State v. Hanson

• Decision Date: 27 June 1983
• Docket Number: CA-CR,Nos. 2,s. 2
• Citation: 674 P.2d 850,138 Ariz. 296
• Parties: The STATE of Arizona, Appellee, v. Winfield Clarence HANSON, aka James Raymond Hudson, Appellant. 2813, 2 3074-2.
• Court: Arizona Court of Appeals

Page 850

674 P.2d 850

138 Ariz. 296

The STATE of Arizona, Appellee, v. Winfield Clarence HANSON, aka James Raymond Hudson, Appellant.

Nos. 2 CA-CR 2813, 2 CA-CR 3074-2.

Court of Appeals of Arizona Division 2.

June 27, 1983.

Rehearing Denied Oct. 3, 1983.

Review Denied Dec. 20, 1983.

Robert K. Corbin, Atty. Gen. by William J. Schafer, III and Robert S. Golden, Phoenix, for appellee Gurubhai Singh Khalsa, Tucson, for appellant

OPINION

HOWARD, Chief Judge.

Appellant was convicted of eight counts of first-degree burglary, eleven counts of armed robbery, thirteen counts of kidnapping, and one count of attempted armed robbery. These offenses were committed in the course of eight separate hold-ups between August 7 and December 19, 1981, all of which occurred either at a fast-food restaurant or a motel. Appellant was apprehended in the early morning of December 19 after one of the victims, the manager of a Pizza Hut, noted his license plate number. That same morning, he confessed to all but one of the holdups. At trial, his defense was that he did commit the Pizza Hut robbery, but was innocent of the other charges and had confessed to them because of confusion, exhaustion, concern for his wife, and implied threats and promises by the police.

Appellant raises several issues. We will first address the one that necessitates reversal of one of the counts. We disagree with the rest of his contentions and affirm in all other respects.

Appellant contends the trial court erred when it refused to give his requested instruction on renunciation. We agree, and reverse the conviction for attempted armed robbery.

Appellant attempted to rob the Ambassador Inn on September 21, 1981. He entered the building, pointed his gun at the front desk clerk, and ordered her to get down behind the cash register. At that point, another person walked in. Appellant ordered him to get on the floor also. Appellant tried to open the cash register and the safety deposit boxes, but could not. He then said he was going outside and would be right back, and left.

When asked about the Ambassador Inn robbery in his taped confession, appellant said, "I didn't want to hurt anybody so I left. They refused to cooperate. I wasn't about to hurt anybody so I just left .... the girl was so frightened, and I didn't want to do anything to upset her any more."

The next robbery with which appellant was charged occurred on October 8.

A.R.S. § 13-1005(A) provides a defense to a charge of attempted robbery when the defendant made a voluntary and complete renunciation of his criminal intent and made a reasonable effort to prevent the result which was the object of the attempt. Section 13-1005(C) provides that a renunciation is not complete and voluntary if it is motivated either (1) by a belief that the circumstances make the crime more difficult or increase the chance of being apprehended, or (2) by a decision to postpone the conduct to another time or victim.

A defendant is entitled to an instruction on any theory of the case reasonably supported by the evidence. State v. Axley, 132 Ariz. 383, 646 P.2d 268 (1982). Here, there was evidence from which the jury could have decided that appellant abandoned the attempted robbery because the victims were so upset and that he was not motivated by the factors listed in § 13-1005(C). Therefore, because of the failure to give the requested instruction, the attempted armed robbery conviction must be reversed.

Appellant argues that he was denied his right of self-representation when the trial court did not allow him to proceed pro se. After the voluntariness hearing, but before the jury was empanelled, appellant's counsel informed the court that appellant wished to discharge him. The trial court judge invited appellant to address her directly on this matter and appellant explained his concerns at length, referring to motions he felt the attorney should have made on his behalf, their difference of opinion as to an offered plea agreement, the attorney's case load, and his competence at the voluntariness hearing. Appellant's attorney then moved to withdraw from the case, stating "I would ... request the Court to treat Mr. Hanson's motion as, one, to either have a new attorney, or perhaps if he wants to proceed in proper person and represent himself with me as advisory counsel."

The court then denied the motions for new counsel and to withdraw and explained to appellant that many of the issues he felt his counsel had ignored were properly raised by cross-examination rather than by pretrial motion.

The right of a defendant to act as his own lawyer was established in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Because the courts must protect a defendant's right to be represented by counsel, a demand to proceed pro se should be unequivocal. Otherwise, a defendant can claim a violation of his rights on appeal whether he defended himself or had an attorney. In Meeks v. Craven, 482 F.2d 465 (9th Cir.1973), the court stated:

"An 'unequivocal' demand to proceed pro se should be, at the very least, sufficiently clear that if it is granted the defendant should not be able to turn about and urge that he was improperly denied counsel." 482 F.2d at 467.

Here, there was no indication to the trial court that appellant wished to proceed pro se. While appellant's attorney suggested that as an option, appellant himself did not specifically state what he wanted the court to do if his attorney were allowed to withdraw. The tenor of his statement, however, was that he wanted an attorney outside the public defender's office. He said, "I don't know the law when I read it; I don't understand half of it. I felt with outside representation I might have a better chance of finding myself innocent on these ones I did not do." His statement falls far short of an unequivocal demand.

The question then arises whether the trial court should have informed him of his right to represent himself. Appellant argues that he could not have made a knowing, voluntary, and intelligent waiver of this right. The cases he cites, however, all deal with a defendant's waiver of the right to be represented by counsel, not the right to proceed pro se. The two rights are different in nature. It's neither necessary nor appropriate to impose the same standard for establishing their waiver. In People v. Salazar, 74 Cal.App.3d 875, 141 Cal.Rptr. 753 (1977), the difference between the two rights is described as follows:

"Unlike the right to the assistance of counsel, the right to dispense with such assistance and to represent oneself is guaranteed not because it is essential to a fair trial but because the defendant has a personal right to be a fool. This right is afforded the defendant despite the fact that its exercise will almost surely result in detriment to both the defendant and the administration of justice." (Emphasis in original) 141 Cal.Rptr. at 761.

In Salazar, the defendant not only strenuously protested against continued representation by the appointed attorney, but also insisted "that he should be permitted to run his own life." The court held that the trial court had no duty to advise him of his right to represent himself, adding that it would in fact be unwise to suggest such an alternative.

In Russell v. State, 270 Ind. 55, 383 N.E.2d 309 (1978), the Indiana Supreme Court vacated an opinion of its Court of Appeals that had proposed guidelines for enforcing Faretta, including advisement of the right of self-representation at arraignment and hearings when the defendant expressed dissatisfaction with his attorney. It held that such procedures are not only not required under the Constitution, but are not preferred. Self-representation does not further any fair trial interests and is protected solely out of respect for the defendant's personal autonomy.

We agree with both Salazar and Russell. The trial court had no obligation to advise appellant of his right to proceed pro se. Because he did not make an unequivocal and timely assertion of this right, it is deemed to have been voluntarily waived.

Appellant's next argument is that his right to a fair trial was denied because his alias was referred to several times during the trial. No objection was made below, so this issue was waived. State v. Hunt, 118 Ariz. 431, 577 P.2d 717 (1978). But even if an objection had been raised, evidence of the alias was properly admitted. Because evidence of an alias can be prejudicial, it should not be admitted where it serves no useful purpose. State v. Randall, 8 Ariz.App. 72, 443 P.2d 434 (1968). Here, however, appellant had gone by the name James Hudson for several years. His car, through which the police traced him, was registered to James Hudson. That was the name the police used when they went to his house to question him. Thus, the alias was a relevant part of his identification and was necessary to present the complete story to the jury.

Appellant argues that his confession should have been suppressed because it was not voluntary. He testified at the voluntariness hearing, first, that he was so groggy from lack of sleep and so worried about his wife that he could not think clearly and was especially susceptible to psychological pressure, and, second, that the police impliedly threatened to treat his wife as an accomplice if he did not confess. In addition, Detective Sanders told appellant that he would try to get someone to come help his wife and there would be no additional prison time imposed for any robberies beyond the first three.

The state has the burden of showing by a preponderance of the evidence that a confession was not involuntary. However, the trial court's decision will not be disturbed unless there was clear and manifest error. State v. Tison, 129 Ariz. 526, 633 P.2d 335 (1981), cert. den. 454 U.S. 848, 102 S.Ct. 167, 70 L.Ed.2d 136. To satisfy the requirements of due process, the statements must be the product of...