the "question is whether the state court's application of Supreme
Court precedent was objectively unreasonable." Id. at 889-890.
Under this standard, habeas relief is not warranted "unless the
state court decision, evaluated objectively and on the merits,
resulted in an outcome that cannot reasonably be justified under
existing Supreme Court precedent." Id. at 890. While it is
Supreme Court precedent that supplies the applicable rule,
thereby precluding consideration of the opinions of lower federal
courts on questions not addressed by the Supreme Court, a habeas
court may consider lower federal court decisions in determining
the reasonableness of the state court's application of Supreme
Court precedent, that is, as helpful amplifications of Supreme
Court precedent. Id.
Prior to the passage of AEDPA, there was a presumption in
habeas corpus proceedings that factual determinations by a state
court were correct. Jackson v. Byrd, 105 F.3d 145, 147 (3d
Cir.), reh'g denied, cert. denied, 520 U.S. 1268, 117 S.Ct.
2442, 138 L.Ed.2d 201 (1997).*fn10 Since AEDPA was enacted, the
presumption of correctness still applies but the quantum of proof
necessary to rebut the presumption has been increased (to the
"clear and convincing" standard), making it more difficult for
the petitioner to do so. Warren v. Smith, 161 F.3d 358, 360-361
(6th Cir. 1998), cert. denied, ___ U.S. ___, 119 S.Ct. 2403,
144 L.Ed.2d 802 (1999); Bressette v. N.Y. State Div. of Parole,
2 F. Supp.2d 383, 386-387 (W.D.N.Y. 1998). Thus, federal courts on
habeas review are required to give greater deference to factual
determinations by state courts. Bressette at 387 (quoting,
inter alia, Ford v. Ahitow, 104 F.3d 926, 936 (7th Cir. 1997);
Houchin v. Zavaras, 107 F.3d 1465, 1470 (10th Cir. 1997)). The
presumption applies to findings of fact by both the trial and
appellate courts of the state. Id. at 386.
V. MENTAL COMPETENCY
Although not numbered first among the issues presented by
Banks, we address first the question of Banks' mental competency
at the time of trial because several of the claims flow from the
Even before enactment of AEDPA, the Supreme Court of the United
States held that a state court's finding of competency was a
factual matter which is binding on a federal court unless the
record does not support the finding. Demosthenes v. Baal,
495 U.S. 731, 735, 110 S.Ct. 2223, 109 L.Ed.2d 762 (1990) (per
curiam). However, the duty to determine a defendant's mental
competency continues throughout trial, and a trial court must
stop the trial and conduct a hearing when there are circumstances
suggesting a change in the defendant's psyche rendering the
defendant incompetent to stand trial. Drope v. Missouri,
420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). Still, there is no
constitutional requirement of a second or successive hearing
absent evidence of a substantial change in the mental condition.
Senna v. Patrissi, 5 F.3d 18, 20 (2d Cir. 1993).
A criminal defendant is competent to stand trial if he or she
has the ability to consult with counsel to a reasonable degree of
rational certainty and has a rational and factual understanding
of the proceedings. Dusky v. United States, 362 U.S. 402, 80
S.Ct. 788, 4 L.Ed.2d 824 (1960) (per curiam); McFadden v. United
States, 814 F.2d 144, 146 (3d Cir. 1987).*fn11
The trial court conducted a pre-trial hearing to determine
whether Banks was competent to stand trial. The court's finding
of competence was supported by the testimony of a psychiatrist
called by the Commonwealth and therefore is supported by the
record. Banks argues, however, that his mental condition
deteriorated during trial until he became incompetent; that is,
he decompensated during trial. We discussed this issue at length
in Banks IV, and we believe that discussion continues to be
As noted, the trial court made a pre-trial
determination that Banks was mentally competent to
stand trial. The court continued to observe Banks for
signs that his condition with respect to competency
had changed. See, e.g., N.T. trial vol. 2 at
454-455 (June 8, 1983) (noting that questioning by
and demeanor of Banks established competency); vol. 5
at 1,645 (June 16, 1983) (noting that trial court had
seen nothing to warrant change of mind with respect
to competency determination); Banks I at 13
(reciting factual finding of trial court as to Banks'
demeanor and participation as related to competency,
also set forth in present record in Respondents'
Appendix A (record document no. 33, Opinion dated
October 17, 1985, at 15 n. 2)). Banks asked
meaningful, at times very insightful, questions of
witnesses. See, e.g., N.T. trial vol. 2 at 888-889
(June 9, 1983) (eliciting testimony of
firearms/ballistics expert that it was unlikely that
ammunition from weapon used would be found in body
because of its velocity, despite fact that fragments
were found in the body). It also should be noted, as
pointed out by Banks, that defense counsel repeatedly
reminded the trial court of its duty to consider
Banks' competency through a number of motions to
suspend proceedings for another competency hearing.
Based on the foregoing, it is clear that the trial
court remained mindful of its responsibility with
respect to the determination of competency, and
determined that Banks was mentally competent to stand
The only evidence of a change in the mental
condition of Banks during the course of the trial to
which he points is the testimony of Park E. Dietz,
M.D., a psychiatrist called by the Commonwealth on
the issue of Banks' sanity at the time of the
offenses. N.T. trial vol. 5 at 1,800-1,888;
1,890-1,932 (June 17, 1983). Specifically, Dr. Dietz
testified on direct examination, in part, as follows:
. . . I had the opportunity to observe Mr. Banks
testify yesterday, and his testimony shows that he
has paranoia, to me.
I recognized, in his testimony, every one of the
symptoms of his disease that has been discussed in
the testimony I've heard. Yesterday Mr. Banks
showed delusions and psychotic thought, which is
really the symptom of this illness. And so,
yesterday, I was able to observe that.
He's been said to be on a deteriorating course,
getting worse with this illness. Dr. Spodak
testified, in a hearing that I attended last
February 28, that Mr. Banks was deteriorating
rapidly. And there's been testimony since then that
Mr. Banks is deteriorating. Given that and given
the fact that he's been psychotic since he was in
prison, I think yesterday I had a chance to see him
at his worst and to see all the symptoms that Mr.
Banks shows when he is at his sickest.
Id. at 1,828. Dr. Dietz added later in his
testimony on direct examination:
Now, Mr. Banks was described by Dr. Turchetti as
being more floridly psychotic in February than he
had been back in October, at the original
interviews, and I think that significant, because
I've indicated to you that Mr. Banks seems to be
worse now than he was in the past; that his
behavior on the witness stand is, by
all accounts, more seriously disordered than his
behavior before the shootings and, in my opinion,
at the time of the shootings, so the disorder,
according to Dr. Turchetti, was worse in February
than in October.
Id. at 1,835.
This testimony is consistent with all of the
psychiatric testimony on the issue of whether Banks
suffered from a mental disease or defect. That is,
all of the psychiatrists agreed that Banks suffered
from paranoia or paranoid psychosis, which is
distinguishable from paranoid personality and
paranoid schizophrenia. In the current version of the
standard text on mental disorders, the disease
described by the psychiatrists appears to be a
"delusional disorder," subclassified as a
"persecutory type." Diagnostic and Statistical
Manual of Mental Disorders 296-298 (4th ed. 1994).
Dr. Weatherly cited an earlier version in his
testimony. N.T. competency hearing at 10 (May 6,
1983) (citing Diagnostic and Statistical Manual
Three, or third edition, and diagnosing as
"numerically number 297.10").
The differences in the testimony appear in the
opinions of the psychiatrists with respect to the
impact of the disease on Banks' cognitive abilities.
During trial, the psychiatrists called by the defense
opined that, as a result of the paranoia, Banks was
unable to understand the nature and consequences of
his actions or to distinguish right from wrong at the
time of the offenses, while the Commonwealth's
psychiatrists reached the opposite conclusion
(despite accepting the existence of the disease). In
other words, the testimony was in conflict as to the
effect of the disease on Banks' cognitive functions.
See esp. N.T. trial vol. 5 at 1,828 (June 17, 1983)
(testimony of Dr. Dietz that ". . . as for the
effect on thinking, on judgment, on other areas of
mental life, paranoia doesn't have an effect on those
areas of mental life"). Moreover, Dr. Sadoff
testified during the pre-trial competency hearing
that Banks' paranoia did not render him incompetent
to stand trial. N.T. competency hearing at 198 (March
There are, then, two problems with Banks' argument
that the testimony of Dr. Dietz required the trial
court to suspend the trial and conduct a full-blown
competency hearing. First, Dr. Dietz was not
testifying that Banks actually was deteriorating or
decompensating; he was assuming as much based on
previous testimony. Second, there is not necessarily
a link between the disorder and mental competency to
stand trial; in fact, the trial court had rejected
such a link, supported by Dr. Sadoff's testimony,
when it found Banks competent after the original
hearing. Considering this evidence and accepting as
true Banks' contention that his paranoia grew worse
as trial approached and during trial, it does not
follow that Banks was not competent.
We conclude that: (1) the trial court fulfilled its
ongoing, constitutional obligation to ensure that
Banks was competent to stand trial; (2) the trial
court's determination that Banks was competent is
supported by the record; and (3) the equivocal nature
of the evidence on which Banks relies, weighed
against the evidence of the ongoing observation of
Banks by the trial court, makes the testimony of Dr.
Dietz insufficient to rebut the presumption that the
determination of competency was correct. In the
language of Drope, there are no "circumstances
suggesting a change that would render the accused
unable to meet the standards of competence to stand
trial." Based on this conclusion, we find that
grounds (2) and (4) of Banks' petition do not warrant
Banks IV at 1171-1173. We reach the same conclusions at this
time. In the terms now applicable under § 2254(d), the decision
of the state courts in finding that Banks was competent did not
result in a
decision (1) contrary to or involving an unreasonable application
of clearly established federal law or (2) based on an
unreasonable factual determination in light of the evidence
produced in the state court proceedings. The finding of
competence leads to the denial of habeas relief for the claims
numbered (2), (4), and (5).
VI. WAIVER OF RIGHT TO COUNSEL
The first claim asserted by Banks (numerically) is that he did
not effect a knowing and voluntary waiver of the right to counsel
under the Sixth Amendment. Actually, Banks never waived the right
to counsel and continued to be represented throughout the course
of the trial. However, he did participate to some extent in the
conduct of his defense. Banks' participation included personally
cross-examining the ballistics expert called by the Commonwealth,
testifying in his own defense, and directing counsel as to
questions on cross-examination of the coroner and deputy coroners
during presentation of the Commonwealth's rebuttal evidence.
During his own testimony, Banks introduced photographs into
evidence which had been excluded by the trial court during the
Commonwealth's case in chief.
Banks contends that, in allowing him to participate to such an
extent in his defense, the trial court in effect allowed him to
proceed pro se without conducting a colloquy as to whether the
waiver of the right to counsel was knowing and voluntary. See
generally Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45
L.Ed.2d 562 (1975); McKaskle v. Wiggins, 465 U.S. 168, 104
S.Ct. 944, 79 L.Ed.2d 122 (1984). Actually, Banks' participation
in his defense constituted hybrid representation, which is a
matter within the discretion of the trial court. United States
v. Einfeldt, 138 F.3d 373, 378 (8th Cir.), cert. denied, ___
U.S. ___, 119 S.Ct. 126, 142 L.Ed.2d 102 (1998); United States
v. Treff, 924 F.2d 975, 979 n. 6 (10th Cir.), cert. denied,
500 U.S. 958, 111 S.Ct. 2272, 114 L.Ed.2d 723 (1991).*fn12
In United States v. Leggett, 81 F.3d 220, 223-226 (D.C.Cir.
1996), the defendant supplemented his counsel's questions with
questions of his own, cross-examined three government witnesses,
asked questions of two witnesses called by the defense, and made
a closing argument after his own counsel's argument. Because
Leggett did not forgo the right to counsel, instead supplementing
representation by counsel, the District of Columbia Circuit held
that he had not elected to proceed pro se and no colloquy was
required. "Leggett wanted both the benefit of counsel and the
ability to take the reins himself from time to time . . . and by
dint of the court's indulgence, he had his cake and ate it too."
Id. at 226 (citation omitted).
Banks argues, however, that a waiver of the right to counsel is
required even in the
instance of hybrid representation. In support of this
proposition, he cites three cases from the Ninth Circuit, United
States v. Turnbull, 888 F.2d 636, 638 (9th Cir. 1989), cert.
denied, 498 U.S. 825, 111 S.Ct. 78, 112 L.Ed.2d 51 (1990),
United States v. Kimmel, 672 F.2d 720 (9th Cir. 1982), and
Evans v. Raines, 534 F. Supp. 791, 797 n. 9 (D.Ariz. 1982); a
Tenth Circuit case which does not stand for the proposition for
which it is cited, United States v. Padilla, 819 F.2d 952,
959-960 (10th Cir. 1987); a Pennsylvania Superior Court case,
Commonwealth v. Palmer, 315 Pa. Super. 601, 462 A.2d 755, 758
(1983); and the dissent in a Third Circuit opinion, Bontempo v.
Fenton, 692 F.2d 954, 963 (3d Cir. 1982) (Sloviter, J.,
dissenting), reh'g, reh'g in banc denied, cert. denied,
460 U.S. 1055, 103 S.Ct. 1506, 75 L.Ed.2d 935 (1983).
We begin with the Tenth Circuit opinion, Padilla. In that
case, the defendant elected to proceed pro se. The Tenth
Circuit stated that the appointment of standby counsel is
preferred in such circumstances but the court still must ensure
that the waiver of the right to counsel is knowing and
intelligent. 819 F.2d at 959-960. Banks recites the holding in
this respect as "valid waiver of counsel required when there is
anything less than full representation by counsel." Brief in
Support of Petition for Writ of Habeas Corpus at 8. Actually, the
opinion states, "Anything less than full representation by
counsel raises the question of valid waiver of the right to
counsel." Padilla at 960 (citations omitted).
Thus, while it is true that Padilla stands for the
proposition that the court must examine whether the arrangement
is one of hybrid representation or pro se status with standby
counsel (the latter requiring a waiver of the right to counsel),
and suggests that anything less than full representation gives
rise to this duty to examine, it does not equate hybrid
representation with pro se status. In fact, the Tenth Circuit
in Treff (at 979 n. 6) noted that a request to proceed with
hybrid representation is not deemed a request to proceed pro
se, thereby specifically distinguishing the two situations.
Also, in Treff, the defendant argued that his right to
represent himself was violated when his request to participate in
his defense was denied. The Tenth Circuit held that he did not
make an unequivocal request to proceed pro se, and so the
argument failed. It should be noted however, that the defendant
was permitted to begin an opening statement.*fn13 That action
was not found to be the equivalent of proceeding pro se.
We conclude that the Tenth Circuit does not require a waiver
of the right to counsel under Faretta before the trial court
may exercise its discretion to permit hybrid representation.
Banks' citation to Palmer also misses the mark. In that case,
the defendant elected to proceed pro se with the exception of
selecting a jury, making closing remarks, and filing post-trial
motions. Those actions would be left to standby counsel, who also
would confer with the defendant during trial. Palmer at 758.
The defendant would personally make an opening statement and
examine witnesses. Id. at 758-759. The Superior Court held that
this arrangement really did not constitute pro se
representation but a partial waiver of the right to counsel.
Id. at 759. Thus, a colloquy on the partial waiver was
necessary, but only as to those aspects of the trial for which
the defendant would be representing himself. Id.
Several points must be emphasized about Palmer. First, the
Superior Court referred to Pa.R.Crim.P. 318(c), not the
Constitution, as the basis for its ruling. Second, the trial
court did instruct the defendant on those aspects of the trial
which he represented himself, which is the same as occurred in
this case: the trial court warned Banks about the wisdom of those
actions taken pro se. Finally, the Superior Court concluded in
Palmer that the defendant was proceeding effectively pro se.
We have not so concluded, and therefore the principle announced
in Palmer is inapplicable.*fn14
More on point is State v. Layton, 189 W. Va. 470, 477-479,
432 S.E.2d 740, 747-749 (1993) (citing, inter alia, Bontempo,
discussed below, and Palmer), in which the rationale for
distinguishing between pro se representation and hybrid
representation is discussed thoroughly. Succinctly stated, when
counsel participates in the defense of the case by assisting the
defendant and actually presenting the defense, there is not the
danger faced by a defendant who opts to represent himself or
herself, or with merely a technical advisor. Id. at 478,
432 S.E.2d 740, 432 S.E.2d at 748 (quoting State v. Barker,
35 Wn. App. 388, 395, 667 P.2d 108, 113 (1983)).
We do not believe that it is necessary to determine the exact
contours of what will constitute hybrid representation versus
standby counsel or advisory counsel. Whatever the precise extent
to which counsel must participate in the defense before counsel
will be part of hybrid representation, as opposed to standby or
advisory counsel, we think that there plainly was hybrid
representation of Banks.
We turn next to the only Third Circuit opinion cited by Banks,
Bontempo, an appeal from the granting of a writ of habeas
corpus. In that case, the state trial court was giving the final
charge to the jury when the defendant interrupted by shouting, "I
would like to say something." The outburst continued before the
jury was removed from the courtroom. The judge indicated that the
defendant would be permitted to address the jury (in effect a
closing argument) and even to reopen the defense for further
testimony, and allowed the defendant to consult with counsel.
After consulting with his attorney and a short colloquy with the
court, the defendant addressed the jury. 692 F.2d at 956. One of
the defendant's arguments was that the additional summation
deprived him of the assistance of counsel in violation of the
Sixth Amendment. Id. at 959-961.
In a 2-to-1 decision, the Third Circuit found no violation of
the Sixth Amendment for several reasons, such as the fact that
his statement permitted him to place before the jury a number of
matters which would not have been admissible had he testified
under oath. The tactic also permitted the defendant to avoid
cross examination on his prior criminal record. Id. at 960.
Most important for present purposes is the following portion of a
footnote in the majority opinion:
As the dissent aptly notes, the unorthodox
procedure used at the trial causes some difficulty in
categorizing the alleged violations in this case.
Although the dissent finds a partial deprivation of
counsel in Bontempo's summation, his remarks were
really supplemental to, and not in lieu of, retained
counsel's closing to the jury. In the circumstances
here, it is not clear that Bontempo's actions
amounted to a "partial waiver of his right to
counsel." . . .
Id. at 961 n. 6 (emphasis added).