Petition for Writ of Certiorari — Torrence E. Davis, Petitioner v. Arizona
Supreme Court briefOct 28, 2019
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No. 19-______
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In the
Supreme Court of the United States
_______________________
TORRENCE DAVIS,
Petitioner,
v.
STATE OF ARIZONA,
Respondent.
_______________________
ON PETITION FOR A WRIT OF CERTIORARI
TO THE ARIZONA COURT OF APPEALS
_______________________
APPENDIX TO
PETITION FOR A WRIT OF CERTIORARI
_______________________
Mikel Steinfeld
Counsel of Record
Jesse Turner
Maricopa County Public Defender’s Office
620 W. Jackson, Ste. 4015
Phoenix, AZ 85003
(602) 506-7711
Mikel.Steinfeld@Maricopa.gov
Counsel for Petitioner
============================================================
Appendix
1. State of Arizona v. Davis, Decision ...................................................................................... A-1
2. Opening Brief........................................................................................................................ A-6
3. Answering Brief .................................................................................................................. A-31
4. Reply Brief .......................................................................................................................... A-84
5. Petition for Review to Arizona Supreme Court .................................................................. A-99
6. Arizona Supreme Court Order Denying Review .............................................................. A-119
7. Reporter’s Transcript, 2/16/2017 ...................................................................................... A-120
8. Trial Court Minute Entry, 2/16/2017 ................................................................................ A-130
NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
TORRENCE E. DAVIS, Appellant.
No. 1 CA-CR 17-0529
FILED 1-22-2019
Appeal from the Superior Court in Maricopa County
Nos. CR2012-152527-001 DT
CR2016-135082-001 DT
The Honorable Christopher A. Coury, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
A-1
STATE v. DAVIS
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge Kenton D. Jones joined.
W I N T H R O P, Presiding Judge:
¶1
Torrence E. Davis appeals his conviction and sentence for
theft of means of transportation.1 He argues the trial court committed
reversible error by depriving him of his right to represent himself both (1)
at trial and (2) before sentencing. For the following reasons, we affirm his
conviction and sentence.
FACTS AND PROCEDURAL HISTORY2
¶2
Davis was stopped by law enforcement while driving a stolen
vehicle. He was convicted of theft of means of transportation and sentenced
to 11.25 years’ imprisonment.
¶3
He timely appealed his conviction and sentence. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
13-4033(A)(1), (3), and (4).
ANALYSIS
I.
The court did not deprive Davis of the right to represent himself at trial.
¶4
Before trial, Davis told the court he had discovery motions he
wanted his attorney to file. Davis told the court that if his attorney did not
Davis also appeals his probation revocation, for which he received a
consecutive, minimum sentence of 1.5 years’ imprisonment, but he raises
no issue in that regard. We note that, pursuant to his plea agreement, he
knowingly waived his right to appeal that conviction and sentence, and we
find no error in the subsequent revocation and sentencing proceedings.
1
We view the facts in the light most favorable to sustaining the
verdict. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013) (citation omitted).
2
2
A-2
STATE v. DAVIS
Decision of the Court
file those motions, he would be willing to represent himself. The court told
him the following:
Well, you can go pro per if you want to, but at this
point, your attorney is the one that decides strategy. Your
attorney is the one that decides what motions get filed and
what motions don’t get filed. He’s not going to file a motion
that he doesn’t think there’s a legal basis for.
Davis responded:
I do. So if that’s the case, I have to file, I have to go pro
per, then that’s what I want to do.
The court never directly addressed this statement. Davis argues the failure
to address the statement amounted to the deprivation of his right to
represent himself. We review the denial of a defendant’s motion to
represent himself for an abuse of discretion. See State v. Boggs, 218 Ariz. 325,
338, ¶ 62 (2008). Regardless of the standard of review, the erroneous denial
of a pretrial or mid-trial motion for self-representation is structural error
requiring reversal without a showing of prejudice. See State v. McLemore,
230 Ariz. 571, 575-76, ¶ 15 (App. 2012).
¶5
A defendant has a right to represent himself at trial. See
Faretta v. California, 422 U.S. 806, 818-19 (1975). To invoke this right, a
competent defendant must knowingly and voluntarily invoke his right to
self-representation. See State v. Weaver, 244 Ariz. 101, 104, ¶ 8 (App. 2018)
(citations omitted). A demand to represent oneself must also be
unequivocal. Id. (citing McLemore, 230 Ariz. at 576, ¶ 17).
¶6
Here, Davis’ demand to represent himself was not
unequivocal. He conditioned his demand on his attorney’s unwillingness
to file requested motions. Davis’ demands were preceded by conditional
phrases, “if [the attorney] doesn’t want to [file the requested motions], then
I’m willing to put in the motions to go pro per myself,” and “if [he does not
think there is a legal basis for the requested motions], I have to file, I have
to go pro per.” These conditional statements leave open the possibility that
Davis did not want to represent himself if his attorney fulfilled his requests.
By placing conditions upon his desire to represent himself, Davis did not
make an unequivocal demand.
¶7
Even if his demand was unequivocal, however, he
subsequently abandoned his motion for self-representation. A defendant
may abandon his Faretta motion. See McLemore, 230 Ariz. at 582, ¶ 36. When
3
A-3
STATE v. DAVIS
Decision of the Court
determining whether abandonment has occurred, we consider the totality
of the circumstances. Id. at 580, ¶ 29. We consider—among other factors—
“the defendant’s opportunities to remind the court of a pending motion
[and] defense counsel’s awareness of the motion.” Id. at 582, ¶ 35. In this
case, after his unanswered request, Davis attended eight pretrial
conferences with his attorney. He did not raise his allegedly pending
motion at any of these opportunities, suggesting he no longer desired to
represent himself. Further, as stated before, Davis’ Faretta motion was
conditional, depending upon whether his attorney fulfilled certain
requests. Davis argued the State had not disclosed discovery items it
possessed. At conclusion of the pretrial conference in which Davis made
his conditional demand to represent himself, the court ordered the State to
provide outstanding discovery. This, combined with Davis’ subsequent
failure to remind the court about or re-urge his motion, indicates his
requests had been fulfilled, and he had abandoned his Faretta motion. In
addition, his attorney was aware of his motion. The court, on two later
occasions, asked his attorney if there were any outstanding motions. On
both occasions, his attorney told the court—with Davis present in the
courtroom—that there were none. We find no abuse of discretion.
II.
The court did not reversibly err by not allowing Davis to represent
himself after his guilty verdict.
¶8
After Davis was convicted of theft of means of transportation,
he unequivocally requested to represent himself. The court began the
colloquy to ensure his request was knowing and voluntary. During the
colloquy, Davis told the court he was willing to receive the maximum
amount of time he could receive in prison. The court denied the motion for
self-representation. Davis argues this denial was reversible error. Again,
we review for an abuse of discretion. See Boggs, 218 Ariz. at 338, ¶ 62.
¶9
Although we view the erroneous denial of a pretrial or midtrial Faretta motion as structural error, the post-trial denial of a motion for
self-representation is subject to harmless-error review. Structural errors
“affect the entire conduct of the trial from beginning to end, and thus taint
the framework within which the trial proceeds.” State v. Henderson, 210
Ariz. 561, 565, ¶ 12 (2005) (citations and internal quotations omitted). In
contrast, a post-trial denial of a motion for self-representation does not
affect the framework of the trial. Our analysis is supported by decisions of
the Ninth Circuit. See United States v. Maness, 566 F.3d 894, 896-97 (9th Cir.
2009); see also United States v. Walters, 309 F.3d 589, 592-93 (9th Cir. 2002)
(reviewing an alleged sentencing error involving representation for
harmless error).
4
A-4
STATE v. DAVIS
Decision of the Court
¶10
Even assuming without deciding the court erred, Davis
cannot demonstrate prejudice. If he had represented himself, Davis would
have received the same sentence. At a pre-sentencing hearing, the State
presented evidence, and the court found beyond a reasonable doubt, that
Davis was convicted of a class 2 felony for an offense committed on March
29, 2004. The current offense was committed on July 24, 2016. For a class 2
felony to be a historical prior felony, it must have been committed within
ten years of the current offense. See A.R.S. § 13-105(22)(b). Because the
calculation period excludes Davis’ five-year period of incarceration, the
class 2 felony is a historical prior felony. See A.R.S. § 13-105(22)(b). Davis
also testified at trial that he committed another felony within five years of
the commission of the charged offense, thereby admitting another historical
prior felony. See A.R.S. § 13-105(22)(b)-(c). With two historical prior
felonies, Davis was required to be sentenced as a Category 3 offender for a
class 3 felony offense. See A.R.S. § 13-703(C). Further, the jury found Davis
was on probation at the time of the offense, meaning he had to be sentenced
to at least the presumptive term. See A.R.S. § 13-708(C). The jury also found
the State had not proven any of the other alleged aggravating factors,
meaning Davis could not have received a maximum or aggravated
sentence. See A.R.S. §§ 13-701(C), -703(K). Therefore, Davis—regardless of
representation—could only have been sentenced to 11.25 years’
imprisonment. See A.R.S. § 13-703(J)-(K). Accordingly, Davis cannot
demonstrate prejudice.
CONCLUSION
¶11
Davis’ conviction and sentence are affirmed.
5
A-5
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
No. 1 CA-CR 17-0529
Appellee,
Maricopa County Superior Court
No. CR2012-152527-001
No. CR2016-135082-001
v.
TORRENCE E. DAVIS,
Appellant.
APPELLANT’S OPENING BRIEF
MARICOPA COUNTY PUBLIC DEFENDER
Jesse Finn Turner
State Bar No. 024011
Deputy Public Defender
620 West Jackson, Suite 4015
Phoenix, Arizona 85003
Telephone (602) 506-7711
ACE@mail.maricopa.gov
Attorney for Appellant
A-6
TABLE OF CONTENTS
Page
ISSUES PRESENTED FOR REVIEW.................................................................. 1
STATEMENT OF FACTS ......................................................................................2
STATEMENT OF THE CASE ............................................................................... 3
A. Pretrial Motions and Filings............................................................... 3
B. The First Request To Go Pro Per ...................................................... 4
C. The Trial ...............................................................................................4
a. Jury Selection ............................................................................ 4
b. Edward Bickett .......................................................................... 5
c. James Valentinetti ..................................................................... 5
d. Mia Hill ......................................................................................5
e. Officer Cody Nicholas............................................................... 6
f. Detective Bret McLeod ............................................................. 6
g. Lawrence Keith ......................................................................... 7
h. Torrence Davis .......................................................................... 8
i. Recall of Detective McLeod....................................................10
j. Verdict and Aggravation Phase .............................................10
D. Sentencing .........................................................................................11
ISSUE 1 ...................................................................................................................14
It has long been the law under both the United States
and Arizona Constitutions that a defendant has the
absolute right to represent himself if he so chooses.
Faretta v. California, 422 U.S. 806 (1975), State v. Dann,
220 Ariz. 351 (2009). On February 16, 2017, Torrence
Davis made a request to represent himself. The Trial
Court never addressed his request. Did the Court err
in failing to address the request of Mr. Davis?
i
A-7
TABLE OF CONTENTS – Cont’d
Page
ISSUE 2 ...................................................................................................................16
The Trial Court denied the second request of
Mr. Davis to represent himself due to his “mental
state” and a fear of “knee-jerk reactions.” Did the
Trial Court err in applying this standard?
A. Mr. Davis Was Not Incompetent When His Request
Was Denied. .................................................................................16
B. There Was No Legitimate Basis For the Trial Court
to Deny the Right of Mr. Davis to Represent
Himself...........................................................................................17
CONCLUSION.......................................................................................................20
ii
A-8
TABLE OF CITATIONS
Page
CASES
United States Supreme Court Cases
Dusky v. United States, 362 U.S. 402 (1960) ........................................................... 1
Faretta v. California, 422 U.S. 806 (1975) ..........................................14, 15, 17, 18
Indiana v. Edwards, 554 U.S. 164 (2008) ..............................................................18
Sullivan v. Louisiana, 508 U.S. 275 (1993) ............................................................14
U.S. v. Gonzalez-Lopez, 548 U.S. 140 (2006) ........................................................14
Other Federal Cases
Odle v. Woodford, 238 F.3d 1084 (2001) ...............................................................19
Arizona Supreme Court Cases
State v. Dann, 220 Ariz. 351 (2009) .............................................................1, 14, 16
State v. Dierf, 191 Ariz. 583 (1998) ......................................................................... 1
State v. Gunches, 225 Ariz. 22 (2010) ..........................................................1, 16, 18
CONSTITUTIONAL PROVISIONS
Arizona State Constitution
Article 6, § 9 .................................................................................................13
RULES
Arizona Rules of Criminal Procedure
Rule 26.5 ........................................................................................................17
iii
A-9
TABLE OF CITATIONS – Cont’d
Page
STATUTES
Arizona Revised Statutes
§ 12-120.21(A)(1) .........................................................................................13
§ 13-4031 .......................................................................................................13
§ 13-4033(A) ................................................................................................13
iv
A-10
ISSUES PRESENTED FOR REVIEW
1. “The federal and state constitutions (of Arizona) guarantee [a defendant]
the right to waive counsel and to represent himself.” State v. Dann, 220 Ariz.
351, 359 (2009). On February 16, 2017, Torrence Davis made a request to
represent himself. The Trial Court never addressed his request. Did the
Court err in failing to address the request of Mr. Davis?
2. “[A] mentally incompetent defendant cannot validly waive the right to
counsel.” State v. Dierf, 191 Ariz. 583, 591 (1998). “A defendant is competent
to stand trial if he has ‘sufficient present ability to consult with his lawyer
with a reasonable as well as factual understanding of the proceedings against
him.’” State v. Gunches, 225 Ariz. 22, 24 (2010) (citing Dusky v. United States,
362 U.S. 402 (1960)). On July 17, 2017, Mr. Davis again requested the Trial
Court allow him to represent himself. The court refused, citing their belief
that Mr. Davis was not “in a mental state right now where you can effectively
represent yourself free from emotion and knee-jerk reactions.” (Reporter’s
Transcript “R.T.” 7/17/17 at 27.) Did the Court err in rejecting this request
from Mr. Davis?
1
A-11
STATEMENT OF FACTS
On July 20, 2016, Mia Hill discovered that her car keys, and later her 2012
white Hyundai Sonata were stolen. (R.T. 6/12/17 at 70-71.) She immediately
reported the car stolen. (Id. at 73.) On July 24, 2016, Glendale police got a report
from a private monitoring company that the car was located at 4545 West Hatcher
Street. (R.T. 6/13/17 at 15-16.) Officer Cody Nicholas located the car being driven
and followed it to 4545 West Hatcher, where it parked. (Id. at 18.) Torrence Davis
was removed as the driver of the vehicle and detained. (Id. at 23-24.) Ronald Wingo
was pulled from the passenger seat. (Id. at 38.) At the police station, Mr. Davis was
interrogated, where he admitted to both driving and cleaning the car. (Id. at
44.) When Mr. Davis was asked where he obtained the vehicle after being informed
it was stolen, he declined to answer and said he did not want to be a “snitch.” (Id. at
45.) He declined to answer any more questions. (Id.) Police also spoke to Mr. Wingo
and Jeanie Lopez, a woman removed from the home at 4545 West Hatcher. (Id.)
Miss Lopez said she had received a ride from Mr. Davis in the vehicle. (Id. at 54.)
Mr. Wingo resided at the location. (Id. at 49.)
2
A-12
STATEMENT OF THE CASE
A. Pretrial Motions and Filings
On August 2, 2016, Mr. Davis was indicted on one count of Theft of Means
of Transportation, a class 3 felony alleged to have been committed on July 24, 2016.
(Electronic Instrument of Record “I” 9.)
Subsequent to the indictment, the State filed an Allegation of Historical Priors
(I 22), an Allegation of Prior Felony Conviction Pursuant to A.R.S. § 13-703 and
13-704 (I 23), Allegation of Offenses Committed While Released From
Confinement Pursuant to A.R.S. § 13-708(C) (I 24), a Request for a 609 Hearing
(I 25), a Notice of Disclosure and Request for Disclosure (I 26), Allegation of
Aggravating Circumstances (I 27), and a Supplemental Notice of Disclosure (I 36).
The Defense filed a Notice of Defenses and Disclosure Under Rule 15.2 of
the Arizona Rules of Criminal Procedure (I 15), an Invocation of Fifth and Sixth
Amendment Rights (I 16), a Motion for Discovery (I 17), a Motion to Modify
Conditions of Release (I 29), and four Motions to Continue (I 43, 46, 50, 54). The
motion to modify was denied (I 34). The motions to continue were all granted. (I 44,
47, 55, 61).
3
A-13
B. The First Request To Go Pro Per
A Final Trial Management Conference was held on February 16, 2017. (I 48).
The ultimate result of the conference was a continuance of the trial so that the State
could resolve a discovery matter. (Id.) During the hearing, Mr. Davis informed the
Court that he was not ready to go to trial because of missing discovery and motions
that he had wanted filed. (R.T. 2/16/17 at 4-5.) The Court informed Mr. Davis he
could not file motions, only his attorney could. (Id. at 5.) Mr. Davis responded,
“Well, if he doesn’t want to, then I’m willing to put in the motions to go pro per
myself…” (Id.) When the Court informed Mr. Davis he had the right to go pro per
but until then his attorney was in charge of filing motions, Mr. Davis responded, “So
if that’s the case, I have to file, I have to go pro per, then that’s what I want to do.”
(Id. at 5-6.) Mr. Davis’s lawyer then interjected, a discussion about discovery
ensued, and the Court never addressed the request from Mr. Davis to represent
himself. (Id. at 6-9.) The request was not enshrined in the minute entry. (I 48.)
C. The Trial
Trial commenced on June 8, 2016. (I 70.)
a. Jury Selection
Neither side had any objections for hardship discharge. (R.T. 6/8/17 at 30, 64,
69-74.) There were equally no objections to any strikes for cause. (Id. at 111-112.)
4
A-14
b. Edward Bickett
The State’s first witness was Edward Bickett. (R.T. 6/12/17 at 42.) Mr. Bickett
was the registered owner who purchased the Sonata in question. (Id. at 43.) He
provided it to his daughter, Mia Hills. (Id.) He had never met Mr. Davis. (I 48.)
c. James Valentinetti
The State next called James Valentinetti. (Id. at 55.) He was a resident near
4545 Hatcher on July 24, 2016. (Id.) He did not know Mr. Davis. (Id. at 56.) He did
see the white Sonata on July 24, 2016 and made a note that he had never seen it
before. (Id.) He witnessed a woman taking things out of the vehicle while a man was
cleaning. (Id. at 57.) He knew the woman, but did not know the man. (Id. at 58.) He
was sure the man was not Mr. Wingo. (Id.) He also witnessed the arrest. (Id. at 60.)
He was not sure about the man, and would not be able to identify him if he saw him
again. (Id. at 63.)
d. Mia Hill
The State next called Miss Hill. (Id. at 69.) Miss Hill testified that her car keys
were stolen from her purse during a pool party on July 20, 2016. (Id. at 71.) At 4:30
the next morning she discovered her car was missing. (Id.) She had also never met
Mr. Davis. (Id. at 73.)
5
A-15
e. Officer Cody Nicholas
The State next called Glendale Police Officer Cody Nicholas. (R.T. 6/13/17
at 13.) He testified that at 1:20 p.m. on July 24, 2016 he was informed that an outside
private company tracking the vehicle through GPS had alerted the police that
Miss Hill’s vehicle was at 4545 West Hatcher. (Id. at 15-16.) Officer Nicholas
spotted the vehicle driving on 45th Avenue, at which point it drove to 4545 West
Hatcher and parked. (Id. at 17-18.) Officer Nicholas stopped the car and ordered the
driver out, where he was detained by another officer. (Id. at 23.) Officer Nicholas
identified the driver as Mr. Davis. (Id. at 24.) Officer Nicholas did not note any
obvious signs of someone having broken into the vehicle. (Id. at 32.)
f. Detective Bret McLeod
The State next called Glendale Police Detective Bret McLeod. (Id. at 39.)
Detective McLeod testified that during his interrogation of Mr. Davis, Mr. Davis
admitted to driving the Sonata. (Id. at 44.) He also admitted to cleaning the vehicle
in a manner consistent with what Mr. Valentinetti described. (Id.) Detective McLeod
said he informed Mr. Davis that the vehicle was stolen and asked where he got it, to
which Mr. Davis responded that he did not want to be a “snitch.” (Id. at 45.)
Mr. Davis said he did not wish to talk any more after that. (Id.) Detective McLeod
confirmed that Mr. Wingo lived at 4545 West Hatcher, and the woman seen taking
6
A-16
things from the vehicle was Jeanine Lopez, who occasionally resided at that address.
(Id. at 49.) He also interviewed Miss Lopez, who said she had received a ride from
Mr. Davis in the vehicle. (Id. at 54.)
At the conclusion of Detective McLeod’s testimony, the State rested. (Id. at
58.) Defense Counsel made a request for a directed verdict under Rule 20 of the rules
of criminal procedure which was denied. (Id. at 60-61.)
g. Lawrence Keith
In his defense Mr. Davis called Lawrence Keith. (Id. at 63.) Mr. Keith testified
that he had been friends with Mr. Davis since 2012. (Id. at 64.) Mr. Keith stated that
sometime in late July 2016 he was hanging out with Mr. Davis in the parking lot of
the Coconut Grove apartment complex near 17th Avenue and Indian School Road.
(Id.) Mr. Keith said that a woman was talking to Mr. Davis and asked him to take
care of her car while she was going to work. (Id. at 65.) He specifically remembered
the woman giving Mr. Davis the keys. (Id.) Mr. Keith remembered that the car was
a white 4 door that looked new. (Id. at 66.) While he did not know who the woman
was, he said it looked like the two knew each other. (Id.) He did not hear the specifics
of the conversation. (Id.) Pursuant to Rule of Evidence 609, Mr. Keith admitted to
having two prior felony convictions. (Id. at 73.)
7
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h. Torrence Davis
Mr. Davis then took the stand in his own defense. (Id. at 81.) On direct
examination Mr. Davis testified that he had driven the white Sonata for the first time
on the evening of July 23, 2016. (Id. at 82.) Mr. Davis stated he had received the car
from Miss Lopez while at the Coconut Grove apartments on the night of the 23rd.
(Id. at 83.) He said that he had known her three or four months at that time. (Id. at
84.) Mr. Davis said that Miss Lopez gave him the keys and they left together. (Id.)
He testified he drove her to work. (Id.) The location was a club at 19th Avenue and
Campbell. (Id. at 85.) He then returned to the apartments and waited for her shift to
end. (Id.) He had not seen her with the vehicle prior to that night. (Id. at 86.) He
picked up Miss Lopez when her shift was over. (Id.) The next day Mr. Davis said he
saw Miss Lopez in the parking lot again of the Coconut Grove and she asked him to
help her move some things out of her boyfriend’s apartment. (Id. at 88.) They both
loaded some items in the car, then she drove to 4545 West Hatcher. (Id. at 88-89.)
When they arrived Miss Lopez told Mr. Davis he could take a shower, which he did
and saw inside was Mr. Wingo. (Id. at 91.) Mr. Davis had never met Mr. Wingo. (Id.
at 92.) He then cleaned the car, at Miss Lopez’s request. (Id. at 93.) Sometime
thereafter Miss Lopez asked Mr. Davis to take Mr. Wingo to the store, and Mr. Davis
departed with Mr. Wingo when Mr. Wingo repeated the request. (Id. at 95.) Shortly
8
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afterward he saw the police, returned to the home, and was detained. (Id. at 97.)
Regarding his interview with police, he stated that he told Detective McLeod he did
not want to be a snitch because he did not want to say who gave him the keys to the
car when he did not know anything was wrong with it. (Id. at 102.) He said the earlier
testimony regarding Miss Lopez’s statements were incorrect. (Id. at 103.) Pursuant
to Rule 609 of the Rules of Evidence, Mr. Davis admitted he had a prior felony
conviction. (Id. at 106.)
On cross-examination, Mr. Davis testified when he asked Miss Lopez why
she wanted him to drive her to work, she replied that there were a lot of break-ins
near her employment and she didn’t feel safe parking there. (Id. at 110-111.) He said
he and Miss Lopez had previously had a sexual relationship. (Id. at 113.) He said he
had previously seen her with a “rinky dink” “crappy” car, and that was the first night
he saw her with the Sonata. (Id. at 114.) Mr. Davis said he did not ask about the new
car nor did it occur to him to do so. (Id.) He also stated he was cleaning the car
because it had become dirty from all the items that Miss Lopez was transporting. (Id.
at 119.) He admitted he never discussed Miss Lopez with Detective McLeod. (Id. at
126-127.)
On redirect, Mr. Davis stated he had a suspended license at the time, which
influenced his decision to immediately return to the home and expect to be pulled
9
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over. (Id. at 128.) He also said that he didn’t say anything about Miss Lopez to the
police because he was not obligated to do so. (Id.)
i. Recall of Detective McLeod
After Mr. Davis rested, the State recalled Detective McLeod in rebuttal. (R.T.
6/14/17 at 12.) Detective McLeod stated that none of what Mr. Davis had testified
about regarding Miss Lopez was information conveyed to him on July 24, 2016. (Id.
at 12-13.) Detective McLeod testified after interviewing Miss Lopez, he determined
she was a passenger in the vehicle. (Id. at 17.)
j. Verdict and Aggravation Phase
Mr. Davis was convicted of Theft of Means of Transportation. (R.T. 6/15/17
at 5.) Prior to initiation of the Aggravation Phase, Mr. Davis requested to waive his
presence and was removed from the courtroom. (Id. at 8.) The State called Sinisa
Malisanovic of the Maricopa County Adult Probation Department. (Id. at 24.) He
confirmed Mr. Davis was on probation, under his supervision, as of March 6, 2016
in CR2012-152527-001. (Id. at 27.) He was still on probation as of July 24, 2016.
(Id. at 28.)
The jury returned a verdict that the aggravating factors of damage to property,
pecuniary gain, and harm to the victim were not proven. (Id. at 46.) It found the
factor of probation was proven. (Id.)
10
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D. Sentencing
The trial on priors and sentencing commenced on July 17, 2017. (R.T. 7/1717
at 3.) Mr. Davis said he had filed a written motion to represent himself, which the
Court had not received. (Id. at 5.) Mr. Davis stated his reasons for wanting to
represent himself were to file “An extension to file a motion for a new trial, a motion
to vacate judgment/guilt; and there are some more, but I wanted an extension if I can
file it myself.” (Id. at 7.) The Court informed Mr. Davis that the deadline for a motion
to file for a new trial had passed, and he would not be granted an extension to file
one if allowed to represent himself. (Id. at 8.) Mr. Davis said he understood that, but
he still wanted to represent himself so he could file a motion to vacate judgment. (Id.
at 9.) Mr. Davis was also complaining that his lawyer lied to him that he could not
have a bench trial, to which the Court told Mr. Davis that would not be considered,
he did not have the right to a bench trial without the State, and there would be little
reason for him to represent himself at that point in the sentencing. (Id. at 11-12.)
Mr. Davis stated he still wanted to represent himself and he requested the Court
engage him in the prerequisite colloquy. (Id. at 13, 16.) During the colloquy,
Mr. Davis said he had been diagnosed as having a serious mental illness for which
he was not prescribed medication. (Id. at 17.) Mr. Davis said he wasn’t sure if it was
bipolar or schizophrenia. (Id. at 18.) Mr. Davis answered the majority of the Court’s
11
A-21
questions with a simple yes or no. (Id. at 19-25.) Mr. Davis did complain that trust
was broken with his attorney and he was not trying to be angry. (Id. at 25.) The court
ended the colloquy by discussing the likely sentencing with Mr. Davis. (Id. at 26-27.)
The colloquy concluded with:
The Defendant: “Well it’s all about the same amount of
time. You can go ahead and give me the 3 and a half years
on top of the 11 and a half years and just postpone it so I
can see my family at court. I mean this on top, what is the
difference? That is still 14 years, a year later, 12 years and
2 years, what is the difference? It doesn’t matter. You can
go ahead and give me the 2 and half years and go ahead
and max it out. That way you postpone it. I can see my
family. I was supposed to go to court on the 18th. That is
what they said, the 18th. I’m supposed to go into jail on the
18th. My family isn’t here so you can go ahead and do what
you want to do. Max it out, you know what I mean; and it
is what it is.”
The Court: “The Court finds that the Defendant is –
Mr. Davis, I’m not letting you represent yourself. You are
not making wise decisions. Based on your prior mental
health diagnosis that you are bipolar, I do not believe that
you are in a mental state right now where you can
effectively represent yourself free of from emotion and
knee-jerk reactions. Quite frankly, sir, I have never had
anyone who wants to be maxed out due to an emotional
response.”
(Id. at 27-28.)
At that point Mr. Malisanovic re-took the stand. (Id. at 29.) Mr. Malisanovic
testified that Mr. Davis had been convicted of three prior felony convictions. (Id. at
12
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34-38.) After the priors were found, Mr. Davis requested and was granted an
extension. (Id. at 54-58.)
On August 18, 2017, Mr. Davis was sentenced to 1.5 years with 401 days
credit in CR2012-152527-001, with community supervision waived, and
consecutive to 11.25 years in CR2016-135082-001. (I 104.)
Appellant filed a timely notice of appeal. This Court has jurisdiction under
article 6, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031
and 13-4033(A).
13
A-23
ISSUE 1
It has long been the law under both the United States
and Arizona Constitutions that a defendant has the
absolute right to represent himself if he so chooses.
Faretta v. California, 422 U.S. 806 (1975); State v. Dann,
220 Ariz. 351 (2009). On February 16, 2017, Torrence
Davis made a request to represent himself. The Trial
Court never addressed his request. Did the Court err
in failing to address the request of Mr. Davis?
Standard of Review
“We have little trouble concluding that erroneous deprivation of the right to
counsel of choice, ‘with consequences that are necessarily unquantifiable and
indeterminate, unquestionably qualifies as ‘structural error.’’” U.S. v. GonzalezLopez, 548 U.S. 140, 150 (2006) (citing Sullivan v. Louisiana, 508 U.S. 275, 282
(1993).
Argument
There is no way to distinguish this case from Faretta. In Faretta, the
defendant “clearly and unequivocally declared to the trial judge that he wanted to
represent himself and that he did not want counsel.” Id. at 835. Here, Mr. Davis
clearly and unequivocally stated “I have to go pro per, then that’s what I want to do.”
(R.T. 2/16/17 at 5-6.) No reason was given by the Court why this right was not
respected, why no colloquy was engaged in, nor why the request was not even
14
A-24
preserved in the minute entry. (I 48.) Faretta held that forcing a defendant to accept
an attorney against his will deprives him of the constitutional right to conduct his
own defense. Id. at 836. Such is the case here, where the Court conducted no follow
up or colloquy with Mr. Davis concerning his request. Having been deprived of the
right of the attorney of his choice, reversal and remand is therefore warranted.
15
A-25
ISSUE 2
The Trial Court denied the second request of
Mr. Davis to represent himself due to his “mental
state” and a fear of “knee-jerk reactions.” Did the
Trial Court err in applying this standard?
Standard of Review
“We review a trial court’s determination that a defendant had knowingly,
intelligently, and voluntarily waived counsel for an abuse of discretion.” Gunches at
24 (citing Dann at 360).
Argument
A. Mr. Davis Was Not Incompetent When His Request Was Denied.
“[A] mentally incompetent defendant cannot validly waive the right to
counsel. State v. Dierf, 191 Ariz. 583, 591 (1998). Under the Due Process Clause of
the Fourteenth Amendment, the competency standard for waiving the right to
counsel is the same as the competency standard for standing trial. See Godinez v.
Moran, 509 U.S. 389, 399 (1993). A defendant is competent to stand trial if he has
‘sufficient present ability to consult with his lawyer with a reasonable degree of
rational understanding’ and a ‘rational as well as factual understanding of the
proceedings against him.’ Dusky v. United States, 362 U.S. 402 (1960).” Gunches at
24.
16
A-26
Based on this analysis, for the Trial Court to properly deny the right of
Mr. Davis to represent himself by using his diagnoses of a mental illness, they had
to find him incompetent. Aside from the fact that the Court made no specific finding
as to competency, the record does not support such a finding. Mr. Davis quoted
proper rules of criminal procedure, accurately cited to not only multiple motions, but
even acknowledged the deficiency in his motion for a new trial by recognizing the
deadline had passed, and repeatedly acknowledged the Court’s assessment of what
remained of his case. He constantly spoke of the broken trust with his attorney and
motions he wished to file, not an insufficient ability to consult with his lawyer. His
affirmative answers to the majority of the colloquy did not demonstrate a lack of
factual or rational understanding of the proceedings. The record is clear that
Mr. Davis was “voluntarily exercising his free will.” Faretta at 835. Finally, it
should be noted that if the Court felt that Mr. Davis was in fact incompetent on
July 17, 2017 it had a duty to have him evaluated for competency under Arizona
Rule of Criminal Procedure 26.5.
B. There Was No Legitimate Basis For the Trial Court to Deny the Right
of Mr. Davis to Represent Himself.
“[T]he constitution permits [s]tates to insist upon representation by counsel
for those competent enough to stand trial under Dusky but who still suffer from
17
A-27
severe mental illness to the point where they are not competent to conduct trial
proceedings by themselves.” Indiana v. Edwards, 554 U.S. 164, 178 (2008).
“Edwards recognized that some ‘gray-area’ defendants may be competent to stand
trial but ‘unable to carry out the basic tasks needed to present their own defense(s)
without help of counsel.” Gunches at 25.
In Gunches, the court found the defendant was not in this “gray-area” when
he was engaged in a colloquy, assisted by advisory counsel, and even though he pled
guilty, admitted an aggravator, and introduced no mitigation evidence. Id. Here, by
the Court’s own admission there was very little remaining and very little leeway it
had in terms of what remained in the case. (R.T. 7/17/17 at 26-27.) Mr. Davis showed
no deficiencies that would have identified himself as someone “unable to carry about
the basic tasks needed to present his defense.” Instead, he correctly cited motions he
wished to file, acknowledged the deficiencies of his motion for new trial when
informed by the Court, and acknowledged the limited ability of the Court to affect
his sentencing at that juncture.
Finally, it should be noted that the Court’s actual analysis does not fall within
the two circumstances described in Gunches and Edwards. The Court’s ruling was
based on Mr. Davis not being in a “mental state free from emotion and knee jerk
reactions.” Nowhere in the analysis of Faretta, Gunches, or Edwards can such a
18
A-28
standard
be
implied.
Emotion
alone
is
insufficient
to
determine
competency. Behaving calmly in a courtroom has been found to be insufficient for
determining that one is competent. Odle v. Woodford, 238 F.3d 1084, 1088
(2001). The same could apply to an expression of emotion while nonetheless
satisfying the requirements of competency and self-representation, as happened
here. The Court’s ruling was therefore in error.
19
A-29
CONCLUSION
The Trial Court caused structural error by interfering with the constitutional
right of Mr. Davis to represent himself both before and after trial. Reversal and
remand is therefore required.
Respectfully submitted,
MARICOPA COUNTY PUBLIC DEFENDER
By
/s/
Jesse Finn Turner
Deputy Public Defender
Attorney for Appellant
SFJFT062918P
20
A-30
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA,
1 CA–CR 17–0529
Appellee,
v.
TORRENCE E. DAVIS,
Maricopa County Superior Court
No. CR2016–135082–001
Appellant.
APPELLEE’S ANSWERING BRIEF
Mark Brnovich
Attorney General
(Firm State Bar No. 14000)
Joseph T. Maziarz
Chief Counsel
Gracynthia Claw
Assistant Attorney General
Criminal Appeals Section
2005 N. Central Ave.
Phoenix, Arizona 85004–1508
Telephone: (602) 542–4686
cadocket@azag.gov
(State Bar Number 030265)
Attorneys for Appellee
A-31
QUESTIONS PRESENTED FOR REVIEW
1.
Did the trial court abuse its direction in not ruling on a motion for selfrepresentation when the only statement Appellant Torrence Davis made that
could be construed as such a motion was equivocal and made for the sole
purpose of filing a fruitless discovery motion? Assuming Davis unequivocally
demanded self-representation, did the trial court’s inaction amount to structural
error when a totality of the circumstances demonstrates that Davis abandoned
any such request?
2.
Did the trial court abuse its discretion in denying Davis’s post-trial
motion for self-representation when the request was untimely and Davis did
not “intelligently and knowingly” waive his right to counsel?
i
A-32
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ...................................................... i
TABLE OF CONTENTS .................................................................................... ii
TABLE OF AUTHORITIES ............................................................................. iii
STATEMENT OF THE CASE ........................................................................... 1
ARGUMENTS
I
THE TRIAL COURT DID NOT COMMIT STRUCTURAL
ERROR IN NOT RULING ON A MOTION FOR SELFREPRESENTATION
BECAUSE DAVIS DID NOT
UNEQUIVOCALLY MAKE SUCH A MOTION; AND, TO THE
EXTENT THAT HE DID, HE ABANDONED IT. .................................. 4
II
THE TRIAL COURT PROPERLY DENIED DAVIS’S POSTTRIAL REQUEST FOR SELF-REPRESENTATION BECAUSE
(1) THE REQUEST WAS UNTIMELY, AND (2) DAVIS DID
NOT INTELLIGENTLY AND KNOWINGLY WAIVE THE
RIGHT TO COUNSEL. ......................................................................... 18
CONCLUSION ................................................................................................. 47
ii
A-33
TABLE OF AUTHORITIES
Cases
Page
Adams v. Carroll, 875 F.2d 1441 (9th Cir. 1989) ...................................... 19, 20
Brewer v. Williams, 430 U.S. 387 (1977)..........................................................19
Brown v. Wainwright, 665 F.2d 607 (5th Cir. 1982) .........................................16
Edwards v. Arizona, 451 U.S. 477 (1981) ............................................ 19, 34, 38
Faretta v. California, 422 U.S. 806 (1975) ........................................... 10, 19, 32
Godinez v. Moran, 509 U.S. 389 (1993)......................................... 31, 32, 35, 36
Hodge v. Henderson, 761 F. Supp. 993 (S.D.N.Y. 1990) ..................... 16, 32, 35
Indiana v. Edwards, 554 U.S. 164 (2008) ..........................................................39
Iowa v. Tovar, 541 U.S. 77 (2004) .....................................................................32
Jackson v. Ylst, 921 F.2d 882 (9th Cir. 1990) ..............................................11, 29
Johnson v. Zerbst, 304 U.S. 458 (1938) ............................................... 19, 20, 32
Martinez v. Ct. of Appeal of Calif., Fourth Appellate Dist., 528 U.S. 152 (2000)
............................................................................................................................30
McKaskle v. Wiggins, 465 U.S. 168 (1984) ......................................................40
Meeks v. Craven, 482 F.2d 465 (9th Cir. 1973)................................................. 11
Neder v. United States, 527 U.S. 1 (1999).........................................................42
Odle v. Woodford, 238 F.3d 1084 (9th Cir. 2001) .............................................39
People v. Kenner, 272 Cal. Rptr. 551 (Cal. Dist. Ct. App. 1990) ......................17
People v. Wardlaw, 849 N.E.2d 258 (N.Y. Ct. App. 2006) ................................45
Ramirez v. Yates, 71 F. Supp. 3d 1100 (N.D. Cal. 2014) ..................................29
Ring v. Arizona, 536 U.S. 584 (2002) ...............................................................41
State v. Anderson, 197 Ariz. 314 (2000) ............................................................43
State v. Boggs, 218 Ariz. 325 (2008) .......................................................... 29, 30
iii
A-34
State v. Bush, 244 Ariz. 575 (2018) ...................................................................42
State v. Cornell, 179 Ariz. 314 (1994) .................................................. 29, 37, 38
State v. Dann, 220 Ariz. 351 (2009) ..................................................... 19, 31, 32
State v. De Nistor, 143 Ariz. 407, 413 (1985) ...................................................31
State v. Doss, 116 Ariz. 156 (1977) ...................................................... 20, 32, 36
State v. Glassel, 211 Ariz. 33 (2005) .................................................................38
State v. Gunches, 225 Ariz. 22 (2010) ...............................................................39
State v. Hanson, 138 Ariz. 296 (App. 1983) ......................................................10
State v. Harrison, 195 Ariz. 1 (1999) .................................................................45
State v. Hegyi, 242 Ariz. 415 (2017) .................................................................37
State v. Henry, 189 Ariz. 542 (1997) ...........................................................11, 31
State v. Johnson, 147 Ariz. 395 (1985) ....................................................... 37, 38
State v. Lamar, 205 Ariz. 431 (2003) .................................................... 10, 13, 30
State v. Mann, 188 Ariz. 220 (1997) ..................................................................44
State v. McLemore, 230 Ariz. 571 (App. 2012) ........................................ passim
State v. Montano, 206 Ariz. 296 (2003).............................................................45
State v. Moody, 208 Ariz. 424 (2004) ................................................................39
State v. Ring, 204 Ariz. 534 (2003) ........................................................ 5, 40, 41
State v. Salazar, 128 Ariz. 461 (1981) ...............................................................37
State v. Weaver, 244 Ariz. 101 (App. 2018) ................................... 20, 29, 36, 41
State v. Willits, 96 Ariz. 184 (1964) ....................................................................8
Stowe v. State, 590 P.2d 679 (Okla. Crim. App. 1979) .....................................35
Sullivan v. Louisiana, 508 U.S. 275 (1993).......................................................39
United States v. Barnes, 693 F.3d 261 (2d Cir. 2012) .......................................16
United States v. Maness, 566 F.2d 894 (9th Cir. 2009) .....................................40
United States v. Spangle, 626 F.3d 488 (9th Cir. 2010).....................................40
iv
A-35
United States v. Vampire Nation, 451 F.3d 189 (3d Cir. 2006) .........................35
United States v. Walters, 309 F.3d 589 (9th Cir. 2002) .....................................40
Constitutional Provisions
Ariz. Const. art. VI, § 9........................................................................................4
Rules
Ariz. R. Crim. P. 6.1(c) ......................................................................................32
Ariz. R. Crim. P. 11.1(b)....................................................................................39
Statutes
A.R.S. § 12–120.21(A)(1) ...................................................................................4
A.R.S. § 13–703(C) ...........................................................................................43
A.R.S. §§ 13–701(C) .........................................................................................44
A.R.S. § 13–4031.................................................................................................4
A.R.S. § 13–4033(A) ...........................................................................................4
v
A-36
STATEMENT OF THE CASE
The State indicted Appellant Torrence Davis in Maricopa County
Superior Court on August 2, 2016, for one count of theft of means of
transportation, in violation of Arizona Revised Statute (“A.R.S.”) § 13–1814.
(S.R.O.A. 9.) The State further alleged: (1) four historical prior convictions
committed in 2001, 2004, and 2012; (2) 12 aggravating factors; and (3) a
violation of felony probation. (S.R.O.A. 22–23, 27, 77.)
The trial evidence—viewed in the light most favorable to sustaining
Davis’s conviction, State v. Chappell, 225 Ariz. 229, 233, ¶ 2 n.1 (2010)—
established that, on July 24, 2016, Davis was arrested while driving a stolen
vehicle.
(R.T. 6/13/17, at 21, 23–25.)
Davis drove the vehicle without
permission from the vehicle’s registered owner or lawful possessor. (R.T.
6/12/17, at 43, 45, 70, 73–74.)
Davis testified at trial coherently and generally without incident, but the
topic of whether he had knowledge of the stolen vehicle frustrated him. (See
R.T. 6/13/17, at 82–129, 132–33.) Davis testified that he did not know the
vehicle was stolen when he drove it. (Id. at 102–03.) On cross-examination,
when asked again about his knowledge and why he did not tell the
interrogating officer where he got the vehicle, Davis denied having knowledge
of the stolen vehicle, and then veered off-topic to exclaim:
1
A-37
[Y]ou got her [referring to the person who gave Davis the
keys to the stolen car] sitting in a house hiding … and you still
release her, but you book me on it? You had a right to get the real
perpetrator; you chose not to. You had tunnel vision on me. … I
don’t understand why I’m sitting here still.
(Id. at 125–26 (intermediate question omitted).)
In his testimony, Davis also admitted to having two felony convictions
that he committed in Maricopa County in 2012, and for which he had legal
representation. (Id. at 106–08.) The admitted-to convictions were two of the
four historical prior felony convictions that the State had alleged. (S.R.O.A.
22.)
The jury found Davis guilty as charged. (S.R.O.A. 81, at 2.) As the
court explained the aggravation phase to the jury, Davis interrupted and asked
to be removed from the courtroom. (R.T. 6/15/17, at 8.) The court granted the
request. (Id.) After leaving, Davis made “loud banging [noises] of some sort
on the walls,” and did so again four or five minutes later, all of which was
heard from inside the courtroom. (Id. at 20.) The trial court later noted outside
the jury’s presence:
In the event that this case continues to next week [sic], I
will have [Davis] transported back in the event that he’s cooled
down. He was emotional and he also requested the Court, which
was visible, I’m sure, on the FTR, but also on the record. He told
you and he also told me that he didn’t want to stay around any
more [sic].
(Id.)
Subsequently, the jury found no aggravating factors, but found the
2
A-38
sentence enhancement that Davis committed theft-of-means while on probation
for a 2012 felony conviction. (S.R.O.A. 77, 81.)
At sentencing, the State presented additional evidence (the testimony of
Davis’s probation officer and Davis’s “pen pack”) that showed that Davis had a
total of four felony convictions: (1) a class-four misconduct involving weapons
committed in 2012; (2) a class-three aggravated assault committed in 2012; (3)
a class-two armed robbery committed in 2004; and (4) a class-six aggravated
assault committed in 2001. (R.T. 7/17/17, at 29–39.) The 2012 convictions
constituted a single historical prior because they resulted from the same
incident. (Id. at 44.) Based on the State’s additional evidence, and on Davis’s
trial testimony admitting to the 2012 convictions, the trial court found that the
2012 convictions and armed-robbery conviction amounted to a total of two
historical priors and consequently classified Davis as a category-three
repetitive offender. (Id. at 44–45, 47–48; S.R.O.A. 87, at 3.) No mitigation
evidence was presented.
(See R.T. 8/8/17, at 4–15.)
Davis received the
presumptive sentence of 11.25 years of imprisonment.1 (S.R.O.A. 104, at 2.)
_______________
1
The court also sentenced Davis for violating his 2012 felony probation. (R.T.
8/8/17, at 15.) Davis’s attorney argued that a mitigated sentence was
appropriate due to the non-violent nature of the theft-of-means conviction, but
he did not mention mental health. (Id. at 12.) The court nonetheless found that
Davis’s “mental health” was a mitigator and, having found no aggravators,
(continued ...)
3
A-39
Davis filed a timely notice of appeal from the judgment and sentence.
(R.T. 8/18/17, at 12–13; S.R.O.A 86.)
Arizona
Constitution
Article VI,
This Court has jurisdiction under
Section 9,
and
A.R.S.
§§
12–
120.21(A)(1), 13–4031, and 13–4033(A).
ARGUMENTS
I
THE TRIAL COURT DID NOT COMMIT STRUCTURAL
ERROR IN NOT RULING ON A MOTION FOR SELFREPRESENTATION BECAUSE
DAVIS
DID
NOT
UNEQUIVOCALLY MAKE SUCH A MOTION; AND, TO
THE EXTENT THAT HE DID, HE ABANDONED IT.
Davis claims that the trial court committed structural error by not acting
on a request for self-representation. (O.B., at 14–15.) That claim fails for two
reasons.
First, Davis did not make an unequivocal request for self-
representation. Second, assuming Davis’s statements at a pretrial conference
amounted to an unequivocal request for self-representation, the totality of the
circumstances establishes that Davis abandoned that request. Consequently,
the fact that the trial court did not rule on a motion for self-representation was
not error, let alone structural error. Davis’s claim must be rejected.
_________________
_
( ... continued)
imposed a minimum consecutive sentence of 1.5 years. (Id. at 15.) This
appeal does not relate to Davis’s probation violation. (See O.B., at 14–20;
S.R.O.A. 9, 113–14.)
4
A-40
A.
STANDARD OF REVIEW.
A ruling that denies a defendant the right to represent himself is
reviewed for an abuse of discretion. See State v. McLemore, 230 Ariz. 571,
575, ¶ 15 (App. 2012). “A court’s refusal or failure to exercise its discretion
may be treated as an abuse of discretion.” Id. (citation omitted). “However,
regardless of the standard of review, an erroneous failure to accord a defendant
his properly asserted right to represent himself when he is competent to waive
counsel in a criminal case is structural error requiring reversal without a
showing of prejudice.” Id. (citation omitted); accord State v. Ring, 204 Ariz.
534, 552 (2003).
B.
RELEVANT FACTS.
In August 2016, the defense filed a motion for discovery, requesting
inter alia: (1) copies of any “tangible objects which the prosecutor will use at
trial … including any tapes, statements or conversations”; (2) a “copy of any
electronic surveillance of any conversation to which the defendant was a party,
including jail tapes”; (3) a “copy of any officer body camera footage related to
this case”; and (4) “[a]ll written or otherwise recorded statements of any
witness disclosed by the State.”
(S.R.O.A. 17.)
The State’s disclosures
included an audio recording of Davis’s police interrogation. (R.T. 2/16/17, at
7.)
5
A-41
On February 16, 2017, the trial court conducted a final trial management
conference.
(S.R.O.A. 48.)
During the conference, the defense attorney
explained to the court that Davis was personally not ready to proceed to trial.
(R.T. 2/16/17, at 4.) In response to the court’s inquiry as to why, Davis stated
that he wanted to file pretrial motions requesting “body cams, dash cams”
relating to the theft-of-means charge and his interrogation. (Id.) He claimed
that he had “been asking for” that evidence but “never got” it. (Id.) Davis
stated that, if his attorney did not want to file those motions, he was “willing to
put in the motions to go pro per.” (Id. at 5.)
The trial court explained: “[Y]ou can go pro per if you want to, but at
this point, your attorney is the one that decides strategy … what motions get
filed and … don’t get filed. He’s not going to file a motion that he doesn’t
think there’s a legal basis for.” (Id.) Davis responded: “I do. So if that’s the
case, I have to file, I have to go pro per, then that’s what I want to do.” (Id. at
5–6.)
Immediately thereafter, the defense attorney asked for a continuance to
locate a material witness, and Davis personally asked if there was any way to
get the “body cams” and “dash cams” he wanted. (Id. at 6–7.) The State
avowed to the court: (1) it had already inquired with the case agent about
Davis’s video request, given that Davis raised the same concern at a previous
6
A-42
hearing; (2) “there was no additional video from the incident”; and (3) it had
already disclosed “[e]verything that the police had” to the defense. (Id. at 7.)
Still, Davis contended that there was video, not just audio, of his
interrogation based on his belief that his interrogation room had a camera “up
there.” (Id.) The court asked the State to follow up with the police again; the
State indicated that it would.
(Id. at 8.)
The conference ended shortly
thereafter. (Id. at 8–9.) Aside from Davis’s two brief statements—(1) “I’m
willing to put in the motions to go pro per,” and (2) “I have to file, I have to go
pro per, then that’s what I want to do”—Davis did not mention selfrepresentation or a withdrawal of counsel. (See id. at 4–9.)
Over the next four months, the trial court conducted an additional eight
pretrial conferences, including a settlement conference, and Davis attended
each of them with his attorney representing him. (S.R.O.A. 47, 49, 55, 58, 60–
61, 63, 66, 70.) Those conferences occurred as follows:
• March 2, 2017: The parties discussed the defense’s motion to
continue. (S.R.O.A. 47.) The topic of Davis’s representation was
not raised. (Id.)
• April 3, 2017: The parties discussed the defense’s motion to
continue. (S.R.O.A. 49.) The topic of Davis’s representation was
not raised. (Id.)
• April 27, 2017: The parties discussed scheduling, and the
defense’s motion to continue and interest in having a settlement
conference. (S.R.O.A. 55.) Although Davis objected pro se to
excluding time for a continuance, he did not take that opportunity
7
A-43
to inquire about self-representation or any pending selfrepresentation motion, or to object to being represented by
counsel. (See id.; R.T. 4/27/17, at 5–8.)
• May 3, 2017, a.m.: The parties discussed the settlement
conference and trial schedules. (S.R.O.A. 60; R.T. 5/3/17, a.m., at
4–7.) The topic of Davis’s representation was not raised. (See
R.T. 5/3/17, a.m., at 4–7.)
• May 3, 2017, p.m. (settlement conference): The parties
discussed Davis’s theft-of-means and probation-violation charges;
pending plea offer; applicable sentencing range; and potential
instruction for a lesser-included offense. (S.R.O.A. 58; R.T.
5/3/17, p.m., at 4–12, 23–30.)
Following the settlement judge’s advisement that Davis
may face a probation violation regardless of the verdict in this
case, Davis responded that he would “beat that” and was
intending to ask for a Willits 2 instruction. (R.T. 5/3/17, p.m., at
12.) Davis explained that he wanted to request such an instruction
“because the State allowed the cops to get rid of evidence,” and he
believed he could prove that the State lied about there being no
interrogation video or “body cams.” (Id.) Davis’s attorney
conveyed to the settlement judge that the State informed the
defense that it had “looked for everything” but found no video,
and that Davis nevertheless believed his interrogation was videorecorded. (Id. at 12–13.) Davis subsequently claimed that the
“body cam and the dash cam” were “pertinent to [his] case.” (Id.)
The settlement judge inquired how that evidence would help
Davis’s probation-violation case. (Id. at 14.) A discussion on that
topic followed, in which Davis actively participated. (Id. at 14–
23.)
Next, believing the indictment was based on police lies,
Davis complained about his theft-of-means charge and the grand
jury proceeding. (Id. at 23–30.) When it was explained to him
_______________
2
State v. Willits, 96 Ariz. 184 (1964).
8
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that any challenge to the indictment would be untimely, Davis
responded: “This is all trash. … That’s crazy. That’s all I can say
about this. [Y]ou’re trying to bully me into a plea. I told you I
didn’t want to do this in the first place. This is a waste of my
time, your time, the taxpayer’s money, same thing. It’s trash.”
(Id. at 28–29.)
Despite his active participation throughout the settlement
conference, Davis did not express an interest in selfrepresentation, inquire about any pending self-representation
motion, or object to being represented by counsel. (See id. at 4–
30; S.R.O.A. 58.)
• May 8, 2017: The parties discussed the defense’s motions to
continue and to transport a witness. (S.R.O.A. 61; R.T. 5/8/17, at
4–6.)
Davis voiced his frustration about the multiple
continuances, but he did not raise the issue of self-representation
and did not object to being represented by counsel. (See R.T.
5/8/17, at 4–6.)
• May 25, 2017: The parties discussed the defense’s motion to
continue. (S.R.O.A. 63.) The topic of Davis’s representation was
not raised. (Id.)
• June 1, 2017: The parties discussed the defense’s motion to
continue and Davis’s rejection of the State’s plea offer. (S.R.O.A.
66; R.T. 6/1/17, at 6.) Before resetting the trial date, the trial court
asked the parties if there were any “outstanding motions.” (R.T.
6/1/17, at 4.) The defense attorney indicated that there were none,
and Davis said nothing in response. (Id. at 4–5.) The topic of
Davis’s representation was not raised. (See id. at 4–6.)
• June 8, 2017 (Trial, day 1) 3: Before jury selection commenced,
the court asked the parties if there were “any matters that [they]
_______________
3
The transcript’s coversheet for this day was incorrectly dated June 8, 2016,
rather than June 8, 2017. (See R.O.A. 70.)
9
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need[ed] to address prior to trial.” (R.T. 6/8/17, at 3.) The
defense attorney responded, “No, not from defense’s perspective.”
(Id.) Davis remained silent; he neither raised the issue of selfrepresentation nor objected to representation by counsel. (Id. at
3–5; S.R.O.A. 70, at 1–2.)
Finally, Davis did not file any pro se pretrial motions either to waive his
right to counsel or to proceed pro se, nor did his defense attorney file any
pretrial motions to withdraw. (See generally R.O.A.)
C.
THE TRIAL COURT DID NOT COMMIT STRUCTURAL ERROR.
Davis’s claim that the trial court committed structural error by denying a
request for self-representation (O.B., at 14–15) is baseless because Davis did
not unequivocally demand self-representation. To the extent that he did make
such a demand, Davis abandoned his request before the court could rule on it.
1.
Davis did not unequivocally demand self-representation.
Both the United States and Arizona constitutions protect a defendant’s
right to proceed without counsel and represent himself. Faretta v. California,
422 U.S. 806, 818–19 (1975); State v. Lamar, 205 Ariz. 431, 436, ¶ 22 (2003).
To exercise the right of self-representation, the defendant must
unequivocally demand it. Faretta, 422 U.S. at 819. “An unequivocal demand
to proceed pro se should be, at the very least, sufficiently clear that if it is
granted the defendant should not be able to turn about and urge that he was
improperly denied counsel.” State v. Hanson, 138 Ariz. 296, 300 (App. 1983)
10
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(citation and quotation marks omitted).
A statement fails to meet the
unequivocal standard if it was “momentary caprice”; the result of thinking out
loud”; akin to negotiating; or was an “impulsive” or “emotional” response.
Jackson v. Ylst, 921 F.2d 882, 888–89 (9th Cir. 1990); State v. Henry, 189
Ariz. 542, 548 (1997).
A statement that only contemplates self-
representation—“I think I will [represent myself]”—likewise fails to satisfy the
unequivocal standard, particularly when it was the only time self-representation
was mentioned; and it was made solely because the defendant wanted to
present a specific motion to the court without otherwise objecting to his
counsel. Meeks v. Craven, 482 F.2d 465, 467 (9th Cir. 1973).
Davis did not make an unequivocal demand to represent himself. The
only pretrial statement Davis made that could be construed as such a request
was the statement, “I have to file, I have to go pro per, then that’s what I want
to do.” (See supra, Section I(B).) That comment, however, does not satisfy
the unequivocal standard given the context in which it was said. Prior to
making that comment, Davis expressed frustration about his attorney not filing
motions to obtain the interrogation and body camera evidence, despite his
constant demands for that evidence. (R.T. 2/16/17, at 4–5, 7.) Immediately
after Davis made the “I have to file” comment and his attorney requested a
continuance for a different reason, Davis—instead of returning the
11
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conversation to the topic of self-representation—asked the court if there was
any way to get the video evidence he wanted, and accused the State of lying
and withholding that evidence. (Id. at 6–8.)
In other words, immediately before and immediately after Davis made
his “I have to file” comment, he was concerned only with obtaining the video
evidence he believed existed.
The “I have to file” comment was thus
ambiguous as to whether it referred to a pro se discovery motion for video
evidence or to a sincere motion for self-representation—the surrounding
context, as described above, suggests it was the former. Additionally, not once
before trial did Davis object to having legal representation, request a ruling, or
revisit the topic of self-representation. (Supra, Section I(B).) Meanwhile, at
subsequent pretrial proceedings, Davis repeatedly revisited the video-evidence
issue and complained about his attorney not filing discovery motions (supra,
id.), further demonstrating that obtaining the video evidence was Davis’s only
objective.
Moreover, Davis’s comment was saddled between expressions of
frustration and suspicion about unmet demands, lies, and evidence withholding,
suggesting Davis’s comment was momentary caprice or an emotional response.
In that light, Davis’s “I have to file” comment was more of a hasty, thoughtless
tactic to get what he wanted than a sincere request for self-representation.
12
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Davis’s one-time ambiguous comment thus did not amount to an unequivocal
demand for self-representation, and the trial court could not have committed
structural error for that reason.
2.
The totality of the circumstances established that Davis
abandoned any request for self-representation.
Assuming, arguendo, that Davis’s “I have to file” comment constituted
an unequivocal demand for self-representation, the trial court still did not
commit any error because Davis abandoned his request before the trial court
could rule on it.
Although the trial court should grant a valid request for selfrepresentation, its failure to do so does not constitute structural error when the
totality of the circumstances demonstrates that the defendant abandoned the
request before it could be ruled on. Lamar, 205 Ariz. at 436, ¶ 22 (citation
omitted); McLemore, 230 Ariz. at 580, ¶ 29. Indeed, when a court “omit[s] to
rule on [such] a motion,” “it is reasonable to require the defendant who wants
to take on the task of self-representation to remind the court of the pending
motion” because “[d]efendants who sincerely seek to represent themselves
have a responsibility to speak up” in the “busy and hectic” world of the trial
court. McLemore, 230 Ariz. at 581, ¶ 33 (citation omitted).
When determining if a defendant abandoned his request,
[i]nformative factors include but are not limited to a consideration
13
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of the defendant’s opportunities to remind the court of a pending
motion, defense counsel’s awareness of the motion, any
affirmative conduct by the defendant that would run counter to a
desire for self-representation, whether the defendant waited until
after a conviction to complain about the court’s failure to rule on
his or her motion (thus indicating the defendant was gaming the
system), and the defendant’s experience in the criminal justice
system and with waiving counsel.
Id. at 582, ¶ 35. This determination may be made based on the record alone.
See id. at ¶ 36 (finding an evidentiary hearing unnecessary given the record).
Here, Davis’s conduct is conclusive: he failed to act, though he was able
and had ample opportunities to request a ruling or otherwise inquire about selfrepresentation.
Davis only mentioned self-representation twice in two
ambivalent and brief statements, which is noteworthy considering Davis
attended all subsequent pretrial proceedings and freely voiced his complaints
and objections about other topics on numerous occasions during those
proceedings. (Supra, Section I(B).)
Davis also squandered three perfect opportunities to raise selfrepresentation. Assuming Davis’s comment constituted a request for selfrepresentation, the settlement conference gave Davis the first perfect
opportunity to bring the pending issue to everyone’s attention. Davis was
generally an active participant at that conference, and discussed at length his
request for “dash and body camera” evidence and its importance to him. (R.T.
5/3/17, p.m., at 12–23; see generally id. at 6–30.) Although that evidentiary
14
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topic prompted Davis to raise the topic of self-representation in the past (R.T.
2/16/17, at 4–6), it did not similarly prompt him to raise the topic of selfrepresentation again during the conference (R.T. 5/13/17, p.m., at 12–14; see
also id. at 15–30). The June 1st hearing and first day of trial before jury
selection were likewise perfect, yet squandered, opportunities to raise selfrepresentation. The trial court asked the parties on both occasions whether
there was any outstanding motion or other matter that it needed to address
before trial; Davis remained silent both times. (R.T. 6/1/17, at 4–5; R.T.
6/8/17, at 3–5.)
Furthermore, without objection, Davis attended all subsequent pretrial
proceedings with his attorney representing him, and his attorney did not make
any pretrial motions to withdraw. (See supra, Section I(B).) Based on the
totality of these circumstance (Davis’s repeated failure to follow-up on or raise
self-representation, and his unobjected-to acquiescence to counsel), Davis
abandoned any request he made for self-representation.
This Court reached the same conclusion in the analogous case, State v.
McLemore. The defendant in that case was deemed to have abandoned his
request for self-representation based on his failure to follow-up on his motion
for self-representation.
McLemore, 230 Ariz. at 579–80, ¶¶ 25, 29.
Specifically, the defendant never raised his self-representation motion at any of
15
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his subsequent court proceedings, including at a hearing that presented him
with the “perfect” opportunity to do so since the hearing concerned his
attorney’s possible withdrawal. Id. at 582, ¶ 36. The defendant (like Davis)
also continued to attend his pretrial proceedings with an attorney representing
him, without any objection to the attorney’s conduct. Id.
Other jurisdictions have reached similar conclusions based on similar
facts. See United States v. Barnes, 693 F.3d 261, 272 (2d Cir. 2012) (“Where
there has been no clear denial of the request to proceed pro se and the question
of self-representation [i]s left open for possible further discussion, the
defendant’s failure to reassert his desire to proceed pro se and his apparent
cooperation with his appointed counsel, who conducts the remaining pretrial
and trial proceedings, constitute[s] a waiver of his previously asserted Sixth
Amendment right to proceed pro se.”) (citations and internal quotation marks
omitted); Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (“A waiver
may be found if it reasonably appears to the court that defendant has
abandoned his initial request to represent himself. The present case presents an
example of waiver through subsequent conduct after an initial request.”);
Hodge v. Henderson, 761 F. Supp. 993, 1003 (S.D.N.Y. 1990) (holding that the
petitioner “abandoned” his request to proceed pro se given that “[he] did not
persist in his desire to appear pro se and it was not reasserted unambiguously
16
A-52
before [the presiding justice] at trial”), aff'd, 929 F.2d 61 (2d Cir. 1991);
People v. Kenner, 272 Cal. Rptr. 551, 555 (Cal. Dist. Ct. App. 1990) (finding
the appellant abandoned or withdrew his self-representation motion because he
“had ample opportunity to call the court’s attention to the neglected [selfrepresentation] motion, but did not”; his “conduct throughout the proceedings
indicated unequivocally that he agreed to and acquiesced in being represented
by counsel”; and “[a]lthough he spoke more than once, he said and did nothing
suggesting any dissatisfaction with counsel’s representation”). 4
Like McLemore and the persuasive cases cited, Davis’s conduct
demonstrated his intent to abandon any request for self-representation that he
may have made. As a consequence, the trial court’s inaction with regard to
such a request did not constitute structural error.
_______________
4
In Arizona, unlike some of these jurisdictions, a request to exercise the right
of self-representation may only be abandoned, not waived. See McLemore, 230
Ariz. at 580, ¶ 28 (rejecting the argument that the defendant’s subsequent
conduct waived his right of self-representation because that right had not
“ripened or become effective until the court [ ] granted the request”).
17
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II
THE TRIAL COURT PROPERLY DENIED DAVIS’S POSTTRIAL
REQUEST
FOR
SELF-REPRESENTATION
BECAUSE (1) THE REQUEST WAS UNTIMELY, AND (2)
DAVIS DID NOT INTELLIGENTLY AND KNOWINGLY
WAIVE THE RIGHT TO COUNSEL.
Davis contends that the trial court’s denial of his post-trial request to
represent himself was an abuse of discretion. (O.B., at 17.) Davis’s request
was untimely, for which reason alone denying it was proper. Further, Davis’s
allegation that the trial court based its ruling on an unsubstantiated finding that
he was incompetent to waive the right to counsel is baseless. (Id. at 17–18.)
The trial court denied the request, not because Davis was incompetent, but
because Davis did not waive his right to counsel “intelligently and knowingly,”
a necessary condition for self-representation. More specifically, Davis did not
understand the consequences of waiving all counsel because the record
demonstrates that he only wanted to file pro se motions to withdraw his
appointed counsel and to vacate the judgment. Absent a valid waiver of
counsel, the trial court did not abuse its discretion in denying Davis’s selfrepresentation request.
A.
STANDARD OF REVIEW AND APPLICABLE LAW.
The right of self-representation goes hand-in-hand with waiving the right
to counsel because a defendant must intelligently and knowingly relinquish the
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right to counsel in order to represent himself. Faretta, 422 U.S. at 835.
A finding that the defendant waived his right to counsel is reviewed for
an abuse of discretion.
State v. Dann, 220 Ariz. 351, 359, ¶ 16 (2009).
“Whether [the defendant] has made an intelligent and knowing waiver of
counsel is a question of fact. A waiver finding is based substantially on the
trial judge’s observation of the defendant’s appearance and actions.” Id. at 358,
¶ 10 (citation omitted).
When determining whether the defendant has waived his right to
counsel, “courts indulge in every reasonable presumption against waiver.”
Brewer v. Williams, 430 U.S. 387, 404 (1977) (emphasis added) (citations
omitted); see also Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (“It has been
pointed out that ‘courts indulge every reasonable presumption against waiver’
of fundamental constitutional rights and that we ‘do not presume acquiescence
in the loss of fundamental rights.’”) (footnotes omitted), overruled on other
grounds by Edwards v. Arizona, 451 U.S. 477 (1981); Adams v. Carroll, 875
F.2d 1441, 1444 (9th Cir. 1989) (“Because a defendant normally gives up more
than he gains when he elects self-representation, we must be reasonably certain
that he in fact wishes to represent himself.”) (citation omitted); Hodge, 761 F.
Supp. at 1001 (acknowledging that a “strong presumption against waiver of the
right of counsel” exists) (citation omitted).
19
A-55
The presumption against waiver exists to ensure that the automatic right
to counsel is not inadvertently waived so that a defendant may represent
himself. As succinctly explained in Hodge v. Henderson:
When the right to counsel and the right to proceed pro se
collide, it is reasonable to favor the right to counsel over the right
to self-representation in that the former attaches automatically and
has to be affirmatively waived to be lost whereas the latter does
not attach until it is asserted. The consequences of being deprived
of counsel are far more serious than those of not being allowed to
proceed uncounselled [sic].
761 F. Supp. at 1003 (citations omitted); accord Johnson, 304 U.S. at 465;
Adams, 875 F.2d at 1444; McLemore, 230 Ariz. at 576, ¶ 17.
A finding of no valid waiver will be upheld for any legally correct
reason. State v. Doss, 116 Ariz. 156, 160 (1977); State v. Weaver, 244 Ariz.
101, ¶ 8 n.1 (App. 2018).
B.
RELEVANT FACTS.
Neither party nor the court appeared to raise any issue about Davis’s
competency. (See S.R.O.A. 13, 15, 34, 37.) And, according to Davis’s 2016
presentence report, Davis did not have any mental problems, but he
experienced “mood swing[s].” (S.R.O.A. 33.)
1.
Davis’s post-trial request.
Davis “put in a motion” sometime after his trial concluded.
(R.T.
7/17/17, at 5.) Later statements made by Davis and his attorney suggested that
20
A-56
“put in a motion” meant Davis had submitted a motion to his attorney that
asked for his attorney’s withdrawal. (Id. at 3–5.)
On July 17, 2017, the date set for sentencing, Davis’s attorney informed
the trial court:
Davis [] filed a motion since our trial to have me withdrawn —
taken off the case, and I hadn’t seen it yet [sic]. … I don’t know if
it’s withdraw me [sic] and appoint somebody else or if he wanted
to be pro per. He has indicated to me he doesn’t want me to
have anything else to do with the rest of his case. That is
absolutely fine. So I think we need to determine counsel if that is
what [] Davis desires.
(Id. at 3–4 (emphasis added).)
Having also not seen Davis’s pro se motion, the court invited Davis to
clarify his position. (Id. at 4–5.) Davis then explained that he did not want his
appointed attorney to represent him. (Id. at 5–7.) He claimed that his attorney
falsely told him that a bench trial was not “good” for criminal trials; and Davis
claimed that he had wanted a bench trial because his case involved
“technicalities.” (Id.) The defense attorney denied the allegation that he lied,
and Davis responded, “Wow.” (Id. at 7–8.)
Davis further complained that his attorney did not file a motion for a
new trial or a motion to vacate the judgement, as Davis had wanted. (Id. at 7.)
The trial court explained to Davis that a motion for a new trial would be
untimely and no extension to file such a motion would be granted; and, so, it
21
A-57
denied Davis’s request to the extent Davis was asking to represent himself for
the exclusive purpose of filing such a motion. (Id. at 8–9; S.R.O.A. 87, at 2.)
The court also explained to Davis that a motion to vacate the judgment
could still be filed but not until after sentencing. (R.T. 7/17/17, at 10–11.) It
went on to explain that imposing sentence was all that remained of Davis’s
trial; and that only a few sentencing issues were outstanding because Davis
already admitted to some of his prior convictions during trial and the court’s
sentencing discretion was limited. (Id. at 11–12.)
The court next asked Davis to clarify if he wanted to start representing
himself at sentencing, or if he wanted to wait and represent himself only for a
post-sentence motion to vacate the judgment. (Id. at 12–13.) Rather than
answer the question, Davis responded, “So basically it doesn’t matter?” (Id. at
13.)
The court stated that Davis’s answer did matter even though the
remaining issues were narrow, to which Davis replied: “I understand
everything you are saying. Nobody is understanding [sic] that I have been
railroaded to this point.” (Id.)
Assuming Davis’s last comment referred to the defense attorney’s
alleged bench-trial lie, the trial court stated that it would have similarly found
Davis guilty based on the trial evidence, rendering any alleged lie not
prejudicial. (Id. at 13–14.) The prosecutor added that the State would not have
22
A-58
agreed to a bench trial had Davis requested one. (Id. at 28.) The trial court
also noted that the jury proved itself to be fair and impartial in its deliberations
given that it found none of the State’s alleged aggravating factors proven. (Id.
at 14.) Davis responded, “I’m not worried about the factors or the time or
whatever”; instead, Davis challenged whether the knowledge element for theftof-means was proven and believed that such a “technicalit[y]” was best
decided by a judge than jury. (Id. at 6, 14.)
Although the trial court informed Davis that knowledge was an issue for
appeal and not sentencing, Davis complained repeatedly, “That is what I’m
saying. It is a railroad,” followed by, “I don’t want [the defense attorney]” as
my counsel. (Id. at 14–15.) The trial court subsequently explained that it did
not believe Davis was in a “present state of mind to represent [him]self [that
day]” or that he was “calm enough” or “cogently following things” because he
continuously failed to answer the court’s question about when he wanted to
start representing himself, and appeared to only want to argue. (Id. at 15–16.)
Davis disagreed and expressed that he just wanted to be heard. (Id. at 16.)
Thereafter, the following dialogue occurred:
THE COURT: … You want to represent yourself here today. Let’s
go ahead and ask you the questions.
....
THE COURT: Do you suffer from any mental illness?
23
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THE DEFENDANT: They say I’m SMI.
THE COURT: When was the designation that you were SMI, sir?
THE DEFENDANT: They say I am. Then they say I am not, and
then they say I am. This is the State. I don’t know. They say I
am. They say I’m not. They say I am.
THE COURT: Are you taking any medications for your —
THE DEFENDANT: No.
THE COURT: — for the allegation, I guess, that you are SMI?
THE DEFENDANT: No.
THE COURT: You have been — the SMI that you have been
diagnosed with is, what, bipolar, sir?
THE DEFENDANT: Bipolar, schizophrenic, something else.
....
THE COURT: Sir, do you understand that there are dangers
and disadvantages of representing yourself?
Do you
understand that?
THE DEFENDANT: No.
THE COURT: Okay. Well, let’s talk through this. Are you
trained in the law?
THE DEFENDANT: No.
THE COURT: Have you ever represented yourself before?
THE DEFENDANT: No.
THE COURT: Have you had any legal education?
THE DEFENDANT: No.
24
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THE COURT: Okay. Do you understand that having a lawyer
represent you, a lawyer is versed in the law, procedure, courtroom
procedures; a lawyer is trained in all of these areas where you
are not trained, sir. There may be — it may be of great benefit
to have a lawyer represent you. Do you understand that?
THE DEFENDANT: Yes.
....
THE COURT: … The jury found that you were on probation at
the time of the 2016 case occurred [sic]. The jury did not find any
aggravating circumstances that the State alleged. So, therefore, I
believe that I’m locked into the presumptive term on [this] case;
and really what is in play is the length of your sentence that will
run consecutively on the 2012 [probation-violation] case. Do you
understand that?
THE DEFENDANT: Yes.
THE COURT: Now, the State may disagree with me on that
determination; and it may be to your significant benefit to have
a lawyer able to argue this [sentencing issue] because your
lawyer is trained in the law. Do you understand that?
THE DEFENDANT: Not really. I don’t understand what the
benefit of it is.
THE COURT: The State — I anticipate the State is going to argue
that I can still impose an aggravated term in the 2016 case.
THE DEFENDANT: Okay.
THE COURT: And I read the law a little bit differently. I think
having a veteran-experienced lawyer like [the defense attorney]
might be of tremendous assistance to you to rebut the legal
argument that the State, I’m anticipating, is going to make here
later today. Do you understand that it may be to your benefit
to have a lawyer representing you when the law starts getting
argued?
25
A-61
THE DEFENDANT: I think it will be because I don’t know the
law.
THE COURT: You are right.
THE DEFENDANT: I’m just being—I mean, I know you think
I’m being angry or violent or argumentative. I’m just saying
it’s kind of hard when the trust has been broken especially
when [my attorney] sat here and lied to me. That is what I’m
saying.
THE COURT: I understand where you are coming from. I really
— I do understand. Sir, you understand the sentences must be
stacked under Arizona law? You understand that?
THE DEFENDANT: Yeah, they are going to stack another 3 years
on top.
THE COURT: That I’m required by law to do that, right. I just
have to confirm that you understand that. You do understand that?
Yes?
THE DEFENDANT: Yes.
THE COURT: Okay. You understand that for the last sentence
that you serve, you are required to serve a term of community
supervision. It is one day for every seven days. You understand
that?
THE DEFENDANT: Yes.
....
THE COURT: Sir, you understand if you represent yourself, you
are going to be held to the same standard as an attorney regarding
the presentation of your case at both the trial on the priors and at
the time of sentencing. Again, it includes: Knowledge of
courtroom procedure, applicable case law, Arizona Criminal
Code, Arizona Rules of Criminal Procedure and rules of evidence.
Do you understand that?
26
A-62
THE DEFENDANT: Your Honor?
THE COURT: Yes, sir.
THE DEFENDANT: What was that based on again, on the 2016
case?
THE COURT: The 2016 case. The presumptive term is 11 and a
quarter years. The mitigated term is 7 and a half years. The
aggravated term is 25 years. Under the law, that is what the range
is. My reading of the law — which I’m thinking the lawyers are
— I’m probably going to appreciate some legal argument on this.
My reading is that my hands are tied at 11 and a quarter years.
My reading is that the only thing that I have got some flexibility
on is how long the misconduct involving weapons sentence
should be [for purposes of the probation-violation sentence];
whether it should be 2 and a half years, a presumptive term or less
than that all the way down to 1 year or more than that all the way
up to 3.75 years. That is the only thing that I believe is in play.
THE DEFENDANT: Well, it’s all about the same amount of time.
You can go ahead and give me the 3 and a half years on top of
the 11 and half years and just postpone it so I can see my
family at court. I mean, this is all a waste of time. 11 and a
half years, 3 and a half on top, what is the difference? That is
still 14 years, a year later, 12 years and 2 years, what is the
difference? It doesn’t matter. You can go ahead and give me
the 2 and a half years and go ahead and max it out. That way
you postpone it. I can see my family. I was supposed to go to
court on the 18th. That is what they said, the 18th. I’m supposed
to go into jail on the 18th. My family isn’t here so you can go
ahead and do what you want to do. Max it out, you know
what I mean; and it is what it is.
THE COURT: The Court finds that the Defendant is — [ ] Davis,
I’m not letting you represent yourself. You are not making wise
decisions. Based on your prior mental health diagnosis that you
are bipolar, I do not believe that you are in a mental state right
now where you can effectively represent yourself free from
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emotion and knee-jerk reactions. Quite frankly, sir, I have never
had anyone who wants to be maxed out due to an emotional
response.
(Id. at 17–18, 20–21, 23–27 (emphasis added).) Davis did not object to the
court’s ruling. (See id. at 27–29; S.R.O.A. 87.)
Further into that same proceeding, but before the trial court imposed a
sentence, Davis’s attorney moved for a continuance to allow for a mitigation
hearing, something Davis’s family could attend; Davis readily agreed and the
court granted the motion. (R.T. 7/17/17, at 55–56.)
On the day set for the mitigation/sentencing hearing, though still
represented by counsel, Davis filed a pro se motion to “[s]et aside the verdict
of judgment” and, in it, requested an evidentiary hearing. (S.R.O.A. 97.)
When given the opportunity to address the court at the mitigation/sentencing
hearing, Davis did not mention any remorse or other factor that could mitigate
his sentence. (See R.T. 8/18/17, at 7–11, 14–15.) He only clarified the reason
he previously “wanted to go pro per,” explaining that he generally wanted to
move to set aside the verdict because he believed that the indictment and his
conviction were based on police lies and that he could prove his innocence if
his pro se “motion for an evidentiary hearing” was granted. (Id. at 8–10.)
Davis also clarified the intended meaning of his prior “max it out” comment.
(Id. at 10.) He stated: “What I meant by that when I said, I don’t care about the
28
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years because [sic] I know I’m innocent of this crime. If I beat this crime then
my probation is void.” (Id.)
C.
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY DENYING
DAVIS’S POST-TRIAL REQUEST TO REPRESENT HIMSELF.
1.
Davis’s request was untimely.
It was proper to deny Davis’s self-representation request because the
request was not timely. A request is timely only if it was made before jury
selection began. Weaver, 244 Ariz. at ¶¶ 9–10; see also State v. Boggs, 218
Ariz. 325, 338, ¶ 59 & n.4 (2008) (stating it is within the court’s discretion to
deny a motion for self-representation that was made “in the middle of the
sentencing proceedings”); State v. Cornell, 179 Ariz. 314, 326 (1994) (“[I]t is
uniformly held that all motions [for pro se status] made after jury selection has
begun are untimely ….”) (citation and internal quotation marks omitted).
Davis’s request was untimely because Davis made it on the day set for
sentencing, before it was known the proceeding would be continued and long
after jury selection occurred. See Jackson, 921 F.2d at 888 (finding a Faretta
request made after the defendant moved for a new trial untimely); Ramirez v.
Yates, 71 F. Supp. 3d 1100, 1118 (N.D. Cal. 2014) (finding the defendant’s
Faretta request untimely when it was made on the day set for sentencing).
“Denial of a defendant’s untimely motion is not an abuse of discretion.”
Cornell, 179 Ariz. at 326 (citation omitted); see also Boggs, 218 Ariz. at 338,
29
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¶ 61 (“When a defendant has waived his right to self-representation, the trial
court may exercise its discretion in deciding whether to permit or deny a
subsequent attempt to proceed pro per.”) (citation omitted). Accordingly, the
trial court did not abuse its discretion when it denied Davis’s untimely request.
On a related note, because Davis’s request for self-representation was
untimely, it was within the trial court’s discretion to balance the integrity and
efficiency of the proceedings against Davis’s right of self-representation. See
Boggs, 218 Ariz. at 338, ¶¶ 59–62 (finding no abuse of discretion to deny the
defendant’s untimely subsequent request for self-representation because the
court wanted to avoid the inconvenience of having the defendant go back-andforth on the issue). A person’s right to represent himself is not absolute,
particularly in this case where Davis appeared to have been only requesting
permission to file untimely and fruitless motions pro se. See Martinez v. Ct. of
Appeal of Calif., Fourth Appellate Dist., 528 U.S. 152, 162 (2000) (“Even at
the trial level, … the government’s interest in ensuring the integrity and
efficiency of the trial at times outweighs the defendant’s interest in acting as
his own lawyer.”); Boggs, 218 Ariz. at 338, ¶ 59 (“The right to proceed without
counsel is not unqualified, but must be balanced against the government’s right
to a fair trial conducted in a judicious, orderly fashion”) (citation and quotation
marks omitted); Lamar, 205 Ariz. at 436, ¶ 27 (explaining that the defendant’s
30
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“right to represent himself does not exist in a vacuum”); State v. De Nistor, 143
Ariz. 407, 413 (1985) (explaining that the trial court may balance the right of
self-representation with other factors, including “the disruption and delay
expected in the proceedings if the request [for self-representation] were to be
granted) (citation omitted).
2.
Davis did not intelligently and knowingly waive his right
to counsel.
Untimeliness aside, Davis’s claim that the trial court improperly denied
his request for self-representation still fails. The trial court denied Davis’s
request because it found that Davis’s waiver of counsel was not made
“intelligently and knowingly,” not because it implicitly found Davis to be
incompetent, as Davis alleges (O.B., at 16–17).
The right to proceed pro se applies at all stages of criminal proceedings,
including sentencing. See Dann, 220 Ariz. at 359, ¶ 16 (resentencing); Henry,
189 Ariz. at 550 (sentencing). Before he may represent himself, a criminal
defendant must waive his right to counsel. Godinez v. Moran, 509 U.S. 389,
396 (1993). A valid waiver of counsel is one made intelligently, knowingly,
and voluntarily by a defendant competent to waive his right to counsel. 5 Id. at
_______________
5
The voluntariness of Davis’s waiver is not at issue. Neither the State nor
Davis suggests that Davis was coerced to waive counsel.
31
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399–401; Faretta, 422 U.S. at 835; McLemore, 230 Ariz. at 577, ¶ 18; see also
Ariz. R. Crim. P. 6.1(c).
The “intelligent and knowing” requirement for a waiver of counsel refers
to a person’s actual understanding. Godinez, 509 U.S. at 401 n.12. While
there is no prescribed test to satisfy this requirement, a defendant is considered
to have intelligently and knowingly waived his right to counsel if he knew
what he was doing and made his choice “with eyes open.” Iowa v. Tovar, 541
U.S. 77, 88 (2004) (citation omitted); see also Hodge, 761 F. Supp. at 1001
(“In other words, a trial judge must determine whether a defendant genuinely
means what he says.”) (citation omitted). At a minimum, the defendant should
have understood “(1) the nature of the charges against him, (2) the dangers and
disadvantages of self-representation, and (3) the possible punishment upon
conviction.” Dann, 220 Ariz. at 360, ¶ 24 (citation omitted). The court may
consider the defendant’s conduct, background, understanding, and knowledge
when making that determination. Johnson, 304 U.S. at 464; Dann, 220 Ariz. at
359, ¶ 16; Doss, 116 Ariz. at 160.
Davis’s responses did not satisfy the “intelligent and knowing”
requirement. During the colloquy, Davis admitted, both initially and even after
further explanation, that he did not “really” understand the benefits of having a
lawyer. (Supra, Section II(B).) When he finally acknowledged those benefits,
32
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Davis simultaneously complained that “what [he was] saying” was that he lost
trust in his appointed attorney. (Supra, id.) By making that simultaneous
concession and loss-of-trust complaint, Davis clarified that his motive for
making a self-representation request had nothing to do with self-representation
and everything to do with his dissatisfaction with his appointed attorney.
Davis complained pretrial and post-trial about his appointed attorney not
filing certain motions and allegedly lying to him; Davis “put in a motion”
regarding his representation; when asked to clarify what Davis sought in that
“motion,” his first response was that he did not want his appointed attorney to
represent him; he repeated his desire to have his attorney removed at least
twice in the sentencing proceeding; Davis clarified after sentencing that his
intended objective when he made his self-representation request at sentencing
was to file a pro se motion to vacate the judgment, believing himself to be
innocent and in the absence of his attorney’s cooperation; and Davis filed a pro
se motion to set aside the verdict on the day he was sentenced, despite still
being represented by counsel. (Supra, Sections I(B), II(B).) With that history
in mind, Davis’s simultaneous loss-of-trust complaint reasonably established
that Davis wanted to waive his appointed counsel (or appoint new counsel)
rather than waive all counsel. Given such ambiguity, it cannot reasonably be
said that Davis knew exactly what he was asking for, or that he understood the
33
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consequences of his inadvertent election to waive all counsel and represent
himself—at least not enough to overcome the strong presumption against a
waiver of counsel.
In addition, Davis’s request, itself, lacked sincerity. As the trial court
observed, Davis was emotional and “not calm” before and during the colloquy.
(Supra, Section II(B); see also Statement of the Case.) He was frustrated with
his attorney, felt “railroaded,” or attacked, by the system, and he was upset
about the possibility of not seeing his family before being sentenced. (Supra,
Section II(B); see also Section I(B).) Davis’s self-representation request and
attempted waiver were thus, more likely than not, impulsive reactions—part of
one of Davis’s “mood swing[s]” (supra, Section II(B)). In fact, in the closelyrelated context of determining whether a self-representation request is
unequivocal, emotional requests of the kind Davis made demonstrate a lack of
sincerity and justify the denial of a request for self-representation. See United
States v. Edwards, 535 Fed. App’x. 285, 287–88 (4th Cir. 2013) (finding no
error in denying the petitioner’s self-representation request where his reasons
suggested that he was making the request reluctantly, believing he had little
choice, partly because he mistrusted his attorney, was disappointed with his
representation, and “would rather proceed pro-se than be represented” by that
attorney who he believed was incompetent); United States v. Vampire Nation,
34
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451 F.3d 189, 207 (3d Cir. 2006) (“[W]e read [the petitioner’s] motion as an
expression of his frustration with our judicial process’s requirement that
communications take place between attorneys, not between parties and
attorneys, and not as a clear request for self-representation.”); Hodge, 761 F.
Supp. at 1003 (dismissing the petitioner’s claim that the lower court wrongly
denied his Faretta request, in part because the request was only made once
during an angry outburst); Stowe v. State, 590 P.2d 679, 681–82 (Okla. Crim.
App. 1979) (holding the defendant’s statement that he wanted nothing to do
with his defense attorney and “would rather defend [him]self” was not an
unequivocal request to represent himself partly because the defendant made the
statement during an angry outburst, while frustrated with his attorney’s poor
communication). The emotional aspect of Davis’s request considered, and the
lack of sincerity and rational understanding it signifies, Davis did not act “with
eyes open” when he opted to waive counsel. In other words, Davis did not
intelligently and knowingly waive all counsel.
Davis contends, on the other hand, that the court found an invalid waiver
of counsel based entirely on a finding of incompetency. (O.B., at 16–17.)
Unlike the “intelligent and knowing” requirement, the competency requirement
for a waiver of counsel refers to the defendant’s capacity or ability to
understand rather than his actual understanding. See Godinez, 509 U.S. at 401
35
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n.12 (“The focus of a competency inquiry is the defendant’s mental capacity;
the question is whether he has the ability to understand the proceedings. The
purpose of the ‘knowing and voluntary’ inquiry, by contrast, is to determine
whether the defendant actually does understand the significance and
consequences of a particular decision and whether the decision is uncoerced.”)
(emphasis in original) (citations omitted).
Because the court’s ruling was based entirely on Davis’s lack of actual
understanding, Davis’s argument lacks merit. According to his argument, the
court allegedly found Davis incompetent, and denied his request on that
ground, because it referenced Davis’s “prior mental health diagnosis” in its
ruling and found that Davis was not “in a mental state” to represent himself
“free from emotion and knee-jerk reactions.” (See O.B., at 17; R.T. 7/17/17, at
27–28.) A defendant’s ability to represent himself (as opposed to his ability to
waive a right) is admittedly not a factor that the trial court should have
considered when making its waiver ruling, see Godinez, 509 U.S. at 399;
however, the court’s ruling was ultimately not erroneous because, as already
explained, a legally correct reason (no intelligent and knowing waiver)
supports it. See Doss, 116 Ariz. at 160; Weaver, 244 Ariz. at ¶ 8 n.1. As for
the trial court’s reference to Davis’s mental health, the trial court was only
conveying its finding that Davis lacked actual understanding of the choice he
36
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was making, though the court’s choice of words rendered its reasoning
somewhat confusing.
Indeed, the trial court would not have questioned Davis’s competency.
A criminal defendant is presumed competent. See State v. Hegyi, 242 Ariz.
415, 417, ¶ 13 (2017) (acknowledging the presumption of sanity).
Competency becomes a concern only when “facts and circumstances known to
the trial judge” show that “there was or should have been a good faith doubt
about the defendant’s ability to understand the nature and consequences of the
waiver, or to participate intelligently in the proceedings and to make a reasoned
choice among the alternatives presented,” in which case the trial court has a
duty to conduct a hearing to determine competency. Cornell, 179 Ariz. at 322–
23 (emphasis added) (citations and quotation marks omitted); see also State v.
Johnson, 147 Ariz. 395, 398 (1985) (“[A] court is required to order a mental
examination only if reasonable grounds exist to question the defendant’s
mental condition.”) (citation omitted).
The trial court has broad discretion to determine if a good-faith doubt
exists to warrant a competency hearing. State v. Salazar, 128 Ariz. 461, 462
(1981).
“Such a doubt arises when there is substantial evidence of
incompetence.” Cornell, 179 Ariz. at 323 (emphasis added) (citations and
quotation marks omitted).
Evidence of incompetence may include the
37
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defendant’s background, history of irrational behavior, and trial demeanor; the
trial court’s personal observations of the defendant; and medical opinion. State
v. Glassel, 211 Ariz. 33, 44–45 (2005); Cornell, 179 Ariz. at 323; Johnson, 147
Ariz. at 398.
Davis was presumptively competent and nothing in the record overcame
that presumption, a point with which Davis agrees (O.B., at 17). Neither party
at any time requested a competency hearing and the trial court did not order
one sua sponte. (See supra, Section II(B).) Davis was occasionally disruptive
or emotional (e.g., banging on walls in reaction to a guilty verdict, complaining
of unfairness, expressing frustration, being argumentative), but his overall
courtroom conduct and testimony were mostly unremarkable; and neither the
court’s observations of Davis nor the record in general suggests otherwise.
(See supra, Statement of the Case; Section II(B).)
Moreover, Davis’s claim of having been diagnosed with a mental illness
or disorder—“[b]ipolar, schizophrenic, or something else”—did not give rise to
a good faith doubt about Davis’s competency. Such a diagnosis, even if true,
was simply one of many factors regarding competency; it hardly constituted
substantial evidence of incompetence without corroboration. Cf. Indiana v.
Edwards, 554 U.S. 164, 175 (2008) (“Mental illness itself is not a unitary
concept. It varies in degree. It can vary over time. It interferes with an
38
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individual’s functioning at different times in different ways.”); cf. Ariz. R.
Crim. P. 11.1(b) (“A defendant is not incompetent to stand trial merely because
the defendant has a mental illness, defect, or disability.”).
Absent substantial evidence of incompetence, the court would not have
questioned Davis’s competency, let alone base its ruling on that ground. See
State v. Moody, 208 Ariz. 424, 443, ¶ 49 (2004) (“We presume that a court is
aware of the relevant law and applies it correctly in arriving at its ruling.”)
(citation omitted). 6 Because Davis’s responses during the colloquy, and the
sentencing proceedings overall, demonstrated Davis’s lack of actual
understanding, and in turn an invalid waiver, denying Davis’s request for selfrepresentation was proper. The trial court did not err in ruling as it did.
D.
EVEN IF THE TRIAL COURT ERRED IN DENYING DAVIS’S REQUEST,
THE ERROR WAS HARMLESS.
Assuming the trial court’s denial of Davis’s self-representation request
was erroneous and, as a result, erroneously deprived Davis of his right of selfrepresentation, the court’s ruling was nevertheless harmless under these
specific facts.
See Sullivan v. Louisiana, 508 U.S. 275, 278–79 (1993)
_______________
6
Davis’s reliance on Indiana v. Edwards, 554 U.S. 164 (2008), Odle v.
Woodford, 238 F.3d 1084 (9th Cir. 2001), and State v. Gunches, 225 Ariz. 22
(2010), is unavailing as those cases concern competency and are thus
inapposite. (O.B., at 17–19.)
39
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(explaining that most constitutional errors are amenable to harmless-error
analysis).
The erroneous deprivation of a person’s right of self-representation is
generally structural error. Ring, 204 Ariz. at 552; see also McKaskle v.
Wiggins, 465 U.S. 168, 177 (1984) (“Since the right of self-representation is a
right that when exercised usually increases the likelihood of a trial outcome
unfavorable to the defendant, its denial is not amenable to ‘harmless error’
analysis. The right is either respected or denied; its deprivation cannot be
harmless.”).
However, in the Ninth Circuit, such an error is subject to harmless error
analysis if—as here—the error occurred at sentencing and the guilt-orinnocence determination was isolated from any harm. See United States v.
Spangle, 626 F.3d 488, 494 n.2 (9th Cir. 2010) (acknowledging that the
harmless error analysis applies when a defendant is improperly denied the right
to represent himself at sentencing) (citation omitted); United States v. Maness
566 F.2d 894, 897 (9th Cir. 2009) (analyzing for harmless error and concluding
that the erroneous denial of a self-representation motion at the sentencing
phase was “not intrinsically harmful to the entire proceedings”) (citation
omitted); United States v. Walters, 309 F.3d 589, 593 (9th Cir. 2002)
(reasoning that an erroneous denial of counsel at the sentencing phase “did not
40
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affect the conduct of the trial from beginning to end” and “did not affect the
framework within which the trial proceeded,” and was thus harmless)
(quotation marks omitted); but see Weaver v. Massachusetts, 137 S.Ct. 1899,
1908 (2017) (defining three types of structural errors, including an error where
“the right at issue is not designed to protect the defendant from erroneous
conviction but instead protects some other interest” (e.g., the right to conduct
one’s own defense)) (citation omitted).
Although it does not appear that Arizona courts have addressed this
exact issue, their reasoning in analogous circumstances are comparable to the
Ninth Circuit’s reasoning favoring harmless error analysis in the sentencing
context. One example is State v. Ring. Ring challenged whether the lower
court’s failure to submit his capital sentencing factors to a jury violated his
constitutional right to a jury trial. Ring, 204 Ariz. at 543, ¶ 3. The United
States Supreme Court agreed with Ring, concluding that only a jury may find
“an aggravating circumstance necessary for imposition of the death penalty.”
Ring v. Arizona, 536 U.S. 584, 609 (2002). On remand, the Arizona Supreme
Court questioned whether the violation of Ring’s right to have a jury decide his
sentencing factors should be analyzed for structural error or harmless error.
Ring, 204 Ariz. at 552–53, ¶¶ 44, 47. It concluded that the sentencing error
was not structural and thus reviewable for harmless error. Id. at 555, ¶ 53.
41
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In reaching that conclusion, Ring reasoned that the sentencing judge’s
error in imposing the death sentence “did not render the entire trial
fundamentally unfair” because (1) an impartial jury decided Ring’s guilt using
the correct standard of proof; (2) Ring had legal representation available during
all phases of prosecution; and (3) the sentencing judge was impartial in its
decision-making and also used the correct standard of proof, beyond a
reasonable doubt. Id. at 554, ¶ 50 (citing Neder v. United States, 527 U.S. 1, 9
(1999)) (footnote omitted); cf. State v. Bush, 244 Ariz. 575, ¶ 67 (2018)
(concluding that the trial court’s failure to instruct the jury that the defendant
was not eligible for release if sentenced to life imprisonment was not structural
error because such an error only occurs during a capital sentencing proceeding,
and it neither deprives the defendant of basic protections nor infects the trial
from beginning to end).
Applying Ring’s logic, as well of that of the Ninth Circuit, to the unique
circumstances of Davis’s case, the result is the same: any error here should be
analyzed for harmless error.
The trial court’s ruling denying Davis self-
representation at sentencing did not infect Davis’s trial from beginning to end
with fundamental unfairness; any harm inflicted was limited to the sentencing
proceedings; and Davis had legal representation at all stages of prosecution,
including throughout the trial (see supra, Sections I(B)–(C)).
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Moreover, any potential harm to Davis is amenable to harmless error
analysis because it is quantifiable sans speculation, thereby distinguishing it
from most structural errors. See Weaver, 137 S. Ct. at 1908 (defining some
structural errors as those that “are simply too hard to measure,” or where
proving harmlessness would be futile); State v. Anderson, 197 Ariz. 314, 323–
24 (2000) (“[Trial errors] are susceptible to a harmless error analysis because
they may be quantitatively assessed in the context of … other evidence. But
[structural] errors … affect the entire conduct of the trial from beginning to
end, damage the framework within which the trial proceeds, and are therefore
not subject to harmless error analysis.”) (citation and quotation marks omitted).
Davis’s classification as a category three repetitive offender was
irrefutable: Davis admitted to one historical prior at trial (the 2012 felonies
combined); and Davis’s probation officer and “pen pack” established the
second historical prior (armed robbery). (Supra, Statement of the Case.) See
A.R.S. § 13–703(C) (classifying the defendant as a category three repetitive
offender if he has two historical prior felony convictions). The court also
imposed the presumptive sentence (11.25 years), which was the only sentence
Davis could have received under these circumstances because no mitigation
evidence was presented and Davis alluded to none, and the jury found no
aggravators. (Supra, Statement of the Case; see also Section II(B).) See
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A.R.S. §§ 13–701(C) (permitting a lesser or greater sentence than the
presumptive only if aggravation or mitigation factors are found); 13–703(J)
(defining 11.25 years as the presumptive sentence for a class three felony
committed by a category three offender). As a matter of law, Davis’s sentence
was the presumptive.
Furthermore, on this record, it can reasonably be determined what Davis
would have said if he represented himself, thereby eliminating any speculation
about what Davis would have said on his behalf to mitigate his sentence. Cf.
State v. Mann, 188 Ariz. 220, 230 (1997) (finding the defendant’s absence at
sentencing structural error because “one cannot know what a defendant might
have said” about testimony given at that proceeding). Davis’s “max it out”
comment demonstrates that Davis was indifferent about his sentence. (R.T.
7/17/17, at 28.) Davis did not advocate for a lesser sentence when he was
given a chance to speak at the mitigation/sentencing hearing. (R.T. 8/18/17, at
7–11, 14–15.) Instead, Davis claimed innocence and asked for an evidentiary
hearing to prove his innocence, which demonstrated that Davis was concerned
solely with proving his innocence, not mitigating his sentence. (See id.) His
complaints and allegations made during the sentencing proceedings about the
defense attorney, police lies, and the unproven knowledge-element further
demonstrate that Davis only desired to dispute his guilt. (See id.; R.T. 7/17/17,
44
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at 5–16, 25, 27–28.)
Consequently, had Davis represented himself at
sentencing, it is probable that Davis would have only argued his innocence,
advocated for an evidentiary hearing, or blamed his trial attorney’s
incompetence; none of those arguments would have mitigated Davis’s
sentence. Therefore, Davis’s sentence would have been no different had Davis
represented himself at sentencing.
Any alleged error was thus harmless. Should the court disagree with the
State’s position, then Davis is only entitled to resentencing on his theft-ofmeans conviction; the error does not jeopardize the conviction itself (or
Davis’s probation violation7). Cf. State v. Montano, 206 Ariz. 296, 301, ¶ 27
(2003) (Jones, J., concurring) (recommending a remand for resentencing if the
court committed structural error by not having the jury determine all questions
pertaining to sentencing); State v. Harrison, 195 Ariz. 1, 5, ¶ 17 (1999)
(affirming lower court’s remand for resentencing when the trial court
committed structural error while sentencing the defendant); People v.
Wardlaw, 849 N.E.2d 258, 260 (N.Y. Ct. App. 2006) (acknowledging that,
where the defendant’s right to counsel was violated at a suppression hearing,
_______________
7
Davis’s sentence for his probation violation would not be affected by any
remand for resentencing because that conviction is not at issue in this appeal.
(Supra, note 1.)
45
A-81
and if the error did not affect the trial, the appropriate relief was a new
suppression hearing, not a reversal of the conviction) (citations omitted).
.
.
.
.
.
.
.
.
.
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CONCLUSION
Based on the foregoing authorities and arguments, the State of Arizona
respectfully requests that this Court affirm the trial court’s judgment and
sentence.
Respectfully submitted,
Mark Brnovich
Attorney General
Joseph T. Maziarz
Chief Counsel
/s/
Gracynthia Claw
Assistant Attorney General
Attorneys for Appellee
7173103
47
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IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
No. 1 CA-CR 17-0529
Appellee,
Maricopa County Superior Court
Nos. CR2012-152527-001 DT
and CR2016-135082-001 DT
v.
TORRENCE E. DAVIS,
Appellant.
APPELLANT’S REPLY BRIEF
MARICOPA COUNTY PUBLIC DEFENDER
Jesse Finn Turner
State Bar No. 024011
Deputy Public Defender
620 West Jackson, Suite 4015
Phoenix, Arizona 85003
Telephone (602) 506-7711
ACE@mail.maricopa.gov
Attorney for Appellant
A-84
TABLE OF CONTENTS
Page
ISSUES PRESENTED FOR REVIEW.................................................................. 1
ISSUE 1 ..................................................................................................................... 2
Did Torrence Davis make an unequivocal demand to represent
himself on February 16, 2017?
I.
The Cases Cited By Appellee Support A Finding That The
Statement From Mr. Davis Is Unequivocal. ..................................... 3
ISSUE 2 ..................................................................................................................... 7
Mr. Davis did not ask the trial court to rule on his request after
February 16, 2017. Did he abandon his motion?
I.
II.
The Circumstances of the Case of Mr. Davis and Those In
McLemore Are Not as Similar As Appellee Contends. .................... 8
Other Circumstances Bear On the Totality That The Motion
Was not Abandoned. ........................................................................... 9
CONCLUSION....................................................................................................... 12
i
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TABLE OF CITATIONS
Page
CASES
United States Supreme Court Case
Faretta v. California, 422 U.S. 806 (1975) ...............................................1, 7, 10, 12
Federal Circuit Cases
Adams v. Carroll, 875 F.2d 1441 (9th Cir. 1989) ....................................................... 5
Jackson v. Ylst, 921 F.2d 882 (9th Cir. 1990) ............................................................. 5
Meeks v. Craven, 482 F.2d 465 (9th Cir. 1973)...................................................... 3, 4
Arizona Supreme Court Cases
State v. Dann, 220 Ariz. 351 (2009) .......................................................................... 1
State v. Henry, 189 Ariz. 542 (1997) ..................................................................... 4, 5
State v. Torres, 208 Ariz. 340 (2004) ........................................................................ 3
Arizona Court Of Appeals Cases
State v. Hanson, 138 Ariz. 296 (App. 1983).............................................................. 3
State v. McLemore, 230 Ariz. 571 (App. 2012).............................1, 3, 7, 8, 9, 10, 11
ii
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ISSUES PRESENTED FOR REVIEW
1. “The federal and state constitutions (of Arizona) guarantee [a
defendant] the right to waive counsel and to represent himself.”
State v. Dann, 220 Ariz. 351, 359 (2009). A defendant must
unequivocally make a request to represent himself if it is to be
considered. Faretta v. California, 422 U.S. 806, 819 (1975). When
Mr. Davis made such a request on February 16, 2017, was the
request unequivocal?
2. If a defendant makes a motion to represent himself, and that
motion is not considered by the court, a failure of the defendant
to remind the court of the motion may be considered an
abandonment of the motion. State v. McLemore, 230 Ariz. 571,
580 (App. 2012). Whether or not a motion has been abandoned
is determined by the totality of the circumstances. (Id.)
Mr. Davis’ motion of February 16, 2017 was not ruled on by the
Court, nor brought up at subsequent hearings by Mr. Davis. Did
he abandon the motion?
1
A-87
ISSUE 1
Did Torrence Davis make an unequivocal demand to
represent himself on February 16, 2017?
Argument
In Sum:
• On February 16, 2017, while addressing the trial court, Mr. Davis stated “Well
if he doesn’t want to, then I’m willing to put in the motions to go pro per
myself, if I—” (Reporter’s Transcript “R.T.” 2/16/17 at 5.) At that point the
court interrupted him to tell him he could go pro per if he wanted. (Id.)
Mr. Davis responded with “I do. So if that’s the case, I have to file, I have to
go pro per, then that’s what I want to do.” (Id. at 5-6.)
• Mr. Davis’ attorney interjected and asked to address an issue prior to the court
ruling on the request of Mr. Davis. (Id. at 6.)
• The Court never addressed the motion of Mr. Davis. (Id. at 6-9.)
• This failure by the Court was structural error.
o Mr. Davis made a clear and unequivocal request that all parties
understood required a ruling based on the comments from his attorney.
2
A-88
o Such action (or lack thereof) resulted in an erroneous failure to accord
Mr. Davis his properly asserted right to represent himself. (McLemore
at 575, ⁋15, citing State v. Torres, 208 Ariz. 340, 343-44, ⁋11 (2004)).
Appellee’s arguments have not changed these basic facts.
I.
The Cases Cited By Appellee Support A Finding That The
Statement From Mr. Davis Is Unequivocal.
“An unequivocal demand to proceed pro se should be, at the very least,
sufficiently clear that if it is granted the defendant should not be able to turn about
and urge that he was improperly denied counsel.” State v. Hanson, 138 Ariz. 296,
300 (App. 1983). Such a definition applies to a clear statement without conditions
such as “That’s what I want to do.”
A case cited by Hanson is Meeks v. Craven, 482 F.2d 465 (9th Cir. 1973).
While helping to define what an unequivocal request would be, it is helpful to
juxtapose what was not unequivocal there and the statement of Mr. Davis. In Meeks
the court took note of the fact that but for one motion, the defendant was ok with his
attorney proceeding forward with the case. (Id. at 467.) That is not what happened
here, where Mr. Davis had multiple issues with the way his case was litigated and
put no such qualifiers on his request. (R.T. 2/16/17 at 6-7.)
3
A-89
In addition, rather than the clear statement “That is what I want to do” that
was made by Mr. Davis, the defendant in Meeks made his request by saying “I think
I will.” (Meeks at 467.) “An ‘unequivocal’ demand to proceed pro se should be, at
the very least, sufficiently clear that if it is granted the defendant should not be able
to turn about and urge that he was improperly denied counsel. ‘I think I will’ hardly
meets the constitutional criteria for waiver of counsel.” (Id.) Mr. Davis made clear
he wanted to represent himself, and rather than equivocating with qualifiers and
hesitant words like “I think,” he clearly stated “That is what I want to do.”
One case cited by appellee is State v. Henry, 189 Ariz. 542 (1997). First, the
motion in that case was both considered and denied, the opposite of the
circumstances here. (Id. at 546.) Second, the motion was immediately preceded by
and included argument regarding a motion to change counsel for conflict, something
that was not present or argued about by Mr. Davis. (Id. at 546-548.) In addition, the
defendant in Henry clearly put preconditions on his request that the judge had no
duty or interest in addressing. (Id. at 547-548.) No such preconditions or arguments
were present in the request of Mr. Davis. While Mr. Davis did reference motions he
wanted to file, he did not ask for the court’s opinion on them or other considerations
as a result of his request. Rather than an unequivocal request, the Henry opinion
4
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termed the defendant’s request “negotiation” and “thinking out loud.” (Id. at 548.)
Neither term applies here.
Another case cited by appellee is Jackson v. Ylst, 921 F.2d 882 (9th Cir. 1990),
“The trial court properly may deny a request for self-representation that is a
‘momentary caprice or the result of thinking out loud.’” (Id. at 888, citing Adams v.
Carroll, 875 F.2d 1441, 1445 (9th Cir. 1989). In Jackson, the Court found that the
defendant’s request was this type of momentary caprice given that it came
immediately after his request for a new attorney was denied, and was accompanied
by complaints about that denial. (Id. at 888-889.) The Court found that his statements
were not a request for self-representation, rather “it is quite clear that he wanted to
be represented by a different attorney…” (Id. at 889.) Again, no such discrepancy or
alternative intent is present here. Mr. Davis clearly said “I have to go pro per, that is
what I want to do.” He made no qualifiers about his attorney or anything else and
gave no alternative intent. It was therefore not the ‘momentary caprice’ mentioned
in Jackson and argued by Appellee.
Mr. Davis’ post-conviction request for self-representation should also be
included when considering whether or not it was a “momentary caprice.” Although
untimely, Mr. Davis made a 2nd request for self-representation at sentencing that was
different than his request on February 16, 2017. (R.T. 7/17/17 at 5.) In this latter
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request Mr. Davis did reference his earlier request, but also made complaints about
counsel concerning issues that post-dated that request. (Id. at 7.) He again requested
self-representation for the purpose of filing specific motions, without any qualifiers
or equivocal language. (Id. at 13, 16.) His intent was clear on both occasions and
showed his desire was neither momentary nor “thinking out loud.”
In this case, Mr. Davis expressed an interest in representing himself, the trial
court explained he had the right to if he wanted, to which Mr. Davis replied “I
do…that’s what I want to do.” He put no qualifiers on his request, made no
preconditions, did not ask for a different attorney, and asked for no predictions from
the trial court. His request was therefore unequivocal and the court had a duty to
evaluate it as such.
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ISSUE 2
Mr. Davis did not ask the trial court to rule on his
request after February 16, 2017. Did he abandon his
motion?
Standard of Review
When a Faretta motion is properly made but the superior court fails to rule on
it and it is not thereafter urged by the defendant, the analysis of whether or not such
motion is abandoned is determined by the totality of the circumstances. (McLemore
at 582, ⁋35.) “Informative factors include but are not limited to a consideration of
the defendant’s opportunities to remind the court of a pending motion, defense
counsel’s awareness of the motion, any affirmative conduct by the defendant that
would run counter to a desire for self-representation, whether the defendant waited
until after a conviction to complain about the court’s failure to rule on his or her
motion (thus indicating the defendant was gaming the system), and the defendant’s
experience in the criminal justice system and with waiving counsel.” (Id.) “At some
point, the delay is long enough that it could be effectively deemed an impermissible
denial of the motion resulting in a per se abuse of discretion and reversible error.”
(Id. at 582, ⁋37.)
7
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Argument
I.
The Circumstances of the Case of Mr. Davis and Those In McLemore
Are Not as Similar As Appellee Contends.
Appellee argues that McLemore, in which the Court of Appeals found that a
motion for self-representation was abandoned, is analogous to Mr. Davis and
supports a finding that this request was similarly abandoned. (A.B. at 15.) This
argument disregards significant differences between Mr. Davis and the McLemore
case.
One of the factors to be considered in the totality of the circumstances analysis
is whether or not defense counsel was aware of the motion. This is a distinguishing
factor between the two cases, and established beyond all doubt. “There is no
indication in the record whether McLemore’s appointed counsel … received or ever
knew about the motion.” (McLemore at 575, ⁋11.) With Mr. Davis, the request was
made in front of and with full knowledge of his attorney. In fact, the court’s
consideration was interrupted by defense counsel, who acknowledged a ruling would
be needed after he was done speaking. (R.T. 2/16/17 at 7.)
In this same vein, although not mentioned specifically in the circumstances to
be considered, one should consider the knowledge of the trial court. In both cases
three different judges wound up working in the case after the motion was made.
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(McLemore at 575, Electronic Instrument of Record “I” 48, 70.) As noted in the
original brief, the request was not preserved in the minute entry of February 16,
2017. (I 48.) In McLemore, the motion was available for any court to look at if they
chose to examine the record. (Id. at 574-575, ⁋11.) The opposite was the case here.
The issue most relied upon by both the McLemore opinion and Appellee is the
time between hearings and number of opportunities for the defendant to remind the
court of his motion. (Id. at 582, A.B. at 14-15.) Here too there are two significant
distinctions. The first is the time between the hearings. Mr. McLemore had a hearing
set one month after his motion was filed. (Id. at 582, ¶38.) Mr. Davis was not in court
again for 3 months, and it should be noted, at a time when the court and defense
counsel were aware of the request. The second distinction is that Mr. McLemore
remained silent even during a hearing to determine counsel. (Id. at 575, ¶13.) Once
again, no such hearing was held in the case of Mr. Davis.
II.
Other Circumstances Bear On the Totality That The Motion Was not
Abandoned.
Appellee argues that Mr. Davis intended to abandon his motion given that he
voiced many complaints and objections regarding other topics, particularly
discovery and evidentiary issues, which appellee argues was ample opportunity to
reassert his motion. (Answering Brief “A.B.” at 14.) In fact, this conduct is one of
9
A-95
the factors identified by McLemore that would tend to show the motion was not
abandoned. McLemore identified the factor of whether or not there is “any
affirmative conduct by the defendant that would run counter to a desire for selfrepresentation.” (Id. at 582.) Rather than expressing such a desire, Mr. Davis appears
to have expressed the opposite on a number of occasions. These would include
lengthy discussions with the Court and the State regarding a number of evidentiary
issues at the settlement conference referenced by Appellee. (A.B. at 14, R.T. 5/3/17
at 12-23.) One could almost see such conduct as Mr. Davis trying to represent
himself regardless of the trial court’s failure to rule on his motion.
The last paragraph of the McLemore opinion should also be considered when
evaluating the case of Mr. Davis. “Despite our conclusion, we remind and encourage
trial courts to promptly rule on defendants’ motions to represent themselves to avoid
the defendant incorrectly assuming the motion has somehow been denied when the
defendant wants to pursue the right of self-representation. Moreover, such a delay
places the defendant in a difficult position because the defendant might feel the need
to work with appointed counsel but that cooperation might be deemed to be an
abandonment of the Faretta motion.” (Id. at 583, ¶39.) One might consider this
paragraph to be the McLemore opinion conceding to common sense and
circumstances alternate to what was found in that case. When the specific
10
A-96
circumstances of Mr. McLemore and Mr. Davis are compared, it is clear Mr. Davis
falls into this concession much more so than the abandonment that appellee argues.
In McLemore, there was no evidence that either the court or either attorney was ever
made aware of the motion, the motion was not mentioned in court the next month
nor even when there was a hearing to determine counsel, no complaints were made
about the defense counsel, and the issue was not even raised after conviction. Here,
the court and defense counsel were aware of the motion and it was ignored.
Mr. Davis was not in court again until three months later. Mr. Davis continued to
complain about discovery and other issues, particularly at his settlement conference,
that were argued almost as if he was representing himself. Mr. Davis complained
about his counsel and made a second request to represent himself after trial. Both a
totality of the circumstances and common sense would what make it likely that
Mr. Davis believed or had reason to believe that his request had been denied or
otherwise disposed of and he had to manage his best accordingly. All of his actions
following February 16, 2017 are consistent therein.
11
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CONCLUSION
Mr. Davis once again submits that his Faretta rights for self-representation
were violated and a remand is therefore warranted.
Respectfully submitted,
MARICOPA COUNTY PUBLIC DEFENDER
By
/s/
Jesse Finn Turner
Deputy Public Defender
Attorney for Appellant
JFTLT111918P
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Supreme Court
STATE OF ARIZONA
ROBERT M. BRUTINEL
Chief Justice
ARIZONA STATE COURTS BUILDING
1501 WEST WASHINGTON STREET, SUITE 402
PHOENIX, ARIZONA 85007-3231
TELEPHONE: (602) 452-3396
JANET JOHNSON
Clerk of the Court
July 30, 2019
RE:
STATE OF ARIZONA v TORRENCE E DAVIS
Arizona Supreme Court No. CR-19-0060-PR
Court of Appeals, Division One No. 1 CA-CR 17-0529
Maricopa County Superior Court No. CR2016-135082-001
Maricopa County Superior Court No. CR2012-152527-001
GREETINGS:
The following action was taken by the Supreme Court of the State
of Arizona on July 30, 2019, in regard to the above-referenced
cause:
ORDERED: Petition for Review = DENIED.
Janet Johnson, Clerk
TO:
Mark Brnovich
Joseph T Maziarz
Gracynthia Claw
Jesse Finn Turner
Torrence E Davis, ADOC 167617, Arizona State Prison, Yuma –
Cibola Unit
Amy M Wood
jd
A-119
IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
IN AND FOR THE COUNTY OF MARICOPA
STATE OF ARIZONA,
)
Plaintiff,
)
v.
)
1 CA-CR 17-0529
TORRENCE E DAVIS,
)
CR2012-152527-001
)
CR2016-135082-001
Defendant.
______________________________)
Phoenix, Arizona
February 16, 2017
9:01 a.m.
BEFORE:
THE HONORABLE JUSTIN BERESKY
REPORTER'S TRANSCRIPT OF PROCEEDINGS
FINAL TRIAL MANAGEMENT CONFERENCE
(Original)
Scott A. Kindle, RPR
Certified Reporter No. 50711
SUPERIOR COURT
Phoenix, Arizona
A-120
2
A P P E A R A N C E S
For the Plaintiff:
MATTHEW ELIAS, Deputy County Attorney
For the Defendant:
NICHOLAS DEHNER
SUPERIOR COURT
Phoenix, Arizona
A-121
3
1
Phoenix, Arizona
2
February 16, 2017
3
THE COURT:
4
Davis, CR2012-152527, CR2016-135082.
5
MR. ELIAS:
Good morning.
MR. DEHNER:
Good morning, Your Honor.
6
State of Arizona versus Torrence
Matthew Elias for
the State.
7
8
Nicholas Dehner on behalf of Mr. Davis, who is present in
9
custody, standing in the front of the jury box.
10
11
THE COURT:
Sir, can you tell me your name
and date of birth, please.
12
THE DEFENDANT:
13
THE COURT:
14
15
16
Torrence Davis.
All right.
6/10/83.
You can have a seat
if you like.
Where are we on this case?
MR. DEHNER:
Judge, prior to coming up to the
17
podium, I was ready to announce we're ready for trial.
18
There's only a couple witness interviews left.
19
to finish those off next week, so we were ready to send
20
this to the Master Calendar.
21
client this morning, he indicates to me he's not ready to
22
go to trial, so --
We're going
However, speaking with my
23
THE COURT:
Are you ready to go to trial?
24
MR. DEHNER:
I will be ready by the time we
25
come to next -- to the Master Calendar for the 23rd.
I
SUPERIOR COURT
Phoenix, Arizona
A-122
4
1
anticipate I will have the interviews finished next week.
2
Assuming we go to the Master Calendar on the 23rd, we both
3
anticipate probably starting a jury on Monday, so that will
4
give me ample time to finish what I need to do, but --
5
THE COURT:
All right.
6
MR. DEHNER:
-- at this time my client
7
indicates to me he's not ready to go to trial.
8
9
THE COURT:
Why aren't you ready to go to
trial?
10
THE DEFENDANT:
Because I have some motions I
11
want to be turned in.
12
like body cams, dash cams, that were never given.
I have some things I asked to be,
13
THE COURT:
14
THE DEFENDANT:
15
case.
16
got rid of them.
Okay.
And I know he came late on my
So the first two lawyers, I didn't fire.
The State
And I've been asking for things --
17
THE COURT:
18
THE DEFENDANT:
The State got rid of them?
Well, the first one, I guess
19
because of the arraignment, or whatever, they got rid of
20
him.
21
conflict of interest.
Then the other lady, she quit on her own saying
22
So I've been asking for the body cams, the dash
23
cams.
24
officers.
25
And then I got him.
I never got -- I got the last dash cam out of 15
So that happened.
I asked for a special action on my violation of my
SUPERIOR COURT
Phoenix, Arizona
A-123
5
1
Miranda rights, which were never given.
2
THE COURT:
Well, he can only file motions
3
that he believes that there's a valid basis for.
4
not in charge of strategy.
5
motions get filed.
6
You're
You're not in charge of what
He is.
THE DEFENDANT:
I understand that.
But if I
7
don't file these motions now, even if they're denied, if I
8
lose in trial, I have no appeal basis on them.
9
this for a fact.
10
now before I go to trial.
11
THE COURT:
12
And I know
That's why I'm ready to file the motions
Well, he's the one that files the
motions, not you.
13
THE DEFENDANT:
Well, if he doesn't want to,
14
then I'm willing to put in the motions to go pro per myself
15
if I --
16
THE COURT:
17
THE DEFENDANT:
18
19
Okay.
I'm not going to sit here and
be railroaded no more.
THE COURT:
Well, you can go pro per if you
20
want to, but at this point, your attorney is the one that
21
decides strategy.
22
what motions get filed and what motions don't get filed.
23
He's not going to file a motion that he doesn't think
24
there's a legal basis for.
25
Your attorney is the one that decides
THE DEFENDANT:
I do.
So if that's the case,
SUPERIOR COURT
Phoenix, Arizona
A-124
6
1
I have to file, I have to go pro per, then that's what I
2
want to do.
3
MR. DEHNER:
And, Your Honor, before the
4
Court makes a ruling, there is one issue I was speaking
5
with Mr. Elias this morning potentially one of the
6
witnesses that we were going to be interviewing, the State
7
is no longer intending on calling them, so that might put a
8
wrench in my plans.
I might have to locate him, find him,
9
and interview him.
So a brief continuance, I guess, at
10
this point I'm not objecting to if the State doesn't have
11
an issue with that, and obviously Mr. Davis is not ready to
12
go next week, so I don't know, maybe two weeks or something
13
like that.
14
THE COURT:
15
well, is it a civilian witness or --
16
MR. DEHNER:
Well, what witness do you --
It is, Your Honor.
This is a
17
theft of means case and actually somebody that was riding
18
in the car with him that day.
19
THE COURT:
Okay.
20
MR. DEHNER:
So I believe it's going to be
21
22
23
material to my case.
MR. ELIAS:
The State hasn't had any contact
with that individual.
24
THE DEFENDANT:
25
THE COURT:
Excuse me.
Yes, sir?
SUPERIOR COURT
Phoenix, Arizona
A-125
7
1
THE DEFENDANT:
Is there any way we can get
2
these dash cams or these body cams that's been asked for
3
since the beginning?
4
he laughed at it like it's a joke.
The last time they asked the State,
5
THE COURT:
Sir, is there a dash cam?
6
MR. ELIAS:
After the last hearing when
7
Mr. Davis brought up these concerns, I followed up with the
8
case agent, was informed that there was no additional video
9
from the incident.
10
already been turned over to the State and had already been
11
disclosed to the defense.
12
THE COURT:
13
THE DEFENDANT:
14
interrogation video at Glendale precinct?
15
there's no interrogation -- no video of that either, which
16
I know for a fact is a lie.
17
There's a camera up there, so I know he's lying about that.
18
So they're being coy about something here.
Everything that the police had had
Okay.
So there is no dash cam.
Okay.
What about the
I was in the room myself.
19
(Counsel confer.)
20
THE DEFENDANT:
Your Honor, Mr. Beresky, all
21
I want to do is a fair shake at trial.
22
saying, and I'm not getting it.
23
I need the video and the audio.
24
25
MR. DEHNER:
that issue.
They're saying
That's all I'm
They gave me an audio, but
Judge, we were just speaking on
I've received the audio recording that my
SUPERIOR COURT
Phoenix, Arizona
A-126
8
1
client was interviewed by the police.
2
was ever provided, and I don't know if it even exists if
3
there was video taken of that, so -- but I do have his
4
recorded interview that happened after he was arrested,
5
Your Honor.
I don't believe I
6
THE COURT:
Okay.
7
MR. DEHNER:
At this point, I don't know if
8
there's any other evidence out there that I don't have that
9
the State has not disclosed.
10
THE COURT:
Well, I'll ask the State to
11
follow up with whoever did the interrogation to make sure
12
if there is a video or not.
13
to be disclosed.
If there is a video, it needs
14
MR. DEHNER:
Absolutely.
15
MR. ELIAS:
Yes, Your Honor.
16
THE COURT:
There may have been a camera, but
17
that doesn't necessarily mean there's a video.
18
they're dummy cameras.
19
THE DEFENDANT:
20
say this ain't my first rodeo.
21
in Glendale.
22
running video.
Sometimes
Your Honor, I mean I hate to
I've been arrested before
I know for a fact that interrogation room has
That's what I'm saying.
23
THE COURT:
24
THE DEFENDANT:
25
THE COURT:
Okay.
I believe you.
Yes.
I'll continue the trial one week,
SUPERIOR COURT
Phoenix, Arizona
A-127
9
1
reset it to March 2nd.
2
3
THE BAILIFF:
Are we doing an FTMC or just
the trial?
4
THE COURT:
Just the trial.
5
MR. DEHNER:
That's fine, Your Honor.
6
THE BAILIFF:
March 2nd.
7
THE COURT:
8
9
10
Master Calendar.
March 2nd at 8:00 a.m. before the
All right.
MR. DEHNER:
And this will serve as the final
TMC, then; correct?
11
THE COURT:
Right.
12
MR. DEHNER:
Thank you.
13
THE COURT:
Thank you.
14
(Whereupon the matter concluded at 9:07 a.m.)
15
16
17
18
19
20
21
22
23
24
25
SUPERIOR COURT
Phoenix, Arizona
A-128
10
C E R T I F I C A T E
I, Scott A. Kindle, do hereby certify that the
foregoing pages constitute a true and accurate transcript
of my stenographic notes, taken at said time and place, all
done to the best of my skill and ability.
I CERTIFY that I am in no way related to any of
the parties hereto nor am I in any way interested in the
outcome thereof.
I CERTIFY that I have complied with the ethical
obligations set forth in ACJA 7-206(F)(3) and ACJA 7-206
J(1)(g)(1) and (2).
DATED this 2nd day of January, 2018.
/s/ Scott A. Kindle
Scott A. Kindle, RPR
Certified Reporter No. 50711
A-129
Michael K. Jeanes, Clerk of Court
*** Electronically Filed ***
03/21/2017 8:00 AM
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2016-135082-001 DT
02/16/2017
CLERK OF THE COURT
V. Burton/E. Canas
Deputy
COMMISSIONER JUSTIN BERESKY
STATE OF ARIZONA
MATTHEW H ELIAS
v.
TORRENCE E DAVIS (001)
NICHOLAS JAMES DEHNER
TRIAL CONTINUED/RESET
9:01 a.m. This is the time set for Final Trial Management Conference.
Courtroom CCB 901
State's Attorney:
Defendant's Attorney:
Defendant:
Mathew H. Elias
Nicholas James Dehner
Present
Court Reporter, Scott Kindle, is present.
A record of the proceedings is also made digitally.
The Court and parties discuss the status of the case.
Counsel for the State advises the Defense that all discovery has been provided but will
review to determine if an interrogation video exists.
IT IS ORDERED resetting the Firm Trial Date set on 02/23/2017 to 03/02/2017 at 8:00
a.m. before the Master Calendar Assignment Judge in Courtroom 5B in the South Court Tower.
Docket Code 064
Form R176A
Page 1
A-130
SUPERIOR COURT OF ARIZONA
MARICOPA COUNTY
CR2016-135082-001 DT
02/16/2017
All subpoenaed witnesses are to report to Courtroom 5B in the South Court Tower for trial and
will be directed to the trial court from there.
IT IS FURTHER ORDERED affirming prior custody orders.
LAST DAY REMAINS: 03/26/2017.
9:07 a.m. Matter concludes.
Docket Code 064
Form R176A
Page 2
A-131
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.