¶1concurring:
¶2I concur fully in the views expressed by Mr. Justice Batjer; however, I wish to add one observation.
¶3Unless the U.S. Supreme Court limits prior declarations, I think we must assume that the right of an accused to act as his own defense counsel carries the right to make usual choices concerning tactics and strategy. Many trials present hard choices concerning what evidence should be adduced on various issues. Whether particular evidence will “mitigate” or aggravate the criminality of a generally known set of circumstances is, often, a question on which reasonable minds differ. Thus, 1 think the majority is correct in concluding that appellant’s decision cannot be viewed as “waiving” evidence of “mitigation.” Such a characterization — which assumes that counsel, rather than the appellant, necessarily knew best — is contrary to the concept of Faretta as thus far articulated.
¶4If the district court had permitted standby counsel to introduce evidence over the appellant’s objection, and then had sentenced appellant to death, we would now face the contention that the court had prejudicially interfered with the accused’s right to represent himself.
¶5dissenting in part:
¶6Respectfully, I dissent from that part of the majority opinion which holds, “the sentencing tribunal did not err when it did not delve into the mitigating evidence referred to by the standby counsels.” Although I have no quarrel with the imposition of the death penalty per se, the fundamental respect for humanity which underlies our system of justice demands that I acquiesce in the imposition of the penalty only upon a procedurally clean record. My brethren affirm the imposition of the death penalty, in disregard of the critical procedural infirmity which infects this case, and, in my view, in violation of our own statutes and the pronouncements of the highest Court of the land.
¶7The majority reasons that because Faretta v. California, 422 U.S. 806 (1975), permits self-representation and because appellant chose to proceed without counsel, he cannot now be heard to complain of any right he waived, no matter how important the right and regardless of the drastic consequences of the waiver. I disagree with the court’s interpretation of Farettaand submit that it is not altogether clear whether Farettaand its progeny have any applicability in the context of a penalty hearing in a capital case.
¶8The United States Supreme Court has held unequivocally that a defendant must be allowed to present mitigating circumstances before the death penalty may be imposed. Lockett v. Ohio, 438 U.S. 586 (1978); H. Roberts v. Louisiana, 431 U.S 633 (1977); Woodson v. North Carolina, 428 U.S. 280 (1976); and see Smith v. State, 93 Nev. 82, 560 P.2d 158 (1977). The question in this case is whether a defendant alone may waive that right, and whether a three judge panel may honor that waiver even when standby counsel are present in court, ready to present such evidence in mitigation. In my view, the answer is no. The panel, having ordered the presence of standby counsel, and having urged Bishop to consult with them, should have given counsel reasonable deference, notwithstanding their client’s “death wish.”
¶9In Com. v. McKenna, supra, defendant appealed his convictions of rape and first degree murder, but refused to challenge his death sentence. The court affirmed the convictions but remanded for resentencing on the ground that the statute under which McKenna was sentenced was unconstitutional. Id., at 179. The Pennsylvania court held that the defendant could not *521waive his right to challenge the death penalty statute, reasoning:
[T]he waiver concept was never intended as a means of allowing a criminal defendant to choose his own sentence. Especially is this so where, as here, to do so would result in state aided suicide. The waiver rule cannot be exalted to a position so lofty as to require this court to blind itself to the real issue — the propriety of allowing the state to conduct an illegal execution of a citizen. [Footnote omitted.] In short, where an overwhelming public interest is involved, but is not addressed by the parties, this Court has a duty to transcend procedural rules which are not, in spirit, applicable, to the end that the public interest may be vindicated. Such an overwhelming public interest — insuring that capital punishment in this Commonwealth comports with the Constitution of the United States — is present here. (Emphasis added.)
¶11Under Faretta v. California, supra, an accused’s Sixth Amendment right to waive counsel is construed as a right personal to him. However, the authority to prescribe punishment and establish sentencing guidelines, particularly in capital cases, must be done within the proscriptions of the Eighth Amendment and such power is vested in the State and can not be independently exercised by the accused. See Hayes v. United States, 238 F.2d 318 (10th Cir. 1956); Commonwealth v. McKenna, supra. Specifically, the right to pro se representation in a criminal proceeding is personal to the defendant through the Sixth Amendment, and is separate from the Eighth Amendment objective of the State to be apprised of all relevant circumstances of an offense, the defendant, and the victim, before imposition of the death penalty.
¶12The right of pro se representation is not an open invitation tb evade the statutory intendments and the pronouncements of the United States Supreme Court which mandate meaningful and plenary bifurcated criminal proceedings. The sentencing tribunal, charged with the duty of insuring that justice be achieved, see Brady v. Maryland, 373 U.S 83 (1963), should have heard the mitigating circumstances Bishop’s standby counsel so zealously sought to present. Inevitably, the expense of its failure to do so, and my brethren’s affirmance of that error, will be further protracted proceedings in the federal system.
¶13I dissent. I would reverse and remand for further sentencing proceedings before the same panel.
¶14 In Faretta, the high Court simply held that under the circumstances there present, where the defendant was charged with grand theft and timely asserted his right to proceed with his own defense, the California courts, by forcing him “to accept against his will a state-appointed public defender . . . deprived him of his constitutional right to conduct his own defense. . . .” Faretta v. California, supra, at 836.
¶15In United States v. Taylor, 569 F.2d 448 (7th Cir. 1978), cert. denied, 435 U.S. 952, 98 S.Ct. 1581, the Court stated:
We recognize that Farettaholds that an accused has a constitutional right to dispense with the assistance of counsel and to conduct his defense personally. It does not inevitably follow, however, that this right of self-representation comprehends any correlative right to preclude the trial court from appointing counsel and authorizing him to participate in the trial over the accused’s objection in order to protect the public interest in the fairness and integrity of the proceedings. [Footnote omitted.]
¶16Id., at 452. Here, the panel apparently believed it was acting in accordance with the mandates of Faretta. In my view, such a narrow reading of Farettawas unjustified given the circumstances of this case. Indeed, Faretta contemplates that a state court, even over the objection of an accused, has discretion to appoint “ ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant’s self-representation is necessary.” Faretta v. California, supra, at 835, fn. 46. (Emphasis added.) To protect the integrity of the criminal process, the panel owed a duty to temporarily suspend Bishop’s right to proceed in his own behalf so that the sentencing proceedings could be made more complete.
¶17 Although Davis represented himself during trial (with the assistance of standby counsel), he way represented by counsel at the time of the formal post-verdict sentencing proceedings and in the prosecution of his appeal. Com. v. Davis, supra, at 325, fn. 2.
¶18 The record in this case is replete with indications by appellant of his desire to be executed pursuant to law. Moreover, Bishop has communicated his wish to me and the other members of this court.