State v. Martin

Decision Date14 April 1967
Docket NumberNo. 1542,1542
Citation102 Ariz. 142,426 P.2d 639
PartiesSTATE of Arizona, Appellee, v. Vernon Oliver MARTIN, Appellant.
CourtArizona Supreme Court

Darrell F. Smith, Atty. Gen., Gary K. Nelson, Asst. Atty. Gen., Jerry L. Smith, Coconino County Atty., for appellee.

Wilson, Compton & Stoops, Flagstaff, Dushoff, Sacks & Corcoran, by Robert J. Corcoran, Phoenix, for appellant.

BERNSTEIN, Chief Justice.

Defendant was charged with First Degree Murder under A.R.S. § 13--452 in the death of one Wesley Hudman. He was tried in the Superior Court for Coconino County and found guilty of the charge. From this conviction and the imposition of the death penalty, the defendant appeals.

The facts are not in dispute. The defendant admittedly shot and killed Hudman. At trial he relied on his defense of insanity. On appeal defendant complains of a wrongful deprivation of the opportunity, one, to present his own defense, two, to take the stand on his own behalf, and three, to properly establish his insanity defense. In addition he contends other enumerated trial irregularities also prevented a fair trial.

The matter of first concern is the defendant's contention that he was wrongfully deprived of an opportunity to conduct his own defense. This assignment of error arises by reason of the fact that his defense was conducted by a court appointed counsel although the defendant had made it exceedingly clear on numerous occasions that he did not wish to be represented by counsel and that he preferred to present his own defense. The defendant claims that the trial court's action in forcing counsel upon him contradicts the constitutional guaranty to defend oneself in propria persona.

Article 2, Sec. 24 of the Arizona Constitution, A.R.S. provides that, 'In criminal prosecutions, the accused shall have the right to appear and defend in person * * *.' This provision has been interpreted to vest in a defendant the 'explicit' right to defend himself should he so choose. State v. Westbrook, 99 Ariz. 30, 406 P.2d 388; State v. Van Bogart, 85 Ariz. 63, 331 P.2d 597. Although this right and the right to the assistance of counsel have been deemed to be of 'equal stature', State v. Westbrook, supra, extreme caution must nevertheless be exercised before recognizing an assertion of the right to defend one-self as a waiver of the right to counsel. Our adversary system in which lawyers in criminal courts become 'necessities, not luxuries' demands this caution. See Gideon & Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799.

In the present case the defendant demanded time and time again that he be allowed to conduct his own defense. Such expressions alone, however, should not be determinative of a waiver of assistance to counsel. As stated in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 'The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused--whose life or liberty is at stake--is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.' 1 Under proper circumstances this may require the court to appoint counsel to conduct the defense despite the defendant's desire to defend for himself. In short, the defendant must not only wish to represent himself, he must also be competent to waive his right to counsel. Westbrook v. Arizona, 384 U.S. 150, 86 S.Ct. 1320, 16 L.Ed.2d 429. In the same breath, however, once it is determined that a competent waiver has been made it is not within the province of the trial judge to thrust counsel upon the defendant. Benton v. United States, 352 F.2d 59 (9th Circuit). This, advisedly, does not mean that under such circumstances the trial judge would be in error to appoint counsel to be present to assist the accused should he later request such assistance.

The problem then in the instant case concerns whether the defendant was able to make an intelligent and competent waiver of counsel.

The record indicates that the court failed to give sufficient consideration to this question. When asked by the defendant why he would not permit him to defend himself, the trial judge replied among other things:

'Because you're not smart enough.'

'No judge ever permits a defendant to represent himself in * * * (a murder case).'

'* * * I will not allow you to go to trial without an attorney. It is far too complicated. You would be doing yourself a disservice and everyone else.'

While it is right that the court should indulge in every reasonable presumption against a waiver, see State v. Anderson, 96 Ariz. 123, 392 P.2d 784, this in no way implies that it should 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.

The trial court judge in the present case ordered two separate hearings under Rule 250 of our Criminal Rules of Procedure, 17 A.R.S. to determine whether the defendant was able to stand trial. It has been firmly established that such a hearing is also to be used to deal with the cautionary requirement relating to the competency of the defendant's waiver of counsel. State v. Westbrook, 101 Ariz. 206, 417 P.2d 530. 2 As a result of this Westbrook decision, a trial court judge, having reasonable grounds to believe a defendant to be insane or mentally defective shall order a '250 hearing' to determine:

'1. Whether (the) defendant is insane or mentally defective to the extent that he is unable to understand the proceedings against him,

2. Whether (the) defendant is insane or mentally defective so as to be unable to assist in his defense, And

3. (If the defendant requests to defend himself) Whether (the) defendant is insane or mentally defective to the extent that he is unable to intelligently and competently waive his constitutional right to the assistance of counsel and conduct his own defense.'

The test to be applied in determining whether one is legally capable of waiving counsel, however, is clearly Not one of legal skills. 3 See United States v. Plattner, 330 F.2d 271 (2nd Circuit); United States v. Redfield, D.C., 197 F.Supp. 559; Burstein v. United States, 178 F.2d 665 (9th Circuit). Rather, as stated in Plattner, supra, it must be:

'* * * (an) inquiry bearing upon the defendant's capacity to make an intelligent choice. In other words, there must be a record sufficient to establish to our satisfaction that the defendant knows what he is doing and his choice is made with eyes open.'

The fundamental question then is not one of the wisdom of defendant's judgment but whether the defendant's waiver of counsel was made in an intelligent, understanding and competent manner. The answer to this question must depend upon the particular facts and circumstances surrounding each case, including the background, experience, and conduct of the accused. All factors relating to the determination of whether the defendant knew exactly what he was doing when he waived his right to counsel are relevant.

In the present case, as indicated previously, little attention was given to the above matters. However, we have stated that this court, on appeal, will affirm the judgment of the trial court reaching a correct legal conclusion although for the wrong reasons, Nicholas v. Giles, 102 Ariz. 130, 426 P.2d 398, filed April 6, 1967; Komarek v. Cole, 94 Ariz. 94, 381 P.2d 773; In re Sherrill's Estate, 92 Ariz. 39, 373 P.2d 353, and the principle applies to the present issue. It is within the trial judge's discretion to refuse to allow a defendant to continue his own defense if he acts in such a manner as to seriously disrupt the proceedings either by refusing to exercise the decorum necessary to orderly proceedings or by denying to the court the respect that is due it. Cf. United States v. Private Brands, Inc., 250 F.2d 554 (2nd Circuit). Although the trial court judge did not state such to be his reason for refusing the defendant here an opportunity to conduct his own defense, the record makes clear that this was, under the circumstances, good reason for appointing counsel to represent the defendant. From the outset, the defendant displayed utter and complete disrespect for the court. His repeated verbal outbursts, the tenor of these outbursts, his consistent disregard of the trial judge's warnings, and his wild antics in general make justifiable the judge's decision to refuse defendant's request to waive counsel.

Defendant claims that the failure of his counsel and the trial judge to honor his constant, and it might be added, vociferous requests to take the witness stand in his own behalf was a denial of a constitutional right and constituted reversible error. With this contention we agree. Article 2, Sec. 24 of the Arizona Constitution provides that, 'In criminal prosecutions, the accused shall have the right * * * to testify in his own behalf * * *.' This does not mean that this right cannot be waived. Clearly when the defendant and his counsel come to the conclusion for any reason that it would be better for the defendant not to testify, the defendant cannot later claim with the benefit of hindsight that the decision to keep him off the stand constituted reversible error. See State v. Galbreath, 97 Ariz. 361, 400 P.2d 842.

The real problem comes where, as here, the defendant unretreatingly demands that he be given the opportunity to testify but his counsel in direct contradiction to the defendant's wishes refuses to put him on the stand. A federal court, sitting in this state, in holding that a defendant was bound by his counsel's decision to waive the sixty day requirement set out in Rule 236 of the Arizona Rules of Criminal Procedure said, 'once he (defendant) elects to be represented by counsel, 4 the conduct of all phases of the trial is under the exclusive...

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