State v. Starcevich, 2

• Decision Date: 16 December 1983
• Docket Number: No. 2,CA-CR,2
• Citation: 139 Ariz. 378,678 P.2d 959
• Parties: The STATE of Arizona, Appellee, v. Alexander (Jerry) STARCEVICH, aka Alexander (Jerry) Starvich, Appellant. 3071.
• Court: Arizona Court of Appeals

Page 959

678 P.2d 959

139 Ariz. 378

The STATE of Arizona, Appellee, v. Alexander (Jerry) STARCEVICH, aka Alexander (Jerry) Starvich, Appellant.

No. 2 CA-CR 3071.

Court of Appeals of Arizona,

Division 2.

Dec. 16, 1983.

Review Denied Feb. 28, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III and Linda A. Akers, Phoenix, for appellee

Frederick W. McNeill, Tucson, for appellant.

OPINION

BIRDSALL, Judge.

The principal question presented in this appeal is whether the trial court employed every feasible means to enable the appellant, who was removed from the courtroom at the beginning of the trial, to hear, observe or be informed of the further course of the trial and to consult with counsel in compliance with Rule 9.2(c) of the Arizona Rules of Criminal Procedure, 17 A.R.S. We hold that the trial court did adequately protect the appellant's rights in this regard.

The appellant was charged and ultimately convicted of kidnapping and three counts of sexual assault. Although the decision of the trial court to remove him for disruptive and disorderly conduct is not questioned, he contends that the court violated the foregoing rule. He argues that more should have been done to enable him to participate in the trial short of returning him to the courtroom.

After 611 days in custody as a result of his arrest on the charges, a matter we address later in this opinion, the appellant's trial commenced January 18, 1983. With the jury panel waiting outside, the court proceeded with some preliminary matters in open court with the appellant and his counsel present together with the prosecutrix. After eight interruptions by the appellant personally in the nature of short comments and questions, the following ensued:

"THE COURT: Mr. Starcevich, we are going to have to get something settled right now.

You are going to be quiet during this trial, except when you are on the witness stand, if you choose to testify. Otherwise, you are going to have to leave the courtroom.

Do you understand me?

DEFENDANT STARCEVICH: I beg your pardon, Your Honor?

THE COURT: Do you understand me, Mr. Starcevich?

DEFENDANT STARCEVICH: I understand the other day when I was here, I didn't get a chance to hear the motions. I understand that, Your Honor.

THE COURT: Mr. Starcevich, do you understand that if you do not keep quiet, you will not be allowed to stay in the courtroom?

DEFENDANT STARCEVICH: And?

THE COURT: And the trial will proceed without you.

DEFENDANT STARCEVICH: And I will be convicted without being present?

THE COURT: If you choose to talk during court, yes, sir.

DEFENDANT STARCEVICH: Uh-uh. No."

A brief discussion of requested voir dire questions including the names of prospective witnesses followed with no interruptions until the prosecutrix mentioned a name whereupon the appellant interjected:

"DEFENDANT STARCEVICH: Never heard of her. She must have been that junkie."

The court and appellant then had the following exchange:

"THE COURT: Mr. Starcevich.

DEFENDANT STARCEVICH: Never heard of her, though.

I'll not be railroaded here. I don't care who you are.

You didn't give me an opportunity to hear the motions the other day.

THE COURT: Would you take the defendant out? DEFENDANT STARCEVICH: You tell them about Fred McNeill.

You get back punk. You don't arrest me without no warrant, in the first place.

You don't proceed without me. You know you can't do this. You know what I mean.

I suggest you go in the back room and go through all those motions I presented.

I didn't hear one motion presented, not one.

Would you please do me a favor, Mr. Emanuel, and bring up the fact of Mr. McNeill, after the A.B. trial, to look into my case?

MR. EMANUEL: (defense counsel) I will.

DEFENDANT STARCEVICH: Please bring that up.

MR. EMANUEL: I will.

DEFENDANT STARCEVICH: If he tries to convict me without that mandamus prohibition being first looked after, then I think you're making a mistake.

You should at least wait for the Habeas Corpus motion to be handed down from the appeals court before you start deciding about the lower court decisions.

I'm a member of the Brethren. You don't be pushing me around, punk."

The appellant was then removed but before proceeding the court advised counsel:

"THE COURT: ... I'm going to ask the bailiff, when the bailiff returns, to get 33 jurors and we are going to proceed.

While that is going on, I suggest that you talk to your client and explain that I mean exactly what I say, that we are not going to have disruption in the courtroom.

If he wants to come back under those circumstances, he is welcome back.

But the first signs that he is not going to abide by those rules, he will again be removed.

MR. EMANUEL: I will talk to him in a little bit, Your Honor.

I did give him a written letter last evening, explaining all this to him and--

THE COURT: Perhaps, a copy of that may be filed with the record.

MR. EMANUEL: I have no problem with that, Your Honor.

THE COURT: You have made the representation that you have explained it to him. That is all that is necessary."

The court then asked appellant's trial counsel to go see the appellant and see what he wanted to do about returning and a recess was taken.

After the recess the following record was made:

"THE COURT: Before the jurors are called, there are some matters that need to be put on the record.

As Mr. Starcevich was leaving, going down the hall, I understand that he attempted to assault Detective Taylor and the deputy accompanying him.

And some force was needed to restrain Mr. Starcevich, which resulted in some injuries.

Do you want to expand on that?

MS. JORGENSON: (prosecutrix) Yes. Detective Taylor.

MR. TAYLOR: Would you like for me to, Your Honor?

THE COURT: Sure. That would be fine. Go ahead.

MR. TAYLOR: I went out to make sure that the detective got in the elevator okay with Mr. Starcevich. I anticipated a problem.

As he walked by, he became verbally abusive to me and started to run at me.

Detective Stanbrook subdued him. We both took him to the floor.

It appeared he had some kind of slight, small laceration behind his left ear.

He went down to the holding area with no trouble.

I returned his legal paperwork for him to the security area. THE COURT: All right. Under the provisions of Rule 902, a defendant who engages in disruptive or disorderly conduct, after having been warned by the Court that such conduct will result in his expulsion from a proceeding, shall forfeit his right to be present at that proceeding.

It is under that provision that I had Mr. Starcevich removed.

However, 9.2(B) provides: The Court shall grant any defendant so excluded reasonable opportunities to return to the court upon his personal assurance of good behavior. Any subsequent disruptive conduct on the part of the defendant may result in his exclusion without additional warning.

I understand that you talked with him, Mr. Emanuel, and told him that he could come back, on his assurance of good behavior, an assurance he is not yet prepared to make.

I understand, as well, from Detective Taylor and Detective Stanbrook that he may not presently be in a mental frame of mind, where he could abide by such an assurance.

Have I fairly stated the information that has been revealed to me?

MR. EMANUEL: Yes.

THE COURT: Very well. What I propose, then, to do is to proceed with jury selection this morning, to recess at the conclusion of selecting a jury, leaving opening statements and the giving of testimony for this afternoon.

I intend, before the jury returns, to have Mr. Starcevich brought to court, where I will again advise him of his right and the requirement of his assurance of good conduct as a condition of his remaining in the courtroom.

If he chooses to stay and abide by an assurance of not disrupting the processes of the court, then, of course, that will solve the problem, unless he again disrupts.

I am also taking steps to see if we can arrange to have video coverage of the testimony of witnesses, by moving to Judge Brown's courtroom. And that requires some scurrying around at the lunchroom recess.

If we can, and arrange to have a security area where he can view the testimony, we will do so.

And I will recess at the conclusion of direct-examination of the alleged victim, so that Mr. Emanuel will have an opportunity to consult on proposed cross-examination with Mr. Starcevich.

MR. EMANUEL: I think that I'm going to have to have him in some way, either through the television or otherwise, on the jury selection process.

I think he has a right to assist counsel in the selection of the jury.

THE COURT: I think that's right. I'll tell you what. What we will do when we recess and you have to do your strikes, we can arrange for you to go consult with him.

MR. EMANUEL: He would have to--

THE COURT: You can furnish the information you have learned.

He has forfeited the right to be present at this proceeding. We will proceed.

And you may go review what you have learned about the prospective jurors and consult him with respect to the strikes you want to make.

MR. EMANUEL: If that is Your Honor's ruling.

THE COURT: That is my ruling."

The voir dire of the jury panel followed. After the trial jury was selected and sworn, the court recessed, directing the jurors to reconvene at 2 p.m. in courtroom 480 (Judge Brown's). After the jurors left, the appellant's counsel informed the court:

"MR. EMANUEL: ... The other matter is why the defendant has not come back into the courtroom.

I spoke to him on striking the jurors and selecting the jurors and had a great deal of trouble focusing him on that issue, and did not really receive anything from him in the way of any assistance in that regard.

He is concerned about his preoccupation with his allegation that Detective Taylor assaulted him, injured his leg, as well as his neck; and that he will ultimately get justice; and that he is going to be railroaded, anyway.

And he does not...