. Id., at 204-205, 207-208, 248, 272, 395, 396, 402.
Putting aside participation that was either approved by Wiggins or attendant to routine clerical or procedural matters, counsel's unsolicited comments in front of the jury were infrequent and for the most part innocuous. On two occasions Graham interrupted a witness' answer to a question put by Wiggins. Id., at 204, 287. The first interruption was trivial. When the second was made the jury was briefly excused and subsequently given a cautionary instruction as requested by Graham. Wiggins made no objection. Standby counsel also moved for a mistrial three times in the presence of the jury. Id., at 262, 421-422, 498-499. Each motion was in response to allegedly prejudicial questions or comments by the prosecutor. Wiggins did not comment on the first motion, but he opposed the following two. All three motions were immediately denied by the trial court. Regrettably, counsel used profanity to express his exasperation on the second occasion.
The statements made by counsel during the guilt phase of the trial, in the presence of the jury and without Wiggins' express consent, occupy only a small portion of the transcript. Most were of an unobjectionable, mechanical sort. While standby counsel's participation at Wiggins' trial should not serve as a model for future trials, we believe that counsel's involvement fell short of infringing on Wiggins' Faretta rights. Wiggins unquestionably maintained actual control over the presentation of his own defense at all times.
We are also persuaded that Wiggins was allowed to appear before the jury in the status of one defending himself. At the outset the trial judge carefully explained to the jury that Wiggins would be appearing pro se. Record 84. Wiggins, not counsel, examined prospective jurors on voir dire, cross-examined the prosecution's witnesses, examined his own witnesses, and made an opening statement for the defense. Wiggins objected to the prosecutor's case at least as often as did counsel. If Wiggins' closing statement to the jury had to compete with one made by counsel, it was only because Wiggins agreed in advance to that arrangement.
By contrast, counsel's interruptions of Wiggins or witnesses being questioned by Wiggins in the presence of the jury were few and perfunctory. Most of counsel's uninvited comments were directed at the prosecutor.
Faretta affirmed the defendant's constitutional right to appear on stage at his trial. We recognize that a pro se
The judgment of the Court of Appeals is therefore
JUSTICE BLACKMUN concurs in the result.
JUSTICE WHITE, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.
Just as the Sixth Amendment accords an accused a fundamental right to the assistance of counsel, so also, this Court has recognized, it embodies "the correlative right to dispense with a lawyer's help," Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942), and to manage one's own defense. Faretta v. California, 422 U.S. 806 (1975). It is, I believe, "undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts." Id., at 834. Nevertheless, "Faretta establishes that the right to counsel is more than a right to have one's case presented competently and effectively." Jones v. Barnes, 463 U.S. 745, 759 (1983) (BRENNAN, J., dissenting). "The right to defend is personal," Faretta, 422 U. S., at 834, and the text and structure of the Sixth Amendment, as well as the common-law jurisprudence from which the Amendment emerged, comport with "a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so." Id., at 817. Thus, an accused who knowingly, intelligently, and voluntarily elects to do so is constitutionally entitled to refuse the services of a
After granting Wiggins' request that he be allowed to represent himself, the trial court designated his two appointed attorneys as standby counsel and made it clear that they served in a purely advisory capacity. One of the attorneys soon began to assume a more active role in the proceedings, and Wiggins protested that counsel's unsolicited participation was frustrating the conduct of his defense. The trial court informed Wiggins that he would receive counsel's aid whether he wanted it or not,
Although petitioner characterizes counsel's participation as "limited" and "intermittent," nothing could be further from the truth. Standby counsel intervened in a substantial manner without Wiggins' permission well over 50 times during the course of the 3-day trial; many of these interruptions precipitated direct conflicts between Wiggins and counsel, often in the presence of the jury. See App. A-3 — A-54. Although the trial court appears to have resolved the conflicts calling for a ruling in Wiggins' favor, their mere existence disrupted the proceedings and turned the trial into an ordeal through which the jury was required to suffer. See, e. g., id., at A-29; Record 423. At several points during the trial, moreover, counsel blatantly interfered with Wiggins' attempt to present his defense in a manner not calling for a ruling from the bench, see, e. g., App. A-20, and we of course have no way of knowing the extent to which Wiggins' defense was subtly undermined or adversely affected by counsel's extensive unsolicited participation.
The Court of Appeals had little trouble concluding that counsel's conduct, expressly and tacitly approved by the trial court, prevented Wiggins from conducting his own defense. Although the Court of Appeals recognized that trial courts are empowered to appoint standby counsel for pro se defendants, it declared that "court-appointed standby counsel is `to be seen, but not heard.' " 681 F. 2d, at 273. Standby counsel, the Fifth Circuit made clear, "is not to compete with the defendant or supersede his defense. Rather, his presence
The court recognized that in some cases counsel's interjections will be "few and innocuous"; reversal is not necessary "every time overzealous counsel, acting in the best interests of his client, volunteer[s] his aid without prior permission." Id., at 274. But the continuous and substantial intervention of standby counsel, despite Wiggins' repeated demands that he play a passive role, could not have had "anything but a negative impact on the jury. It also destroyed Wiggins' own perception that he was conducting his defense." Id., at 275 (emphasis in original). The Court of Appeals thus held that the State had failed to demonstrate that Wiggins had not been prejudiced by counsel's participation and that he was entitled to relief.
Disagreeing with the Court in several respects, I would affirm the judgment of the Court of Appeals.
The Court holds that the seen-but-not-heard standard used by the Court of Appeals in determining whether standby counsel improperly encroached on Wiggins' right of self-representation is too rigid and too restrictive on the conduct of standby counsel. As indicated above, however, the Court of Appeals would not hold that every instance of volunteered assistance or even every series of such instances would violate a defendant's rights. Nor, as I understand it, would the Court of Appeals' holding prevent a trial judge from directing a defendant to consult with standby counsel where necessary for the proper conduct of the trial or from insisting that a defendant agree to some ground rules with respect to when standby counsel could inject himself into the trial. I agree that the trial judge himself should not be burdened with educating the defendant in trial procedure and that he should be able to insist that the defendant learn what he needs to know
As the Court observes, ante, at 173, Faretta presented a situation in which the trial court wholly denied a defendant's request to proceed pro se and required him to address the State's charges only through his appointed attorney. Wiggins, unlike Faretta, was allowed to proceed pro se and took an active role in his trial. The Court concludes, on the basis of its examination of the record, that Wiggins was afforded "a fair chance to present his case in his own way," ante, at 177, and that "counsel's unsolicited involvement was held within reasonable limits," ante, at 188. It arrives at this conclusion by applying a two-part test that, in my judgment, provides little or no guidance for counsel and trial judges, imposes difficult, if not impossible, burdens on appellate courts, and undoubtedly will lead to the swift erosion of defendants' constitutional right to proceed pro se.
Under the Court's new test, it is necessary to determine whether the pro se defendant retained "actual control over the case he [chose] to present to the jury," ante, at 178, and whether standby counsel's participation "destroy[ed] the jury's perception that the defendant [was] representing himself," ibid. Although this test purports to protect all of the values underlying our holding in Faretta, it is unclear whether it can achieve this result.
As long as the pro se defendant is allowed his say, the first prong of the Court's test accords standby counsel at a bench
Although the Court is more solicitous of a pro se defendant's interests when standby counsel intervenes before a jury, the test's second prong suffers from similar shortcomings. To the extent that trial and appellate courts can discern the point at which counsel's unsolicited participation substantially undermines a pro se defendant's appearance before the jury, a matter about which I harbor substantial doubts, their decisions will, to a certain extent, "affirm the accused's individual dignity and autonomy." Ante, at 178. But they will do so incompletely, for in focusing on how the jury views the defendant, the majority opinion ignores Faretta's emphasis on the defendant's own perception of the criminal justice system, Faretta v. California, supra, at 834, and implies that the Court actually adheres to the result-oriented harmless-error standard it purports to reject. Ante, at 177-178, n. 8.
In short, I believe that the Court's test is unworkable and insufficiently protective of the fundamental interests we recognized in Faretta.
The inappropriateness of the Court's standard is made manifest by the Court's conclusion that the conduct of standby counsel in this case passes muster under that standard. In frequently and grievously exceeding the proper role of standby counsel, the more active of Wiggins' appointed attorneys distracted Wiggins and usurped his prerogatives,
The Court reaches a different conclusion by pinning the blame for the interference with the right to proceed pro se on Wiggins himself and by dissecting counsel's activities into discrete categories and failing to consider their overall impact. These tactics, of course, both required the Court to do its own factfinding, a function normally left for district courts. Neither approach can withstand scrutiny. Particularly
Considered in isolation, many types of interference by standby counsel in a pro se defense will likely appear inconsequential. The Court's desire to compartmentalize counsel's actions, while understandable, has, in my view, led it to ignore the cumulative effect of counsel's frequent participation on Wiggins' right to defend himself. To the extent that the Court rests on the proposition that not every transgression of standby counsel constitutes reversible error, I have no quarrel with its reasoning. A trial court's tolerance of isolated and innocuous participation by standby counsel could perhaps be characterized — in line with the Court of Appeals' holding — as harmless constitutional error; one also could conclude that such participation simply does not rise to the level of a constitutional violation. The second formulation is
It also seems to me that if a standard different from that applied by the Court of Appeals is to govern this case, the
With all due respect, I dissent and would affirm the judgment of the Court of Appeals.
"I wish to rescind my earlier request to waive court appointed assistance counsel — and request that this honorable court appoint counsel to assist me.
"I would appreciate very much if the court would appoint the Honorable Stewart J. Alexander who was previously appointed to assist on appeal, before sentence was set aside.
"And I apologize if I have caused an inconvenience to the court." Record 584 (original emphasis).
"Now comes Carl Edwin Wiggins, defendant in the above styled and numbered cause, and respectfully petitions the Court to appoint counsel to represent him in said felony cause and would show to the Court that he is too poor to employ counsel." Id., at 586.
"I have been indicted four (4) times of the same offense . . . .
"According to Higgins v. State and Snow v. State, where prosecutions were dismissed — and according to VACCP Art. 28.13, I should'nt [sic] be tried again.
"Will you please appoint counsel to cite authorities on this issue, also, in favor of the state. I find only authorities indicating that further prosecution is barred. None indicating other-wise [sic]." Id., at 623 (original emphasis).
As a corollary, however, a defendant who exercises his right to appear pro se "cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel.' " Faretta, 422 U. S., at 835, n. 46. Moreover, the defendant's right to proceed pro se exists in the larger context of the criminal trial designed to determine whether or not a defendant is guilty of the offense with which he is charged. The trial judge may be required to make numerous rulings reconciling the participation of standby counsel with a pro se defendant's objection to that participation; nothing in the nature of the Faretta right suggests that the usual deference to "judgment calls" on these issues by the trial judge should not obtain here as elsewhere.
"The utility of an amicus appointment is dependent on explanation to and cooperation by [the] defendant, and on understanding, too, that he may claim with some merit that his pro se rights include his right to appear before the jury in the status of one defending himself, and that this is defeated if a too conspicuous role is played by an attorney, unless it clearly appears to the jury that he does not have the status of defense counsel." Id., at 88, 473 F. 2d, at 1125 (footnote omitted).
"THE COURT: Don't lead.
"MR. GRAHAM: I ask the Court to instruct the jury to disregard the remarks of counsel as not being testimony in the case.
"THE COURT: The Court will instruct the jury to disregard the last statement made by Mr. Rodriguez.
"MR. GRAHAM: Notwithstanding the Court's instruction, I am sure it is so prejudicial as to require a mistrial.
"DEFENDANT: No, Your Honor. I object to a mistrial. I object to counsel —
"THE COURT: I denied the motion for mistrial. Overruled.
"MR. GRAHAM: Jesus Christ." Id., at 421-422.
"MR. GRAHAM: Certainly. Help yourself.
"DEFENDANT: I would be grateful. I have not solicited his assistance, Your Honor, and I don't want it.
"THE COURT: You are going to get help and/or assistance from him because you are obviously not a lawyer.
"DEFENDANT: Yes sir. I am not a lawyer.
"THE COURT: And this trial, if we do go into it, is going to be conducted according to the rules of law.
"DEFENDANT: Yes sir.
"THE COURT: And there might be an occasion when this Court is going to require that you consult with them as to what the proper procedure may be.
"DEFENDANT: Yes sir.
"THE COURT: You will have every right made available to you under the law, as this Court is able to determine.
"DEFENDANT: I appreciate that, Your Honor, but for assistant counsel to initiate something that the defendant does not want, I would like to consult the attorneys for advice. I will appreciate that, but for counsels [sic] to initiate something that is contrary to the defendant's defense, well, then, I couldn't appreciate that." App. A-8 — A-9.
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: The basis of that is that you expect to be an attorney for yourself pro se?
"DEFENDANT: Yes, Your Honor. In fact, not only that, I would like to waive his assistance, if I may.
"THE COURT: The Court is not going to relieve you of that. Now, you can use it or not use it. It's available to you in this case.
"DEFENDANT: Yes sir, but I would ask the court to ask Mr. Graham not to take the initiative to interfere with the defendant here, if I may do that?
"THE COURT: Well —
"DEFENDANT: I mean, if I want Mr. Graham's help I will ask for it and appreciate it if he wouldn't volunteer without me asking for it.
"THE COURT: Well, Mr. Graham is a competent attorney and he has much experience in this type of thing and I am sure what he is trying to do is what he thinks is best for you. I am not going to order him to do or not to do anything. If some problem or situation arises, I will act on it at that time. I am not going to order him not to.
"DEFENDANT: Your Honor, do I understand that the Court is forcing the services of Mr. Graham on the defendant?
"THE COURT: His availability, yes.
"DEFENDANT: May I except to that, Your Honor?" Id., at A-13 — A-14.
After numerous disagreements between Wiggins and counsel, Wiggins was again moved to request the assistance of the trial court:
"DEFENDANT: May I say it is peculiar to me, Your Honor and I would really appreciate it if I could . . . conduct my defense without the assistance and interruptions of counsel, with all respect, Mr. Graham.
"THE COURT: All right.
"MR. GRAHAM: I will sit third chair from now on. I will move back one notch.
"THE COURT: I am not going to order you Mr. Graham, because I know you are competent counsel, but let me suggest to you that unless he consults with you — you do your own thing anyway, but don't object or don't ask questions unless and until the Court requests that you consult with him because he doesn't know the proper way to do something." Id., at A-30 — A-31. See also Record 345-346.
Notwithstanding this admonition, counsel continued to act of his own accord and to disrupt the presentation of Wiggins' defense throughout the trial.
"[N]umerous strategic and tactical decisions must be made in the course of a criminal trial, many of which are made in circumstances that do not allow extended, if any, consultation. Every experienced advocate can recall the disconcerting experience of trying to conduct the examination of a witness or follow opposing arguments or the judge's charge while the client `plucks at the attorney's sleeve' offering gratuitous suggestions." ABA Standards for Criminal Justice 4-5.2 (2d ed. 1980).
See Moreno v. Estelle, 717 F.2d 171, 173, n. 1 (CA5 1983); Bittaker v. Enomoto, 587 F.2d 400, 402-403 (CA9 1978), cert. denied, 441 U.S. 913 (1979); United States v. Dougherty, 154 U. S. App. D. C. 76, 90-93, 473 F.2d 1113, 1127-1130 (1972); United States v. Plattner, 330 F.2d 271, 273 (CA2 1964); People v. Tyner, 76 Cal.App.3d 352, 356, 143 Cal.Rptr. 52, 54 (1977). But see People v. Sharp, 7 Cal.3d 448, 462-463, 499 P.2d 489, 498 (1972), cert. denied, 410 U.S. 944 (1973); Burney v. State, 244 Ga. 33, 37, 257 S.E.2d 543, 547, cert. denied, 444 U.S. 970 (1979); State v. Kirby, 198 Neb. 646, 648-649, 254 N.W.2d 424, 426 (1977). See also Walker v. Loggins, 608 F.2d 731, 736 (CA9 1979) (Carter, J., dissenting).
As is the case when the trial court completely denies a defendant's right of self-representation, application of the result-oriented harmless-error standard to cases like this one, where the defendant was allowed to proceed pro se but the conduct of his appointed standby counsel inhibited his ability to do so, would result in the denigration of the right. If counsel's interference can be characterized as de minimis, it is more consistent with the nature of the right of self-representation to conclude that no violation occurred than to say that the violation was harmless constitutional error. If, as is the case here, counsel acted with substantial autonomy and significantly interfered with the pro se defendant's presentation of his defense, reversal should follow automatically without any inquiry into the question whether the constitutional violation likely affected the outcome of the trial.