Opinion
No. 2 CA-CR 2019-0101
11-02-2020
The STATE of Arizona, Appellee, v. Michael David JOHNSON, Appellant.
Mark Brnovich, Arizona Attorney General, Michael T. O'Toole, Acting Section Chief Counsel, By Diane Leigh Hunt, Assistant Attorney General, Tucson, Counsel for Appellee Robert A. Kerry, Tucson, Counsel for Appellant
Mark Brnovich, Arizona Attorney General, Michael T. O'Toole, Acting Section Chief Counsel, By Diane Leigh Hunt, Assistant Attorney General, Tucson, Counsel for Appellee
Robert A. Kerry, Tucson, Counsel for Appellant
Judge Espinosa authored the opinion of the Court, in which Presiding Judge Eppich and Judge Eckerstrom concurred.
ESPINOSA, Judge:
¶1 After a jury trial, Michael Johnson was convicted of weapons possession by a prohibited possessor and was sentenced to a nine-year prison term. Counsel filed a brief in compliance with Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and State v. Clark , 196 Ariz. 530, 2 P.3d 89 (App. 1999), stating he had reviewed the record but found no "tenable issue to raise on appeal" and asking this court to review the record for error.
¶2 Johnson filed a supplemental brief arguing he had been denied his right to waive the assistance of counsel and proceed pro se. Based on our review of the record, we concluded the issue was non-frivolous and directed counsel to file a brief addressing that claim. Upon review of that brief and the state's response, we find reversible error and vacate Johnson's conviction and sentence.
Factual Background
¶3 At the beginning of the first day of trial, Johnson complained about the prosecutor as well as his current counsel, insisting he wanted to "dismiss" his appointed attorney. The court denied that request and Johnson began to leave the courtroom, but he stopped when the court asked him to remain so it could explain further. The court recommended that Johnson remain for his trial and encouraged him to "stay and work with your experienced lawyer who is under an oath to represent you to the best of his ability." The court further stated, "this is not the juncture at which you can dismiss your lawyer and delay the trial. You certainly don't want to represent yourself today." Johnson interjected, "Yes, I do." The court continued "you are ready to go with a lawyer, and it is way too late to make a change of this nature at this time. I don't hear grounds to do so." Johnson resumed his complaints about his counsel and counsel's refusal to pursue a justification defense.
¶4 Johnson also suggested he was being persecuted outside of court by people who had "[s]ho[t] [his] house up and [his] dog with air soft" and placed items on his doorstep—items he wanted to share with the trial court. After a brief discussion with counsel addressing whether to revisit Johnson's previous competency determination, the court agreed to review several "papers" Johnson had brought to court. The court then advised Johnson that he would "have the chance to tell [his] story if [he] chose to testify with the advice of [his] lawyer," and explained that he would have the opportunity to ask questions through counsel. The court also described the trial process and again advised Johnson of his right to testify before calling the potential jurors for selection. Throughout this discussion and for the remainder of trial, Johnson did not again express any wish to represent himself.
Discussion
¶5 The right to counsel includes the right to proceed without counsel. State v. Dunbar , 249 Ariz. 37, ¶ 11, 465 P.3d 527 (App. 2020) ; see also Faretta v. California , 422 U.S. 806, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). "[A]n erroneous denial of the right to proceed pro se by refusing to permit a defendant to waive counsel violates a defendant's constitutional rights and is reversible and structural error." State v. McLemore , 230 Ariz. 571, ¶ 23, 288 P.3d 775 (App. 2012). A defendant must timely and unequivocally invoke the right and, unless the request was made for the purpose of delay, a trial court must grant a timely request if the defendant's invocation is knowing, voluntary, and intelligent. Dunbar , 249 Ariz. 37, ¶¶ 11-12, 465 P.3d 527. A request made before the jury is empaneled is timely. Id. ¶ 12. And a defendant's request to proceed pro se "trigger[s] [a] court's protective duty to ascertain whether [the] waiver of counsel [is] intelligent, knowing and voluntary." McLemore , 230 Ariz. 571, ¶ 25, 288 P.3d 775. A court may not "refuse to consider the defendant's request altogether. Otherwise the constitutional right to defend one-self if he intelligently and competently chooses would be illusory." State v. Martin , 102 Ariz. 142, 145, 426 P.2d 639, 642 (1967).
Validity of Request to Proceed Pro Se
¶6 The state asserts Johnson did not "clearly and unequivocally" request to represent himself and instead was making "a reflexive retort" to a "rhetorical" statement by the trial court. It further contends that Johnson's statement was insufficiently "earnest" or "serious." The state, however, has provided no guidance on how to evaluate the earnestness or seriousness of Johnson's statement based on this record. Nor has it cited authority suggesting that we may discount a defendant's otherwise clear request merely because it was in response to a "rhetorical" statement by a trial court. Johnson affirmatively asserted that he wished to represent himself. The state's argument that this was anything but an unequivocal request to proceed pro se cannot be squared with the record. Cf. State v. Tucker , 231 Ariz. 125, ¶ 22, 290 P.3d 1248 (App. 2012) (noting appellate court should not "provide a post hoc rationale" for trial court's discretionary decision to close courtroom (quoting Carter v. State , 783 A.2d 871, 878 (Md. 1999) )).
Withdrawal or Waiver of Request
¶7 The state also argues that Johnson is not entitled to relief because he did not "secure from the trial court a ruling." We agree it is not entirely clear whether the court addressed Johnson's request. As noted above, the court immediately responded "you are ready to go with a lawyer, and it is way too late to make a change of this nature at this time. I don't hear grounds to do so." Arguably, the court was merely continuing to identify its reasons for denying Johnson's request for new counsel. But its statement reasonably could be interpreted as denying his request to proceed pro se. If the latter, no further analysis is necessary—Johnson is entitled to a new trial. See Martin , 102 Ariz. at 145, 426 P.2d at 642 ; McLemore , 230 Ariz. 571, ¶ 23, 288 P.3d 775.
¶8 Even assuming, however, that the trial court disregarded Johnson's request, we cannot agree with the state that the burden was on Johnson to further pursue the matter. The case it cites, Salt River Valley Water Users’ Ass'n v. Berry , is distinguishable in that it involves neither the invocation of a fundamental constitutional right by a criminal defendant nor a court's (arguable) failure to acknowledge an issue unambiguously raised. 31 Ariz. 39, 52, 250 P. 356 (1926). Instead, the party there simply failed to object to trial testimony, and our supreme court concluded that party thus could not raise the issue on appeal. Id.
¶9 We recognize that Arizona courts have, in the criminal context, placed the onus on counsel to obtain a ruling when the trial court fails to rule on a pending motion. In State v. Lujan , the defendant filed a motion in limine that the trial court did not address. 136 Ariz. 326, 327-28, 666 P.2d 71, 72-73 (1983). When the prosecutor elicited testimony that was the subject of the motion, the defendant did not object. Id. Our supreme court noted the typical rule was that, when a trial court had granted a motion in limine, it was unnecessary for the defendant to also object at trial to preserve the issue on appeal. Id. at 328, 666 P.2d at 73. The court declined to apply that rule, however, because the motion had not been ruled upon and it was the defendant's responsibility to bring the matter "to the court's attention and seeing that a record of the rulings makes its way to the reviewing court." Id. Consequently, the court found the argument waived. Id.
¶10 The rule described in Lujan is inapplicable here. First, Johnson's failure to obtain a ruling would mean only that we would instead review his claim for fundamental, prejudicial error. See State v. Garcia-Quintana , 234 Ariz. 267, ¶¶ 5-6, 321 P.3d 432 (App. 2014). It would not, as the state suggests, mean we would forgo review altogether. And, as this court concluded in McLemore , Lujan is distinguishable in that we are not addressing a motion in limine but instead the "fundamental constitutional right of self-representation which the defendant cannot exercise until the court undertakes the necessary colloquy to ensure the waiver of counsel is constitutionally valid." 230 Ariz. 571, ¶ 28, 288 P.3d 775. Finally, Johnson readily could have interpreted the trial court's statements following his request as denying that request—thus there was no obvious reason for him to believe he needed to pursue an additional ruling from the court.
¶11 In McLemore , this court determined a defendant did not withdraw or waive a motion to proceed without counsel "simply by not pursuing the motion or by reminding the court of the motion." Id. ¶¶ 27-28. We observed that "[t]he right to proceed pro se has not ripened or become effective until the court has granted the request. So McLemore's later conduct allowing counsel to appear on his behalf cannot amount to a waiver of the dormant right to proceed pro se ." Id. ¶ 28. Similarly, we cannot conclude that Johnson's acquiescence to proceeding to trial with counsel effectively withdrew or waived his request to proceed pro se.
¶12 We ultimately concluded in McLemore that the defendant had abandoned his request to proceed pro se, however, because he did not "remind the court of his pending motion when he had the opportunity to do so." Id. ¶ 29. There, the defendant had numerous opportunities before trial to "ask the court to rule on his motion," including a hearing "to determine whether counsel should continue to represent [him] because of a potential conflict." Id. ¶ 36. Little such opportunity existed here, as Johnson made his request just before trial. And, again, on the record before us, Johnson reasonably could have believed the court had denied that request outright.
¶13 We repeat the caution from McLemore by reminding "trial courts to promptly rule on defendants’ motions to represent themselves to avoid the defendant incorrectly assuming the motion has somehow been denied when the defendant wants to pursue the right of self-representation." Id. ¶ 39. And, "such a delay places the defendant in a difficult position because the defendant might feel the need to work with appointed counsel but that cooperation might be deemed to be an abandonment of the defendant's ... motion [to proceed pro se]." Id. We also emphasize that counsel—either for the state or defendant—could have confirmed whether the court had addressed Johnson's request or encouraged it to give the request the required attention.
Competency to Proceed Pro Se
¶14 Last, the state argues that, even if the trial court failed to rule on Johnson's request, denial was nonetheless "compelled" because he was "bordering on incompetency," based on his previous proceedings pursuant to Rule 11, Ariz. R. Crim. P. The state offers no Arizona authority, however, nor are we aware of any, suggesting it would be appropriate for this court to make that determination in the first instance on appeal nor that it is appropriate to remand the matter to the trial court for that purpose.
¶15 The state cites State v. Hayne , 293 Or.App. 351, 427 P.3d 201 (2018), for the proposition that Johnson could be denied the right to proceed pro se based on his competence. In that case, the Oregon Court of Appeals stated it had "the discretion in this circumstance to order a more limited remand for the court to conduct a retroactive assessment of defendant's competency to stand trial without the assistance of counsel, and to consider whether it would have permitted defendant to proceed without counsel in view of that assessment." Id. at 210. But the court declined to do so, noting inter alia that retroactive evaluations of competence have "inherent difficulties." Id. (quoting Drope v. Missouri , 420 U.S. 162, 183, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) ). Here, given the state's minimal development of this argument, we do not further consider whether remand for such a determination is appropriate in this case. See State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995) (insufficient argument waives issue on appeal); State v. Sallard , 247 Ariz. 464, n.2, 451 P.3d 820 (App. 2019) (argument waived for failure of development).
Other cases cited by the state—Indiana v. Edwards , 554 U.S. 164, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008) ; People v. Johnson , 53 Cal.4th 519, 136 Cal.Rptr.3d 54, 267 P.3d 1125 (2012) ; and State v. Burden , ––– Kan. ––––, 467 P.3d 495 (2020) —are readily distinguishable from the facts of this case.
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Conclusion
¶16 Because the denial of the right to proceed pro se by refusing to permit a defendant to waive counsel, without further inquiry, violates his constitutional rights and is reversible error, McLemore , 230 Ariz. 571, ¶ 23, 288 P.3d 775, Johnson's conviction and sentence are vacated, and the case is remanded to the trial court for further proceedings consistent with this decision.