State v. Johnson
| Decision Date | 02 November 2020 |
| Docket Number | No. 2 CA-CR 2019-0101,2 CA-CR 2019-0101 |
| Citation | 477 P.3d 689,250 Ariz. 230 |
| Parties | The STATE of Arizona, Appellee, v. Michael David JOHNSON, Appellant. |
| Court | Arizona Court of Appeals |
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
¶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.
¶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, Johnson interjected, "Yes, I do." The court continued 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.
¶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 State v. Martin , 102 Ariz. 142, 145, 426 P.2d 639, 642 (1967).
¶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) ().
¶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
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 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 counse...
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