State v. Whalen

• Decision Date: 24 December 1997
• Docket Number: CA-CR,No. 2,2
• Citation: 192 Ariz. 103,961 P.2d 1051
• Parties: The STATE of Arizona, Appellee, v. Carl WHALEN, Appellant. 96-0766.
• Court: Arizona Court of Appeals

Page 1051

961 P.2d 1051

192 Ariz. 103

The STATE of Arizona, Appellee, v. Carl WHALEN, Appellant.

No. 2 CA-CR 96-0766.

Court of Appeals of Arizona,

Division 2, Department A.

Dec. 24, 1997.

Review Denied Sept. 10, 1998.

Grant Woods, the Attorney General by Paul J. McMurdie and Eric J. Olsson, Tucson, for Appellee.

David T. Hardy and John M. Sando, Tucson, for Appellant.

OPINION

BRAMMER, Judge.

Following a jury trial, appellant Carl Whalen was convicted of one count of attempted participation in a criminal syndicate and eight counts of fraudulent scheme or practice. A.R.S. §§ 13-2308, 13-2311. Whalen raises a number of issues on appeal. He contends that the trial court erred by: (1) denying him the right of self-representation; (2) appointing defense counsel to represent him against his will, who then advanced a defense he neither approved nor authorized; (3) failing to direct a verdict in his favor as to all charges based upon insufficient evidence; and (4) failing to enter a judgment of acquittal or to grant a new trial on the fraudulent scheme charges because insufficient evidence was produced that he had the required fraudulent mental state. Whalen also raises a claim of ineffective assistance of counsel. We affirm.

Facts and Procedural History

We view the record in the light most favorable to sustaining the verdicts and resolve all inferences against appellant. State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992). In April 1995, Whalen was stopped by a Tucson police officer for failure to display a license plate. When asked for his driver's license, insurance, and registration, Whalen informed the officer that he did not possess any of the requested documents because he was "a citizen of the Republic of Arizona." The officer then issued citations for failure to display a license plate, expired registration, no proof of insurance, failure to transfer title, no valid driver's license, and driving on a suspended or canceled driver's license. In February 1996, Whalen was tried in absentia and found guilty in municipal court on all counts.

Before the trial date, Whalen and two other individuals began mailing letters to the officer who cited Whalen, the Tucson police chief, and other public officials including three city court magistrates who presided over various aspects of Whalen's case. In these mailings, Whalen claimed that the recipients had violated his constitutional rights. He also threatened to impose liens against them and demanded payments ranging from $25,000 to $1,000,000 in silver. Included in the first mailing were unsigned lien forms and unsigned admissions that the recipients had violated Whalen's rights. A second mailing contained notices of default and lien forms with the recipients' names printed on them. Whalen then published notice of the liens in a local newspaper. He also recorded numerous liens against the recipients which bore their forged signatures and which were embossed with a crimped seal bearing the logo "County of Arizona." The police chief also received a letter from Whalen stating that "the promissory notes and the name of indemnity bonds will automatically delete" if the chief stopped infringing his rights and promised that "future trespass will not occur."

Whalen and his two accomplices were subsequently arrested, charged and convicted. ¹ Each moved to represent himself in propria persona. The court found that all three defendants had knowingly and intelligently waived the right to counsel and redesignated the defendants' appointed attorneys to "advisory counsel" status. After Whalen indicated that he refused to accept advisory counsel, advisory counsel moved to withdraw. This motion was denied.

Before trial, Whalen and his codefendants filed numerous motions, claiming that the court lacked jurisdiction over them. ² During pretrial hearings, the court explained to the defendants that jurisdiction had been established, instructing them that if they did not appear for trial, they would be tried in absentia. On the first day of trial, the defendants again objected to the court's jurisdiction and refused to cross the bar into the front of the courtroom, explaining it was their belief that doing so would waive jurisdictional objections. The court informed them they would not be allowed to conduct their respective defenses unless and until they agreed to do so from the front of the courtroom. After again refusing to cross the bar, the court stated that the defendants had "voluntarily absented themselves" from the proceeding.

The court then advised the defendants that because they were not in custody, they had the right to "leave the courtroom if [they wished] to and not participate in any fashion even as a spectator," adding that it was in their interests to participate in the trial and encouraging them to do so. The court again informed the defendants that jurisdiction had been established and that stepping in front or staying behind the bar would not affect that determination.

The court then ordered advisory counsel to represent the defendants as they "would have had the defendants simply absented themselves physically," whereupon counsel expressed their concerns about representing the defendants because the defendants did not wish them to do so. Counsel also asserted that caselaw suggested that the defendants had the right to put on their defenses as they saw fit, even if that meant remaining mute throughout the proceedings. The court responded that the defendants "have not even been willing to minimally follow the rules, and the rules require that they come forward, sit at the table, and at that point they could then choose to be mute throughout the entire trial." Meanwhile, Whalen left the courtroom. He subsequently appeared in court sporadically throughout trial.

Right to Self-Representation

Whalen first contends that the trial court's refusal to permit him to conduct his own defense constitutes reversible error. He asserts that he desired to conduct his defense but that he wanted to do so "not from counsel table, but from a position about three feet away," because he believed, as he told the court, that by sitting at the defense table he would waive jurisdictional objections. A defendant in a state criminal trial has a constitutional right to proceed without counsel when the defendant knowingly, intelligently, and voluntarily elects to do so, Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); State v. De Nistor, 143 Ariz. 407, 694 P.2d 237 (1985); State v. Martin, 102 Ariz. 142, 426 P.2d 639 (1967), but only so long as the defendant "is able and willing to abide by the rules of procedure and courtroom protocol." McKaskle v. Wiggins, 465 U.S. 168, 173, 104 S.Ct. 944, 948, 79 L.Ed.2d 122, 130 (1984).

Assuming arguendo that Whalen intended to defend himself, we find no error in the trial court's refusal to allow him to represent himself unless and until he was willing to do so from the front of the courtroom. Whalen argues that there is a narrow class of behavior, not encompassing his, which can justify termination of the right of self-representation. He contends the trial court may do so only when a defendant "deliberately engages in serious and obstructionist misconduct," relying on Faretta, 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46, 45 L.Ed.2d at 581 n. 46, and that an examination of the few Arizona cases invoking this exception illustrates its narrow character, citing Martin, 102 Ariz. at 146, 426 P.2d at 643 (the defendant displayed utter and complete disregard for court, made repeated verbal outbursts, consistently disregarded the trial judge's warnings, and performed "wild antics," justifying the trial judge to refuse defendant's request to waive counsel). ³

We do not find that the court's ability to terminate a defendant's right to self-representation is as circumscribed as appellant claims. Initially, we find very little instructive caselaw pertaining to the pro se defendant's refusal to follow court-imposed protocol. The United States Supreme Court, federal courts, and state courts, including Arizona's, have not yet determined specific standards by which a trial court may deny or revoke a defendant's right of self-representation based upon in-court behavior. ⁴ Although, as Whalen contends, Faretta, in a footnote, mentions, without elaboration, that "the trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct," 422 U.S. at 834 n. 46, 95 S.Ct. at 2541 n. 46, 45 L.Ed.2d at 581 n. 46, it does not suggest that this is the only type of behavior that may warrant such a revocation. ⁵ Similarly, neither Martin, nor the other Arizona cases upholding denial or termination of the right of self-representation because of in-court misconduct, have suggested that it is only defendants engaged in such behavior who may waive the right to proceed pro se.

Martin holds that it is within the trial court's discretion to deny a defendant the right 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 ensuring an orderly proceeding or by denying the court due respect, citing United States v. Private Brands, Inc., 250 F.2d 554 (2nd Cir.1957). Martin upheld the trial court's denial of defendant's request to waive counsel, even though the court had not told the defendant it refused his request because of his ongoing in-court misconduct. In situations such as in Martin, the defendant's actions often make an orderly proceeding impossible and, as is often the case, the obstreperous behavior is for this very purpose. Thus, the necessity of denying or withdrawing the right of self-representation is often clear.

Here, although Whalen refused to cross the bar into the front of the courtroom, we cannot say whether he intended to disrupt the trial process, or whether he was aware that his...