State v. Johnson, No. 2 CA-CR 2019-0101

• Court: Court of Appeals of Arizona
• Writing for the Court: ESPINOSA, Judge
• Citation: 477 P.3d 689,250 Ariz. 230
• Parties: The STATE of Arizona, Appellee, v. Michael David JOHNSON, Appellant.
• Decision Date: 02 November 2020
• Docket Number: No. 2 CA-CR 2019-0101

250 Ariz. 230
477 P.3d 689

The STATE of Arizona, Appellee,
v.
Michael David JOHNSON, Appellant.

No. 2 CA-CR 2019-0101

Court of Appeals of Arizona, Division 2.

Filed November 2, 2020

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

477 P.3d 691

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 ...