State v. Martin
426 P.2d 639
Ariz.
1967
Check Treatment

*1 P.2d 639 Arizona, Appellee, STATE MARTIN, Appellant.

Vernon Oliver No. 1542. Court Arizona.

In Banc. April *2 Smith, Gen., .Gary Atty. K.

Darrell F. Gen., Smith, Jerry Nelson, Atty. L. Asst. appellee. County Atty., for Coconino Wilson, Compton Stoops, Flagstaff, & Corcoran, *3 Dushoff, by Robert Sacks & J. Corcoran, Phoenix, appellant.

BERNSTEIN, Chief Justice. Degree charged

Defendant with First death Murder under A.R.S. 13-452 § Wesley tried of one Hudman. He was County Superior Court for Coconino this guilty charge. and found of the From imposition the death conviction and the penalty, appeals. dispute. de- The facts are not The admittedly fendant and killed Hudman. shot in- At trial he relied defense of on his sanity. appeal complains of On deprivation opportunity, wrongful of the one, defense, two, present to take his own behalf, three, the stand on his own properly insanity establish his defense. he addition contends other enumerated irregularities prevented a fair trial. also the defend- The matter of first concern is wrongfully ant’s that he contention deprived opportunity conduct his of an assignment own of error defense. This by defense arises reason of the fact that his by appointed a court counsel conducted ex- although the defendant had made ceedingly clear on numerous occasions by represented he did not wish to be present preferred he his own defense. The claims forcing action in court’s guaranty him contradicts the constitutional persona. propria to defend oneself Article 24 of the Arizona Sec. that, Constitution, provides “In crim A.R.S. prosecutions, inal have the accused shall appear person right * * defend in provision has been inter- This “explicit” preted to vest defendant the right choose. to defend himself should he so Westbrook, 30, 406 State v. 99 Ariz. P.2d Bogart, State Van Although right this and the P.2d right been- of counsel have assistance stature”, “equal to assist deemed to be of the accused should he later Westbrook, supra, must extreme caution such assistance. recogniz- before nevertheless exercised problem then in instant case con- one- ing to defend an assertion cerns able to whether the defendant was a waiver of the to counsel. self as make intelligent waiver adversary system lawyers Our which counsel. “necessities, not in criminal courts become record the court indicates that caution. See luxuries” demands give failed to sufficient consideration Wainwright,

Gideon v. U.S. 83 S.Ct. question. defend When asked 792, 9 L.Ed.2d 799. why ant permit he would him defend himself, judge replied among other *4 present In defendant case the things: be again demanded and time he time you’re enough.” “Because not smart allowed to conduct Such his own defense. 304 U.S. determinative of a waiver of assistance expressions alone, however, counsel. As stated in 458, 58 S.Ct. 1019, Johnson 82 L.Ed. should Zerbst, not 1461, be to case].” “No represent [*] judge himself in ever [*] permits * * * [*] a defendant [*] [a murder ‡ to petent to poses without by the defendant’s desire to counsel upon there is an accused —whose life or stances this “The represent himself, represented by short, protection constitutional to waive his accused.” Under to counsel. This the defendant must serious and intelligent conduct may require judge of a 1 counsel trial right he must also be com weighty liberty determining defend protecting defense the court to court, to counsel. West invokes, of an accused proper not is responsibility in which the for himself. at stake —is despite only duty whether circum appoint waiver itself, wish im to wise the self if he intelligently chooses would be dulge While it is against waiver, implies that 96 Ariz. trial without an complicated. self a disservice “ ** defendant’s [*] a constitutional 123, [*] every right it should refuse to consider I 392 P.2d will not allow You would be [*] that the illusory. reasonable see State v. attorney. right 784, everyone altogether. [*] court to defend one- you It is far too [*] presumption competently doing your- Anderson, should in- else.” to no Other- go way to Arizona, 150, brook v. The trial 384 court U.S. 86 S.Ct. 1320, present breath, hearings 16 separate L.Ed.2d 429. case ordered In the same two however, once it under Rule is 250 of our Criminal Rules of determined that a com petent Procedure, waiver has been made it 17 A.R.S. to determine whether is with province defendant was It to able to stand trial. has thrust firmly hearing been established that a defendant. Benton v. such States, United cautionary (9th 352 F.2d is also to be used to Circuit). 59 deal with the This, advisedly, requirement competency does not relating mean that under circumstances the trial would defendant’s waiver of counsel. State appoint be in error present Westbrook, 206, 101 Ariz. P.2d 530.2 Although pre- 1. per Johnson v. 2. Zerbst a This second Westbrook decision was opinion, interpretive Gideon of the curiam and was written as a result of contrary 6th Amendment which the United States sion, deci Court’s 150, 1320, views of Justice in his concur Harlan U.S. 86 S.Ct. 16 L. signifi 429, vacating rence in Gideon has been in this Ed.2d the first Westbrook part incorporated decision, cant 30, into 14th Ariz. 406 P.2d 388. along previous Amendment with its fed interpretations. eral son, See State v. Ander 123, 96 Ariz. 392 P.2d 784. decision, relating a factors to the determination of a of this As result Westbrook exactly grounds whether knew what having reasonable judge, court

trial doing he when he waived to be insane or a defendant believe hear- counsel are relevant. a “250 mentally shall order defective ing” to determine: present case, In the indicated as insane defendant “1. Whether [the] previously, given to the little attention was mentally the extent or defective However, stated above matters. we have to understand that he is unable court, appeal, that this affirm the will him, proceedings against judgment reaching court correct legal although

2. Whether insane conclusion [the] mentally reasons, Giles, unable wrong defective-so as to be Ariz. Nicholas v. defense, 130, 1967; 398, April in his 6, assist 426 P.2d filed Cole, P.2d Komarek v. requests to de- [If Estate, In re Sherrill’s de- fend Whether [the] himself] principle applies and the mentally de- fendant is insane or present is within the issue. un- he is to the extent that fective discretion to to allow refuse competent- intelligently able *5 defendant to continue his defense if own ly right to his constitutional waive seriously he acts in such a manner as to con- and the assistance of counsel refusing disrupt by proceedings the either own defense.” duct his necessary to to decorum exercise the applied deter The in test to be orderly by proceedings to the denying capable mining legally whether one respect court that due it. United the Cf. counsel, however, clearly waiving not Brands, Inc., States 250 F.2d v. Private legal United v. one of skills.3 See States (2nd Although 554 the trial court Circuit). Plattner, Circuit); (2nd F.2d 271 330 be for did state such to his reason D.C., Redfield, F.Supp. United 197 States v. refusing opportunity the defendant here an States, F.2d Burstein v. United defense, to conduct his own the record in Circuit). Rather, stated (9th as was, under the cir makes clear that this Plattner, supra, it be: must cumstances, appointing good for reason “* * * represent From counsel the to defendant. upon bearing inquiry [an] outset, displayed the defendant utter the capacity an in- the to make defendant’s disrespect complete and for court. His the words, there telligent choice. In other outbursts, repeated tenor verbal the of these must be a to establish record sufficient outbursts, the disregard his consistent satisfaction that the defendant to our judge’s warnings, and wild antics his doing and his choice is knows what he is general justifiable in make the eyes open.” made with decision to defendant’s refuse question is not one The fundamental then waive counsel. judgment but of the wisdom of defendant’s failure of his of counsel Defendant claims that the whether the defendant’s waiver his understanding and to honor intelligent, in was made added, constant, might it be vociferous answer to and The manner. in his requests stand question particu- to take the witness depend must this the behalf a denial of a constitutional surrounding own lar and circumstances facts error. case, and constituted reversible including background, each ex- the agree. All contention we perience, With this and conduct of the accused. oneself, except perhaps necessary to defend 3. Indeed if it for a defend- were lawyer, who, being satisfy even ease of an accused ant such a test before then, may permitted counsel, precious client. a fool for a little right have to waive would remain the constitutional by an inde- Arizona to have been waived reason Article Sec. pendent part criminal determination of the that, “In on the provides Constitution Rather, counsel. the matter shall have defendant’s prosecutions, the accused * * subject behalf should be con- testify in his own defendant’s * * adopted this that before mean sideration such waiver is does not This strategy. Clearly part when as a of the defense’s trial be waived. right cannot con- come to defendant his record case makes it would any reason that clusion attorney clear that the defendant testify, the defendant not to better attorney’s agreement were far from bene- later with cannot claim defendant keep determination off the defendant keep the decision hindsight fit of clearly stand. Where record shows reversible constituted the stand him off disagreement evidence there is no Ariz. Galbreath, See error. acquiesced, the defendant later we 842. 400 P.2d permit will failure consider where, as problem real comes to take the stand error. This reversible unretreatingly demands here, position, defendant however, subject to the limita testify given opportunity that he be objection tion that make his trial; his counsel direct contradiction but afterthought. known not as an put him wishes refuses to Narten, defendant’s See State court, sitting A on the stand. federal state, holding that a disagree We the defend with waive bound his counsel’s decision ant’s contention com sixty day requirement in Rule set out having mitted error in the defendant bound Procedure Arizona Rules of Criminal gagged stages throughout at various said, (defendant) “once he elects to *6 the trial. is incumbent the trial counsel,4 all represented by of the conduct public presiding preserve at a trial to phases the trial is the exclusive of under dignity by seeing the of the court attorney until control dominion and of said only order is maintained. a This is not formally he dis fully time as is and duty. right, Bogart, but a State v. Van D.C., Hitchcock, Application charged.” of supra. following quote The is a from our 857, F.Supp. 228, denied, 369 U.S. cert. 199 Bogart Van decision the trial where denied, 15, 944, 8 82 L.Ed.2d cert. S.Ct. gag decision to 924, Eyman, 84 S.Ct. Hitchcock 376 U.S. v. upheld: 684, holding L.Ed.2d 619. of 11 The case, although sound, given should not concede em- “While we that the meaure application. ployed by drastic, yet, was said it carte blanche As the court was duty in by only right Court is not a the United States the the of but Henry Mississippi, U.S. of 379 presiding v. State maintain order “ * * 564, 408, 443, in the court 13 decorum courtroom while the 85 S.Ct. L.Ed.2d adopted by The strategy without is in session. do so would failure to quickly bring disrepute will a court the prior consultation an accused into with excep it nor the are extent that could neither demand not, where circumstances asserting respect tional, public. the the The preclude the from command of accused employed opinion by main- methods the court to claims.” It is our constitutional dignity tain the present case order in courtroom that the circumstances testify “exceptional”. are commensurate with the necessities That the are clearly apparent each defendant revered, of case. The in one’s behalf is is own constitutionally contempt punishment in of court but fact it from the by subsequent misconduct fine or deemed guaranteed. This not be will distinguish rely fact the distinction to case. do on this We inadequate to be considered The final contention wholly imprisonment' was admissibility army medi- concerns cope situation.” with the relating a report to mood disorder suf- cal did about case, present In the following by a bout fered disruptive power to be everything in his hepatitis yellow subsequent with fever continuous proceedings. His depression fol- in 1942. The defendant’s left vilifications antics and verbal illness, report, lowing according to the judge with patient court and learned guilt”, “nihilism”, included “rest- “ideas of bound have him no other choice but to lessness”, condemnation” and de- and “self gagged. sought fense to introduce this evi- “psy- dence trial to show the onset remaining The two contentions which, paranoid insanity. accord- chotic tendencies” the defense of discussed relate to testimony, develop proof ing expert on can over first concerns burden However, relatively insanity long period con- and the second of time. issue by prose- upon objection judge, the nature of relevant evidence cerns cutor, insanity. regards establishing the fact of ruled that the evidence was too re- mote therefore inadmissible. that it The defendant contends part court to following quote error of the trial from our Griffin, jury that the burden recent refuse instruct decision State v. prove defend 43, the prosecution 397, directly point: was on P.2d sanity doubt. beyond a ant’s reasonable “To criminal resolve this vital issue of Schantz, v. State responsibility necessary issue, “insanity is an 521 we said that once jury picture of the de have entire beyond the burden is to establish of the state Insanity resulting fendant. in criminal doubt converse.” We reasonable growth acts is if the not a sudden even us position believe taken prohibited of a conduct to be sud seems Schantz, supported by a number which explosive Weihofen, nature. den Men Tobin, jurisdictions, People of other Defense, p. A tal As Criminal Disorder 359; United N.Y. Howard v. 68 N.E. (1954). The condition of de Cir.) ; States, (5th State v. F.2d 274 explained jury fendant must be Iverson, 77 P.2d Idaho have held understandable terms. We *7 People Munroe, 91, v. Ill.2d 154 N.E.2d always permissible, that it is when search State, 451, 209 A.2d 238 Md. v. Jenkins ing previous for real the cause show “to 616, rule, insanity applying sound. the act light troubles” it throws on if will be to be “an issue” once the deemed explains constituting the crime or evidence to introduces sufficient Talley reason for its commission. sanity a his under the raise doubt as to State, 309, (1916); 18 Ariz. P. McNaghten’s rule of case.5 When 293, State, Leonard v. P. Ariz. introduced, evidence is it then in becomes (1915).” state, cumbent commensurate with Therefore, may have a evidence which Brock, our decision in bearing questions of whether beyond prove to a quality or defendant understood the nature reasonable doubt that: act from and whether he knew 1. The defendant knew the nature and Brock, wrong, not supra, will be State v. quality áct, of his and jury’s consider- deemed too remote Consequently ation. 2. The evidence defendant knew that what he was past illness resulting and the doing wrong. was defendant’s State, introduced, prevail. If Foster v. 5. no such evidence is presumption 294 P. all men 268. that are sane will through You can talk properly been “THE effects have COURT: mental should your attorney, Mr. Martin. You will in evidence. admitted testify, given but there opportunity to Judgment reversed. * * legal are *. technicalities STRUCKMEYER, I know what McFarland, “THE DEFENDANT: J., V. C. think legal are and I don’t technicalities LOCKWOOD, JJ., concur UDALL you got them! You can’t count them! technicalities; UDALL, concurring) any : (specially got no You haven’t Justice technicalities! generally in the conclusions I concur however, I dis- majority; reached you this “THE Do want Court COURT: that majority’s agree with the statement you? gag judge give failed sufficient give “THE I don’t DEFENDANT: question whether consideration to the any- you going damn do. I’m to die what able an intel- the defendant was to make once, way. justice. I it I want won competent counsel. ligent and waiver of I hands want it now! down. portions re- By quoting the the record it “Read that blue book on crime and defend- lating statements that says you only days’ to have ‘60 there enough him- ant to defend smart preliminary do this! won it at the I im- self, among things, majority other ! hearing. go make You will them let me plies judge altogether that the trial refused * * * * * * request to defend defendant’s consider going “THE DEFENDANT: I’m win my opinion himself. that down, thing drag a knock with out court did not so act. campaign raising brawl and a hell or on the bench at the going else I’m there in that hole and arraign- also on the bench at defendant’s die. at ment. record indicates that “THE Mr. Martin! COURT: arraignment spoke defend- with “THE going DEFENDANT: I’m not length concerning ant at some the defend- back to hole to sticking die! I’m himself, defend the con- ant’s desire to thing right go- now! You are not requested of which clusion ing push me This the third around. public appointed defender defend been in that three month. I’ve hole Thus, request granted. him —the Any everybody American months. prior beginning clear days for a trial turn has 60 him loose required trial the was not consider it, you Mr know Wren! question of whether defendant was intelligent able to make an attorney “THE Your knows COURT: * counsel, * rendered waiver such was far more it. He has about looked unnecessary by defendant’s own * * “THE DEFENDANT: techni- *8 appointed. dirty nothing Smith’s calities. Mr. but rat, himself, permit thing go stages the earliest of on. that defendant’s conduct indicated he in- tended, way another, sabotage one you “THE Would take him COURT: mockery and make a proceedings. gag out and him? example: For DEFENDANT: I want to be .“THE go gagged. I’ll hole.” go! “THE DEFENDANT: Let’s I’m ready down, ready! I’m point ‘knock the proceedings At that drag out!’ You me in judge justified concluding have to convict that coun- days’ ‘60 loose, or turn me represent Mr. Wren! sel to awas neces- days!’ sity have to fact, You convict proceed. me ‘60 if the trial were to In displays outbursts the defendant’s

since complete disrespect utter and gag- handcuffing and court necessitated early dire ex- in the trial as voir ging as prospective jurors, amination impossible to conduct have been would represent- if had not been by counsel. ed Hence, that the majority’s statement give con- failed to sufficient implies sideration to defendant’s obligation was under something to do which instant case necessary. For, my opinion it is under the circumstances of facts above, as mentioned there was case absolutely no reason for the to even

seriously request. consider such to the other issues reference raised defendant, I case am in full opinion accord majority. with the 426 P.2d 647 MORGAN, Petitioner, D. Robert Judge, HAYS, Superior Jack D. H. Court of Arizona, the State of for the Coun- ty Superior Court, Maricopa, and said Respondents, Metro-Goldwyn-Mayer, Party Inc., Real in Interest.

No. 8653. Arizona, Court of In Banc. April 12, 1967. Rehearing 9,May Denied