Badger v. Cardwell

• Decision Date: 26 October 1978
• Docket Number: No. 76-3703,76-3703
• Parties: Fred Walking BADGER, formerly known as Fred Delvecchio, Plaintiff-Appellant, v. Harold J. CARDWELL, Superintendent, Arizona State Prison, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 968

587 F.2d 968

Fred Walking BADGER, formerly known as Fred Delvecchio Plaintiff-Appellant, v. Harold J. CARDWELL, Superintendent, Arizona State Prison Defendant-Appellee.

No. 76-3703.

United States Court of Appeals Ninth Circuit.

Oct. 26, 1978.

Rehearing and Rehearing En Banc Denied Dec. 18, 1978.

Victor Aronow (argued), Tempe, Ariz., for plaintiff-appellant.

Galen H. Wilkes, Asst. Atty. Gen. (argued), Phoenix, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before MERRILL and HUFSTEDLER, Circuit Judges, and BURNS, ^* District Judge.

BURNS, District Judge:

The case is before us on appeal from a decision by the district court denying appellant's petition under 28 U.S.C. § 2254 for a writ of habeas corpus. Our jurisdiction stems from 28 U.S.C. §§ 1291 and 1294(1).

I. FACTS:

In 1972, appellant, Fred Walking Badger, ¹ and a co-defendant, Jesse Bojorquez, were prisoners in the custody of the State of Arizona at the penitentiary in Florence. They were accused by indictment of assaulting three prison guards on October 8, 1972. In March, 1973, they were brought to trial in state court. Each defendant elected to represent himself, although standby counsel was provided. Their trial lasted six days. Under circumstances which we examine below, appellant was expelled three times and finally barred from further proceedings until the imposition of sentence. On March 14, 1973, the jury returned a verdict of guilty as to both defendants on two counts of assault to commit murder and one count of being prisoners in possession of a weapon. On the basis of this conviction appellant was sentenced to 20 years' imprisonment.

An appeal was taken to the Arizona Supreme Court, which affirmed. Arizona v. Delvecchio, 110 Ariz. 396, 519 P.2d 1137 (1974). The petition to the district court followed, alleging principally that appellant had been denied his right to be present during trial. ² We agree.

II. DISCUSSION:

The right of an accused to be present at his trial is an ancient and well-established one which draws on several constitutional sources. In Hopt v. People of the Territory of Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 28 L.Ed. 262 (1884), the Supreme Court held that the due process clause of the Fifth Amendment requires the defendant's attendance at trial. On the same footing, the right was declared applicable to states "to the extent that a fair and just hearing would be thwarted by (the defendant's) absence." Snyder v. Massachusetts, 291 U.S. 97, 107-108, 54 S.Ct. 330, 333, 78 L.Ed. 674 (1934); Lowery v. Cardwell, 535 F.2d 546, 549 (9th Cir. 1976). More recently, the Supreme Court has stated that the confrontation clause of the Sixth Amendment guarantees the right of an accused to be present not only whenever testimony is taken, Snyder, supra, 291 U.S. at 102, 54 S.Ct. 330, but "in the courtroom at every stage of his trial." Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct. 1057, 1058, 25 L.Ed.2d 353 (1970); Compare Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 56 L.Ed. 500 (1912). This corollary of his right of confrontation was incorporated into the Fourteenth Amendment and made applicable to the states in Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). Allen, supra, 397 U.S. at 338, 90 S.Ct. 1057; Bustamonte v. Eyman, 456 F.2d 269, 271-273 (9th Cir. 1972).

The right to be present, thus secure, is however not absolute. Polizzi v. United States, 550 F.2d 1133, 1137 (9th Cir. 1976). While we would have defendants present at their trials, we must also have those trials fair and conducted in an atmosphere of sufficient calmness and decorum.

It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated.

Allen, supra, 397 U.S. at 343, 90 S.Ct. at 1061. Dictum in Snyder, supra, 291 U.S. at 106, 54 S.Ct. at 332, had indicated that "the privilege (of presence) may be lost . . . at times even by misconduct." In Allen, supra, the Supreme Court expressly held that

a defendant can lose his right to be present at trial if, after he has been warned, by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner So disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom. Once lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings. (Emphasis added.)

397 U.S. at 343, 90 S.Ct. at 1061.

Appellant's absence from the courtroom on March 8, March 13, and March 14 constitutes a Prima facie denial of his right to be present. Appellee raises, as a defense, acts of misconduct which he alleges waived that right. We must decide whether appellant's behavior at trial did rise to the level of misconduct described in Allen. If it did not, we must decide further whether the error of the trial court in excluding appellant was harmless.

A. Was it error to exclude the defendant?

The Allen standard is notably couched in general terms. It announces no Per se rule of excludable conduct. It remits us to a careful examination of the record. But in looking at the unique facts of this case, we must do so in light of Allen and its progeny.

In Allen, the defendant continued to talk after he had been replaced by appointed counsel, threatened to make a corpse of the judge, threw the papers of his file on the floor, declared that he would prevent any trial whatsoever, and responded to questions with vile and abusive language. The decision of the trial court to exclude him was sustained.

In United States v. Ives, 504 F.2d 935 (9th Cir. 1974), the leading case applying Allen in this circuit, the defendant refused to answer questions, argued with the judge, struck defense counsel on several occasions, shouted from his cell beneath the courtroom, and physically attacked the United States attorneys. His exclusion was likewise sustained.

Most recently, in United States v. Kizer, 569 F.2d 504 (9th Cir. 1978), the defendant interrupted the prosecuting attorney's closing argument, demanded discharge of her attorney and a new trial, and continued to argue with the judge after her motions were denied. This court upheld the order to remove her.

These decisions give some idea of the nature of misconduct which heretofore has justified exclusion of the defendant. They therefore provide a useful comparison for each of the trial court's rulings in the case at hand.

1. The first expulsion.

a) Events.

At an appearance on January 11, 1973, two months before trial, appellant interrupted the remarks of other parties several times and changed the subject to inquire of motions he had filed. The trial judge clearly warned him that "unruly or disruptive" behavior at trial would forfeit his right to conduct his defense and to stay in the courtroom. Tr. Jan. 11, pp. 20, 28, 31.

These warnings were forcefully repeated on the first day of trial, March 6, 1973, when it was finally determined that appellant would represent himself. ³ Shortly afterwards, during the selection of jurors, the defendant raised several matters out of turn, and once interrupted the judge as he was talking to him. When he interrupted the judge two more times in quick succession, and insisted that witnesses leave immediately before the jury entered, the court stopped and issued an extended warning that it, not the defendant, would preside in the courtroom. During this warning the defendant interrupted the judge and inquired, "Are you looking for excuses, Your Honor, to take me out of the court?" The rest of the day passed without further serious incident, although the defendant was variously guilty of interrupting, asking repetitive questions, and arguing his case or with the witnesses. On each occasion he was admonished. Tr. Mar. 6, pp. 3, 4, 9, 10, 68, 71, 76, 125, 129, 133, 180-1, 184, 196.

On March 7, the second day of trial, the defendant's participation was limited to cross-examination of prosecution witnesses. From time to time he became argumentative and had to be admonished. On one occasion he entered into an irrelevant dialogue with a witness. Tr. Mar. 7, pp. 24, 46, 63, 68, 74, 77, 115-6, 193.

On March 8, the third day of trial, the court took up several housekeeping matters before calling in the jury for resumption of the testimony. The defendant learned that the witnesses he had planned to call first would not be available until later. The court denied his motion for a continuance until they arrived. Next, copies of proposed instructions were distributed early, to give the parties extra time for study. The court denied the defendant's immediate motion to dispense with instructions, prompting him to complain that "I can't have my trial and my rights at the same time." Thereupon co-defendant Bojorquez moved that new counsel be assigned to him, saying his present attorney had failed to make objections on his behalf. The court denied this request as well and was proceeding to explain the limited role of standby counsel when defendant interrupted to provoke an increasingly heated dialogue. ⁴ After arguing with the judge, appellant raised a clenched fist, and finally taunted the court to expel him. The court obliged. Tr. Mar. 8, pp. 2-5.

b) Analysis.

In judging whether the preceding events constituted sufficient grounds for concluding that the trial could not have proceeded fairly and efficiently so long as appellant was present in the courtroom, we are mindful that we are engaged, to some extent, in "second guessing." Deference would be owed in any event to the decision of the judge in whose hands the...