Hymon v. State

• Decision Date: 26 May 2005
• Docket Number: No. 41378.,41378.
• Citation: 121 Nev. 200,111 P.3d 1092
• Parties: Roderick Lamar HYMON, Appellant, v. The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

111 P.3d 1092

121 Nev. 200

Roderick Lamar HYMON, Appellant, v. The STATE of Nevada, Respondent.

No. 41378.

Supreme Court of Nevada.

May 26, 2005.

Rehearing Denied July 26, 2005.

Michael H. Schwarz, Las Vegas, for Appellant.

Brian Sandoval, Attorney General, Carson City; David J. Roger, District Attorney, James Tufteland, Chief Deputy District Attorney, and Noreen C. Nyikos, Deputy District Attorney, Clark County, for Respondent.

Before ROSE, GIBBONS and HARDESTY, JJ.

OPINION

By the Court, HARDESTY, J.:

During the guilt phase of the trial, appellant Roderick Lamar Hymon, who was representing himself, was required to wear an electronic stun belt as a result of his threat to kill the trial judge. On appeal, we address under what circumstances a defendant in a criminal trial may be required, as a security measure, to wear a remote-controlled electronic stun belt.

FACTS

On April 8, 2001, Betty Crisman was alone in the lobby area of Chick's Tire & Auto Repair in Las Vegas when Hymon entered and walked to the counter. Hymon suddenly turned around and grabbed Crisman's purse. Following a brief struggle, Hymon gained control of the purse and ran out the door. Crisman screamed that Hymon had stolen her purse.

Two of Chick's mechanics, Clyde Estabillo and Stanley "Red" Turner, were standing in the garage just on the other side of the lobby door and heard Crisman's scream. They saw Hymon running from the lobby with a purse under his arm and chased Hymon, catching him when he fell on the curb. Hymon stood up, swinging a four- to six-inch long pocketknife at his pursuers. Estabillo and Turner backed away, allowing Hymon to escape over a nearby fence.

Estabillo located two police officers, who caught and arrested Hymon. Estabillo and Crisman identified Hymon at the scene.

Hymon requested to represent himself in the district court proceeding. A few days after Hymon's request, the district court conducted a Faretta¹ canvass. The district court questioned Hymon on the topics listed in SCR 253 but omitted a question regarding whether Hymon understood the possible penalties or punishments. Hymon gave appropriate responses to all of the questions. Subsequently, the district court concluded that Hymon was competent to waive his right to counsel and he was doing so freely, voluntarily and knowingly. The district court appointed standby counsel.

A few months later, the prosecutor and standby counsel told the district court that Hymon was being uncooperative, and they were having problems communicating with him. Hymon became very agitated, and the district court revoked Hymon's right to represent himself and appointed new counsel.

Hymon's counsel eventually requested a psychological evaluation to determine Hymon's competence to stand trial. Hymon was removed from the courtroom after an unruly outburst. The district court ordered a psychological evaluation, but Hymon refused to see the psychologist. The psychologist recommended that Hymon be declared incompetent until a complete evaluation could be performed.

Hymon then moved to dismiss his counsel. The district court ordered another psychological evaluation. Several months later, Lake's Crossing declared Hymon competent to stand trial, but it noted that Hymon had an antisocial personality disorder.

At calendar call on November 27, 2002, Hymon claimed that he was being represented against his will and denied his right to self-representation. Hymon's counsel informed the court that he had attempted to see Hymon several times, but Hymon refused to meet. The district court continued the hearing and, upon reconvening, conducted another Faretta canvass.

The district court again questioned Hymon from the list in SCR 253. Hymon gave appropriate responses to all of the questions, but the district court was concerned with Hymon's understanding of his available defenses. Hymon stated that one of the main reasons he wanted to represent himself was because his counsel would not present the defense that Hymon wanted. Hymon explained that while the State had sufficient evidence to prove that he committed the robbery, his rights were violated in the justice court. Hymon argued that the jury should be informed of his constitutional rights, and he stated that he would argue that he had been denied due process and should be acquitted. The district court stated that Hymon was not articulating a viable defense. Finally, after much discussion, the district court stated that under SCR 253(4), it could not "in good conscience rubber-stamp these findings." The district court stated that it could not allow Hymon to represent himself. However, after an unrecorded bench conference, the district court stated, on the record, that this court has said that if the defendant is competent to stand trial, then the defendant must be allowed to represent himself. Accordingly, the district court allowed Hymon to represent himself but appointed standby counsel.

The jury was selected without incident on December 2, 2002. At some point during the day, before the jury returned to the courtroom, the district court sought confirmation that Hymon was not cuffed or in shackles. The corrections officer responded that Hymon was not, but he was wearing a stun belt. The district court responded, "He's been good. You want to keep him in the [stun] belt?" The corrections officer's reply was not audible, but the district court responded, "All right," and Hymon remained in the belt.

During his opening statements to the jury, Hymon focused on the violation of his rights during all of the proceedings. He opened his clothes and revealed the stun belt. Hymon told the jury that the district court placed him in the belt and if he does something that the bailiff does not like, he will be electrocuted. Hymon claimed that the district court was not impartial because it would not allow Hymon to present evidence.

At the end of the day and outside the jury's presence, the district court made a record of why it ordered Hymon to wear the stun belt. The district court stated that it received a copy of a letter that Hymon had written to the Civil Rights Volunteers of the Nevada Bar Association. The letter requested that the Civil Rights Volunteers make the district court judge recuse himself. The letter stated, "If I have to, I will murder him." A copy of the letter was provided to the district court. The district court told Hymon that this direct threat caused the district court to order Hymon to wear the belt. Hymon complained that the district court did not hold a hearing before ordering him to wear the belt. The district court responded that it need not hold a hearing upon receiving such a threat.

The next day, the State requested that the district court explain the belt to the jury. Hymon admitted to sending the letter; however, he again complained about the lack of a hearing. Hymon stated that the district court was not following the rules, and he complained that if he did anything combative, the belt would blow him up. The district court admitted that it should have shown Hymon the letter first. When the jury was brought in, the district court instructed the jury that the stun belt was a standard security procedure and that they should not draw any inferences from it concerning the defendant's character or propensity for violence.

After the jury returned a guilty verdict, Hymon requested counsel for sentencing, and the district court appointed the attorney who had served as standby counsel. The State advised the district court it had certified copies of Hymon's prior convictions. Hymon objected, claiming that some of the convictions could not be used for habitual criminal status and the State failed to previously provide him with copies. Hymon became hostile, and the district court had him removed from the courtroom.

Sentencing was continued two days later. The prosecutor stated, "I have in my hand the certified copies, and for the record, I have a certified copy of [five of Hymon's prior convictions]. May I approach, Judge, and have them marked?" The district court consented. Hymon questioned the number of prior convictions. The State provided Hymon with another copy of the convictions, and the district court trailed the proceedings so that Hymon could review them. Upon resuming the proceedings, Hymon successfully argued that one of the convictions was not valid for habitual criminal status, leaving four valid convictions. The district court found Hymon to be a habitual criminal. However, the State never requested to have the judgments of conviction admitted, and the district court never stated that they were admitted.

DISCUSSION

On appeal, Hymon argues that the district court: (1) should have promptly disclosed that it received a copy of Hymon's letter and conducted a hearing before requiring him to wear a stun belt, (2) abused its discretion by allowing Hymon to represent himself after performing an inadequate Faretta canvass, and (3) erred by sentencing Hymon as a habitual criminal when the judgments of conviction were not admitted into evidence.² Stun belt

We take this opportunity to explain under what circumstances the district court may compel a defendant to wear a stun belt during the guilt phase of a trial.

A stun belt is a means of prisoner restraint. It is an electronic device that is secured around the prisoner's waist, arm or leg. It is generally worn beneath the defendant's shirt or jacket and is not visible to the jury. The belt, which may be activated remotely, delivers a high voltage electrical current throughout the defendant's body.³ The record in this case does not address how activation of a stun belt, like that Hymon was required to wear, might affect the person wearing it. However, numerous cases provide a detailed discussion. These cases indicate that activation may cause incapacitation, severe pain, uncontrolled defecation or urination, muscular weakness, heartbeat irregularities or...