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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Douglas v. State (08/14/2009) sp-6399
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| TY S. DOUGLAS, | ) |
| ) Supreme Court No. S- 12857 | |
| Petitioner, | ) |
| ) Court of Appeals No. A-8997 | |
| v. | ) Superior Court No. 1KE-02-1684 CR |
| ) | |
| STATE OF ALASKA, | ) O P I N I O N |
| ) | |
| Respondent. | ) No. 6399 - August 14, 2009 |
| ) | |
Petition for Hearing from the Court of
Appeals of the State of Alaska, on Appeal
from the Superior Court, First Judicial
District at Ketchikan, Michael A. Thompson,
Judge.
Appearances: David D. Reineke and Alexandra
Foote-Jones, Assistant Public Defenders, and
Quinlan Steiner, Public Defender, Anchorage,
for Petitioner. Tamara E. de Lucia,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Talis J. Colberg, Attorney General, Juneau,
for Respondent.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Carpeneti, and Winfree, Justices.
EASTAUGH, Justice.
FABE, Chief Justice, with whom MATTHEWS,
Justice, joins, dissenting.
I. INTRODUCTION
After Ty Douglas repeatedly and egregiously misbehaved
during pretrial hearings for two years, the trial court excluded
him from the courtroom during his jury trial on charges of
witness tampering and unlawful contact, but allowed him to
participate by speakerphone. Midtrial Douglas asked to testify
in person. The trial court denied this request after finding
that Douglass promise to behave was not credible. After Douglas
was convicted, the court of appeals affirmed. Douglas has
petitioned for hearing.
A trial court may exclude a criminal defendant for
disruptive behavior. Although the court must allow an excluded
criminal defendant an opportunity to reclaim his right to be
present if he demonstrates willingness to behave appropriately,
it is not obliged to uncritically accept every promise to behave.
The trial court did not abuse its discretion either by removing
Douglas from the courtroom or by refusing his later request to
reenter. We therefore affirm the court of appeals opinion
affirming Douglass conviction.
II. FACTS AND PROCEEDINGS
Ty Douglas was charged with sexually assaulting and
beating his girlfriend, K.I.1 Douglas was prohibited from having
any contact with K.I. while the assault case was pending. While
Douglas was in custody awaiting trial on those charges, 828 calls
to K.I. were placed from the jail where Douglas was being held.
K.I. wrote a letter to the district attorney recanting her
allegations that Douglas had assaulted her and saying that she
caused her own injuries. Shortly thereafter K.I. told a police
officer that Douglas had been calling her from the jail and that
she had been taking his calls. Consequently, in October 2002,
even before the assault case went to trial, Douglas was also
charged with three counts of first-degree witness tampering,2 ten
counts of first-degree unlawful contact,3 and ten counts of
attempted first-degree unlawful contact.4
The assault case went to trial first. Superior Court
Judge Larry R. Weeks presided.5 Douglas was apparently present
in the courtroom during the trial.6 When the jury returned
guilty verdicts on all of the assault charges, Douglas spat at
the jurors and spectators and said he hoped they contracted
diseases.7 Judge Weeks ordered Douglas physically restrained at
all further hearings in the assault case.8 The assault
convictions were ultimately affirmed on appeal.9
The trial on the witness tampering and unlawful
contact charges was assigned to Superior Court Judge Michael A.
Thompson, but trial was delayed pending the outcome of the
assault case.
During the two-year period in which Judge Thompson held
a series of pretrial hearings in the witness tampering case,
Douglass behavior was gravely disruptive and disrespectful. The
court of appeals published opinion accurately describes Douglass
misbehavior in great detail.10 Douglas frequently interrupted the
proceedings in the witness tampering case, often to argue facts
relevant only to the sexual assault case. He repeatedly insulted
the prosecutor, his own attorneys, and Judge Thompson during
these hearings. The court of appeals stated:
[At a calendar call on January 16, 2004]
Douglas told Judge Thompson that he wanted to
represent himself. Douglas then launched
into a lengthy recitation of complaints about
the way his former attorney had mishandled
the sexual assault trial. Douglas proclaimed
his innocence, and he suggested that he had
been convicted of sexual assault through the
bad faith and improper conduct of the
authorities, as well as the incompetence of
his own attorney.
. . . .
Toward the end of [a March 2, 2004] hearing,
Douglas suddenly erupted with invective and
charges of corruption against the prosecutor.
Douglas himself suggested that he should
participate telephonically in future
hearings, so that he would not have to look
at the prosecutor.
. . . (Extensive transcript passages
omitted.)
[O]n June 3, 2004, Judge Thompson held a
hearing[, at which Douglas appears to have
been present in court,] to set a date for the
witness tampering trial.
. . . .
Douglas . . . interrupted [the court],
proclaiming at length that the prosecutor was
suppressing evidence that would have
demonstrated his innocence of the sexual
assault charges, and that his own attorney
was refusing or neglecting to file important
motions. During his remarks, Douglas
insulted and swore at his own attorney, the
prosecutor, and Judge Thompson. In the end,
Douglass behavior led Judge Thompson to
declare that Douglas would be excluded from
further hearings in the case.
. . . (Extensive transcript passages
omitted.)
The pre-trial motion hearing was held on June
14th. . . . Douglas . . . personally attended
this hearing.
. . . .
Douglas again gratuitously insulted the
defense attorney, declared that the attorney
was incompetent, and asked Judge Thompson to
dismiss the attorney and appoint a new one.
Douglas also again gratuitously insulted the
prosecutor and declared that the prosecutor
was guilty of criminal conduct.
Toward the end of this conversation, Douglas
launched into a soliloquy that was unrelated
to the procedural issues that the attorneys
and the judge were discussing a soliloquy in
which Douglas asserted that the evidence
showed that he was innocent of the sexual
assaults.
Based on Douglass behavior, Judge Thompson
again ruled that Douglas would not be allowed
to attend the trial.
. . . (Extensive transcript passages
omitted.)
[On June 15, 2004, Judge Thompson ordered
that Douglas undergo a competency
evaluation.]
. . . (Extensive transcript passages
omitted.)
[T]oward the end of August 2004, Judge
Thompson held a hearing to announce the
result of the mental examination: the
psychologist from API had concluded that
Douglas was competent to stand trial.
. . . .
When Judge Thompson announced the result of
the mental evaluation, Douglas responded with
another rambling protestation that he had
been unjustly convicted of the sexual
assaults, and he again asked Judge Thompson
to appoint him a new attorney, but the judge
again refused.[11]
Douglas had three noteworthy outbursts that are not
described in detail in the court of appeals opinion. At the
January 16, 2004 calendar call, Douglas asked about prosecuting
the prosecutor for perjury and called the prosecutor a Nazi
bastard. At an August 20, 2004 status hearing, Douglas argued
that his attorney should be removed. He also discussed the
evidence from the assault trial and argued that he should not
have been convicted in the assault trial because the victim was a
liar. On August 27, 2004, there was another outburst, which we
describe in detail below.
Douglas also had difficulty dealing with his own
attorneys. He was represented by at least seven different
attorneys in the superior court,12 and he struck one of the
attorneys who represented him on the witness tampering charges in
the face.
During the hearings in which Douglas exhibited
disruptive conduct, Judge Thompson repeatedly interjected when
Douglas discussed facts relevant only to the assault case, and
stated there was nothing he, Judge Thompson, could do about the
assault trial. Judge Thompson also repeatedly warned Douglas
that if he continued to engage in disruptive behavior, he would
be removed from the courtroom.
The jury trial on the witness tampering charges had
been scheduled to begin June 15, 2004. On June 3, 2004, Judge
Thompson stated from the bench that he planned to exclude Douglas
from trial because Douglas could not control himself. On June
14, 2004, Judge Thompson reiterated that intention, explaining
that the jury . . . would be looking for ways . . . to throttle
Mr. Douglas, if not convict him, and . . . under the
circumstances he cant get a fair trial if hes in the courtroom.
Douglas was present in the courtroom when Judge Thompson made
these comments. Douglas certainly heard and responded to the
remarks. The next day Judge Thompson concluded that Douglas had
forfeited his right to be present, because Douglas refused to
behave himself despite what Judge Thompson called the courts
pressuring and cajolery and threats. Judge Thompson stated that
Douglas would just simply prejudice the jury against himself and
that he was not willing to subdue Douglas with mechanical or
medical means just so Douglas could be present in the courtroom.
Douglass attorney objected to the exclusion. Judge Thompson said
that the court would take frequent breaks to give Douglass
attorney an opportunity to confer with Douglas.
On June 15, 2004, when the trial was about to commence,
Judge Thompson ordered a competency evaluation at the request of
Douglass attorney, and continued the trial until August 31. The
psychologist who evaluated Douglas reported that Douglas was
competent to stand trial and that [t]o the extent that he does
not cooperate with his attorney, it is because he chooses not to
do so. The psychologist stated that Douglas was capable of
conforming his behavior to courtroom protocol but was just not
willing to do so, and that Douglas can be expected to publicly
vent his frustration as a form of protesting his circumstances.
On August 27, 2004, at the final status hearing before
the rescheduled trial, Douglas was again disruptive and
disrespectful. He interrupted the proceedings to argue facts
relevant only to the assault case, accused the prosecutor of
misconduct and called him insane, and called his own attorney an
idiot and a liar. Douglas told the court this is the reason why
America is trashed. Its from people like you [Judge Thompson]
and and this defense attorney. You people are bringing this
country down to its knees on frivolous bullshit. . . . You
liberal assholes.
The following passage, from the August 27 final
pretrial hearing, typifies the tone and substance of what Douglas
had been saying at hearings for nearly two years in the witness
tampering case:13
[I]t was an illegal sentencing and an illegal
conviction because false evidence was given
to the jury, false evidence by [the district
attorney]. Theres no way that he he just
embellished everything that embellishing, I
mean he made things up, that fisting and
there was no blood in the vagina, you
know . . . and there was a Pap smear. There
was a Pap smear and he said I was fisting her
and she was drenched in blood.
. . . .
There was no test that concluded that that
blood came from there. There was nothing
wet. The only thing body bleeding was me
and one of her hemorrhoids for being kicked
after while she was biting my thumbnail.
. . . .
Im going to win my appeals. Theres no way,
theres no proof of penetration here and thats
what it takes, and she bit my thumb. I mean
she bit my thumb. She admitted to biting my
thumb and she admitted that I kicked her
while she was biting my thumb, and those are
the only marks that she has on her. Nothing
nothing internal, nothing wrong with her.
The evidence proves it.
Douglass three-day jury trial began August 31, 2004.
Per Judge Thompsons previous ruling, Douglas was not present in
the courtroom. Department of Corrections personnel held Douglas
in a different room in the courthouse, where he was permitted to
listen to the proceedings by speakerphone. On the first day,
before jury selection began, Douglas, via the speakerphone,
interrupted a pretrial evidentiary hearing to again argue facts
relevant only to the assault case. Judge Thompson stated that he
was excluding Douglas because Douglas wouldnt or couldnt let
anybody else get a word in edgewise. Judge Thompson stated that
we just cant get anything done with him in here, and that he
could not subject the jury to Douglass misbehavior. Judge
Thompson reiterated his willingness to take breaks and provide
Douglas with paper and pen so Douglas could communicate with his
attorney.
Evidentiary hearings and jury selection took place on
August 31, and the state presented its case on September 1.
Douglas was not in the courtroom when the state presented its
case. K.I. testified that she spoke to Douglas at least ten
times while he was in custody, that he attempted to contact her
on other occasions, and that during at least four of those
conversations he asked her to change her story about the assault.
K.I. had written a letter to the district attorney recanting the
assault allegations, but she testified that she sent the letter
at Douglass request and that its contents were untrue.
After the state rested and the jury was out of the
courtroom, Douglas informed the court by speakerphone that he
wished to testify, but only if he could do so in person. In
explaining why he wanted to testify, Douglas stated that allowing
K.I. to testify outside of his presence was the biggest farce [he
had] ever heard of, and that he wanted [the jury] to see a face
rather than a picture. The prosecutor expressed concern about
Douglass spitting and lunging behavior during the assault trial.
Judge Thompson said he had no intention of allowing Douglas in
the courtroom while the jury was there. Douglas called the
prosecutor and the court fucking moron[s]. Judge Thompson then
allowed Douglass microphone to be cut off and stated:
The point is he wants to testify but he
cant confine himself either to relevant
matter, he wont answer questions, I mean,
because Ive tried to ask him questions during
hearings. He will not pay any attention to
the question I ask, he wont answer the
question I ask; he just wants to make
speeches. And his speeches ramble and
include all kinds of prejudicial material
that I would never admit against either
[K.I.]s interest, against [the prosecutor],
against his own attorney, aside from what he
thinks about me. And, you know, I think we
all have to face the facts.
If he comes in here and carries on like
this, which is the only way I can assume he
will carry on because every hearing Ive had
with him for the last six months hes carried
on like this, the jury is going to make short
work of the verdict in this case. Theyre
going to see somebody that probably ought to
be locked up, and thats all theyre going to
see. And I think hes going to prejudice
himself.
I dont take it lightly because this, in
effect, strips him of certain constitutional
rights, but, you know, hes doing the
stripping, Im not. I mean just simply cant
permit him to come in here and turn this
place into a circus or a wrestling match and
Im just not going to do it.
So I think I understood what he said is
what he just said, among other things, was
that, no, he wont testify unless hes going to
be able to sit here and look the jury in the
eye while he does it. I wish he could do
that. I wish it were so. I cant permit,
though, Mr. Douglas to come up here and carry
on in this fashion, in this high-handed
fashion that he insists on doing.
Judge Thompson allowed Douglass microphone to be turned
back on so his attorney could ask Douglas whether he wished to
testify over the speakerphone. Douglas reiterated his request to
testify in person, stating that he wished to tell the story of
this entire episode and exhibit the proof, which my lawyers did
not do, and that he had all the proof, documents, medical
records, everything that proves that she is a liar. In an
apparent attempt to assure the court that he would not behave
disruptively in front of the jury, Douglas stated:
I didnt act up in front of the jury last time
until after the verdict. They were fine. We
were fine with the jury. I sat there through
the whole trial. I didnt want to mess up in
front of the jury and I dont want to mess up
in front of this jury, and I wont. . . . Im
not going to sabotage myself in front of the
jury. Im going to show myself calmly.
. . . .
Theres no reason for me to get upset in front
of that jury. I dont want to make those
people upset. Now after its over, dont bring
me back in there for the reading of the
verdict. . . . Im not going to act out.
After Douglas promised to show [himself] calmly, he discussed at
length the testimony he planned to offer, much of which was
relevant only to the assault trial.
Judge Thompson denied Douglass request to testify in
person, saying I cant bring Mr. Douglas in here, to which
Douglass attorney replied, Im not asking you to. The court
stated that if Douglas was permitted to testify, the state would
have a right to cross-examine Douglas, and that the court
believed that Douglas would not answer their questions except
with invective and insults, which would require the court to
strike the testimony and leave the jury hopelessly prejudiced
against Douglas.
Douglas did not testify at trial. The jury found him
guilty on all submitted counts. At the November 23, 2004
sentencing, Judge Thompson noted that Douglas
sound[ed] . . . more calm and collected, but Douglas once again
repeatedly interrupted the court to discuss facts relevant only
to the assault case.
Douglas appealed to the court of appeals, arguing that
the trial court was obliged to allow him to be present in the
courtroom once he stated that he would conduct himself
appropriately in front of the jury.14 The court of appeals
affirmed his convictions, holding that the trial court did not
abuse its discretion in removing Douglas and not allowing him to
reenter the courtroom during the trial.15
Douglas petitioned for hearing. We granted his
petition and ordered full briefing to consider whether the trial
court erred when it initially excluded Douglas from the courtroom
or when it refused to allow Douglas to return after he asked to
testify and stated that he would not act out.
III. DISCUSSION
A. Standard of Review
We have not yet stated what standard applies for
reviewing trial court orders excluding disruptive criminal
defendants from trial. In Illinois v. Allen,16 the seminal
Supreme Court case on the issue, the Court impliedly applied an
abuse of discretion standard, in stating that trial judges
confronted with disruptive, contumacious, stubbornly defiant
defendants must be given sufficient discretion to meet the
circumstances of each case, and in holding that the trial judge
acted completely within his discretion.17
In Rae v. State18 the Alaska Court of Appeals, applying
Allen, reviewed for abuse of discretion a trial courts decision
to bind and gag a defendant after disruptive and violent
outbursts.19
We recognize that the decision to remove or restrain a
disruptive criminal defendant implicates important constitutional
rights, such as the right to confront witnesses, the right to due
process of law, and the privilege to testify.20 We nevertheless
conclude that a trial courts decision to remove or restrain a
disruptive criminal defendant under Allen is subject to review
for abuse of discretion. The trial court is charged with
maintaining courtroom decorum, and it is in the best position to
assess how disruptive a defendants behavior is and how likely it
is to continue. Because a trial courts denial of a defendants
request to return to the courtroom, whether to confront witnesses
or testify, in essence involves the same constitutional rights
and institutional needs and has an equivalent effect, it is
likewise reviewed for abuse of discretion. A court abuses its
discretion if it issues a decision that is arbitrary, capricious,
manifestly unreasonable, or stems from an improper motive.21
We use our independent judgment in reviewing rulings
turning on federal and state constitutional law.22 We adopt the
rule of law that is most persuasive in light of precedent,
reason, and policy.23
B. Whether It Was an Abuse of Discretion To Order Douglas
Removed from the Courtroom
The right of a criminal defendant to be present at
every stage of trial is rooted in the right to confront adverse
witnesses24 and the right to due process of law.25 But, as
Douglass opening brief acknowledges, the right to be present at
trial is not absolute. In Allen the Supreme Court held that
although courts must indulge every reasonable presumption against
the loss of constitutional rights, a defendant may forfeit the
right to be present at trial if after he has been warned by the
judge that he will be removed if he continues his disruptive
behavior, he nevertheless insists on conducting himself in a
manner so disorderly, disruptive, and disrespectful of the court
that his trial cannot be carried on with him in the courtroom.26
The Court identified three constitutionally permissible
ways a court may handle an obstreperous defendant . . . : (1)
bind and gag him, thereby keeping him present; (2) cite him for
contempt; (3) take him out of the courtroom until he promises to
conduct himself properly.27
Alaska Rule of Criminal Procedure 38(a) also implements
the right to be present as a procedural requirement.28 But Alaska
Rule of Criminal Procedure 38(b)(2) allows a trial to proceed
without the defendant whenever a defendant, initially present . .
. [e]ngages in conduct which is such as to justify exclusion from
the courtroom.
Douglass briefs do not make it clear whether he is
invoking federal or state constitutional principles, but he seems
to assume that the standards are the same under either
constitution, and that, in any event, Allen controls.
Allen, of course, governs right-to-be-present claims
based on the United States Constitution. We have never before
considered whether Allen controls right-to-be-present claims
grounded in the Alaska Constitution or Criminal Rule 38, i.e.,
whether to adopt standards more protective than those announced
in Allen. Allen sets minimal standards that we must apply
whether the defendant relies on the federal or state
constitution. Neither party argues that Allen does not or should
not apply to state constitutional claims, and neither asks us to
apply alternative standards. The court of appeals assumed that
Allen applies.29 We therefore assume without deciding that Allen
also applies to right-to-be-present claims Douglas may base on
Alaska law.
In Allen the Supreme Court upheld a criminal defendants
exclusion for conduct comparable to Douglass. Allen examin[ed a]
. . . juror . . . at great length on matters apparently
irrelevant to the jurors qualifications and, when interrupted by
the court, argued with the judge in a most abusive and
disrespectful manner.30 Allen also continued to talk after being
asked not to, said to the judge [w]hen I go out for lunchtime
youre going to be a corpse here, and tore his attorneys file and
threw papers on the floor.31 Allen continued to talk back to the
judge after being warned that he would be removed.32 After being
allowed back into the courtroom, Allen was removed again because
he interrupted the proceedings, saying Im going to start talking
and Im going to keep on talking all through the trial. Theres not
going to be no trial like this.33
Other courts, also applying Allen, have upheld removal
for disruptive behavior as or less egregious than Allens. In
United States v. Nunez, the trial court removed the defendant
from the courtroom after he twice interrupted the prosecutors
examination, once by calling the witness on the stand a liar and
another time by talking in a loud voice and gesturing with his
hands.34 The United States Court of Appeals for the Tenth
Circuit, observing that the defendant was given a warning before
being removed, held that the district court did not err in
removing the defendant from the courtroom.35 In Chavez v. Pulley,
a habeas case, the district court for the Eastern District of
California held that the state trial court did not abuse its
discretion when it removed the defendant for persistently
interrupt[ing] the judge despite the latters warnings concerning
his behavior.36 And in State v. Chapple, the Washington Supreme
Court held that the trial court did not abuse its discretion when
it removed the defendant for interrupting the proceedings,
speaking disrespectfully, and introducing information about his
previous trial that might have prejudiced the jury.37
Douglass behavior was no less egregious than that which
has been held sufficient to justify exclusion. It appears Judge
Thompson was aware as early as November 2003 that, when the
verdicts were returned in Douglass assault case, Douglas spat at
the jurors and spectators and said that he hoped they contracted
diseases.38 During pretrial hearings in the witness tampering
case, including a hearing on the first day of trial, Douglas
frequently interrupted the proceedings, often to argue facts
relevant only to the assault case despite Judge Thompsons
repeated insistence that the court was unable to help Douglas
with that case; he also repeatedly insulted the prosecutor, his
own attorneys, and the judge.
Of course, no action against an unruly defendant is
permissible except after he has been fully and fairly informed
that his conduct is wrong and intolerable, and warned of the
possible consequences of continued misbehavior.39 Judge Thompson
repeatedly and sufficiently warned Douglas that if he continued
to engage in disruptive behavior he would no longer be allowed in
the courtroom, but his misbehavior continued despite those
warnings. Warnings need not be contemporaneous with exclusion to
be sufficient to satisfy Allens requirements.40
Douglas appears to concede that his behavior at the
pretrial hearings justified his initial removal from the
courtroom on the first day of trial. But even absent that
concession, his behavior was sufficiently egregious to justify
his initial exclusion. The competency evaluation indicated that
Douglas was able to control himself but chose not to, and that he
could be expected to publicly vent his frustration as a form of
protesting his circumstances. The trial court did not abuse its
discretion when it excluded Douglas from the courtroom on the
first day of trial.
C. Whether It Was an Abuse of Discretion To Require
Douglas To Testify by Speakerphone
The Court in Allen stated that [o]nce lost, the right
to be present can, of course, be reclaimed as soon as the
defendant is willing to conduct himself consistently with the
decorum and respect inherent in the concept of courts and
judicial proceedings.41 We must therefore determine whether it
was an abuse of discretion for the trial court to determine that
Douglas was not in fact willing to behave in the courtroom if he
were brought back to testify live, and to require Douglas to
testify by speakerphone.
We first address two preliminary matters. First, the
court of appeals noted that Douglas may not have preserved this
claim of error at trial.42 When Douglas asked to return and the
trial court stated that it [could]nt bring Mr. Douglas in here,
Douglass attorney replied Im not asking you to. The court of
appeals nonetheless chose to reach the merits of the issue
because of the importance of this issue to future cases.43 The
state does not argue that the issue was not preserved. We
therefore assume it was.
Second, Douglas implicitly argues the trial court
infringed not only on his right to be present, but also on his
privilege to testify in his own defense. The trial court offered
Douglas the opportunity to testify telephonically, which he
declined.
We apply the Allen standards to determine whether a
defendant may forfeit his right to testify in person, as well as
his right to be present, by engaging in disruptive conduct.44 It
is therefore not necessary for us in this case to distinguish
between the right to confront witnesses and the right to testify,
although we also note that the right invoked may have a bearing
on what measures least restrictively avoid his continued
misbehavior.
Douglas argues that because he was excluded from the
courtroom as a result of his disruptive behavior, the court was
required to allow him to return to the courtroom after he asked
to testify in person and promised to behave. The state responds
that because of Douglass actions during the pretrial hearings,
the results of his competency evaluation, Judge Thompsons
repeated warnings, and the numerous opportunities that Douglas
was afforded to demonstrate his composure, the trial court was
not required to allow Douglas to return based upon Douglass naked
statement that he would behave.
1. Whether a trial court must credit a criminal
defendants promise to behave
The court of appeals held that the trial court did not
abuse its discretion by refusing to allow Douglas to reenter the
courtroom.45 It distinguished between a promise to behave and a
demonstrated willing[ness] to behave, and held that a trial judge
is not obliged to uncritically accept all promises of future good
behavior. If the record affirmatively demonstrates good reasons
for not accepting the defendants promise at face value, the judge
does not need to keep giving a disruptive defendant the benefit
of the doubt.46
Several courts have also held that it was not an abuse
of discretion to refuse to allow a defendant to reclaim his right
to be present or his privilege to testify based solely on his
promise to behave.47 For example, in United States v. Munn, a
defendant who was removed from the courtroom at the beginning of
jury selection requested to return during that same morning
session.48 The court allowed him to return, but not until trial
resumed for the afternoon, at which point the defendant had been
absent approximately one hour and fifteen minutes.49 The Tenth
Circuit held that the trial court did not abuse its discretion in
declining to return Munn to the courtroom until the afternoon
session.50 It noted that (1) Munn was able to hear the progress
of his trial through a broadcasting system; (2) Munn was
advised . . . that he would be afforded opportunity to confer
with his attorney; and (3) Munn was only out of the courtroom
something over an hour before he was returned on his promise of
good behavior.51 The court stated that
[Allen is not] an absolute mandate dictating
the return of every defendant who has been
removed from the courtroom simply on his
verbal promise to reform. Prior conduct may
indicate such a promise is of little value.
Certainly some discretion is still left with
a trial court to pass upon the sincerity of a
defendants recantation.[52]
And in United States v. Ives, the trial court refused
to allow the defendant back into the courtroom to testify after
he was removed several times for disruptive behavior.53 The court
did not offer the defendant the choice of testifying
telephonically.54 The United States Court of Appeals for the
Ninth Circuit concluded that the trial court did not err in
concluding that the defendant lost his right to testify by
continuing to engage in disruptive behavior after being warned,
removed, and allowed back in.55
We agree with the Alaska Court of Appeals that Allen
does not say that a defendant automatically reclaims the right to
be present whenever the defendant promises to behave. Rather,
Allen says that the defendant reclaims the right to be present
when the defendant is willing to behave.56 We hold, as did our
court of appeals, that a trial judge is not obliged to
uncritically accept all promises of future good behavior. If the
record affirmatively demonstrates good reasons for not accepting
the defendants promise at face value, the judge does not need to
keep giving a disruptive defendant the benefit of the doubt.57
We also agree that it would be error to indefinitely
bar a defendant from attending their trial or sentencing
proceedings based merely upon their past misconduct and the
surmise that the disruptive conduct may continue.58 The court of
appeals correctly recognized that defendants must be allowed to
reclaim the right to attend their trial by altering their
behavior.59
2. Whether it was an abuse of discretion for the
trial court to discredit Douglass promise to
behave
We next consider whether there was good reason for not
accepting at face value Douglass promise to behave. The state
notes that the trial court had temporarily excluded Douglas on
several occasions, allowing him to return each time, and that
Douglas had repeatedly demonstrated his unwillingness to control
himself. The state argues that Douglass behavior immediately
before and after his request to return belied his promise to
behave. It asserts that just before promising to show [himself]
calmly Douglas called the prosecutor and the court fucking
moron[s]. And it contends that after promising that he would
behave, Douglas clearly telegraphed his intention to play by his
own rules and relitigate his sexual assault charges by stating
both that he planned to exhibit proof which my lawyers did not do
and that he had everything that proves that [K.I.] is a liar.
The state concludes that the combination of Douglass past and
immediate behavior was sufficient to support the trial courts
determination that Douglass promise to behave was not credible.
The trial court expressed concern that Douglas would
not limit his testimony to relevant matters on direct examination
or meaningfully answer the prosecutors questions on cross-
examination, and that he would curs[e] and carry[] on if
interrupted. It predicted that Douglas would not answer the
states questions except with invective and insults and that
Douglass conduct would leave the jury hopelessly prejudiced
against Douglas. And it stated that it did not wish to be
presented with the possibility of striking Douglass testimony or
declaring a mistrial.
We agree with the state and the court of appeals that
the trial court did not abuse its discretion when it concluded
that Douglass promise to behave was not credible and therefore
refused to allow Douglas to return to the courtroom to testify.60
Any determination of credibility will necessarily be based on a
defendants past behavior. If previous misbehavior is
sufficiently severe and recent to render a promise to behave not
credible, Allen does not mandate that a defendant be given yet
another opportunity to misbehave, this time in front of the jury.
The dissenting opinion does not say how many chances
Douglas should have been given and seems to posit a one-bite rule
that allows every defendant who promises to behave at least one
opportunity to act out in front of the jury, irrespective of the
recency and severity of pretrial misbehavior or the lack of
credibility of the defendants promise. The dissenting opinion
says that Douglas was not given even a single opportunity to
appear before the jury upon his promise to behave.61 This
contention seems to assume that the trial court was bound to
credit Douglass promise. It was not.
Douglas was disruptive and disrespectful during both
the final status and pretrial evidentiary hearings on the eve of
trial, and he continued to misbehave immediately before and after
Judge Thompson denied his request to return. He also insisted at
those hearings that he intended to relitigate the first trials
assault charges and K.I.s credibility. Given Douglass pattern of
misbehavior and insistence on attempting to offer irrelevant and
inadmissible evidence, Judge Thompson could permissibly find that
Douglass promise to behave was not credible.
We assume the trial court must inform a defendant he
can return to court if he behaves.62 But any failure to
explicitly so advise Douglas during the trial or the final
pretrial hearings did not prevent Douglas from asking that he be
returned to the courtroom. He vigorously demanded to be
returned.
We also assume a trial judge considering such a request
must give de novo consideration to the defendants current
promises or contentions, and may not simply decline to reconsider
an earlier exclusion order.63 But this does not mean the trial
court must consider the current promises or representations in a
contextual vacuum. The court here justifiably took into account
what Douglas had long been saying; there was no sign Douglas had
mellowed and would behave even if thwarted on direct or provoked
on cross, and there was no evidence that Douglas had in fact
changed his tune and that his promise to behave was credible.
There was ample evidence, personally witnessed by the
trial court, that permitted the trial court to make a reasoned
decision that Douglas was not in fact willing or able to behave
himself while testifying. As the state argues, Douglas had
reacted badly in the past to being told that he could not discuss
certain matters pertaining to the sexual assault case: when
Douglas was asked to be quiet or not to use abusive names such as
vile pig-face man and fat ass to refer to others in the
courtroom, he responded with angry, uncontrolled outbursts and
was wholly undeterred by any form of warning.
We also agree with the state that Douglas had been
temporarily excluded on several occasions, and had demonstrated
an unwillingness to control himself when he was returned to the
courtroom. Judge Thompsons willingness to allow Douglas back
into the courtroom on these occasions implies that Judge Thompson
did not remove Douglas because he was personally offended by
Douglass behavior. Rather, it gives credence to Judge Thompsons
explanation that he excluded Douglas from the trial because of
the likelihood that Douglas would disrupt the proceedings and
prejudice himself.
The state and court of appeals correctly note that
Douglass own attorney was convinced Douglas would be unable to
behave if cross-examined in a way that made him feel
uncomfortable or admonished by the judge to confine his remarks
to pertinent subjects and admissible evidence.64 Indeed, Douglas
himself on more than one occasion stated to Judge Thompson that
he could not control himself. As the court of appeals noted:
On several occasions, when Judge Thompson or
Douglass own attorney admonished him to keep
quiet and stop giving speeches, Douglas
replied that he could not do so. For
instance, at the March 2nd pre-trial hearing,
Douglas aimed invective at the prosecutor.
When Judge Thompson told Douglas to stop,
Douglas replied that it was impossible and
he then accused the prosecutor of subverting
justice:
The Court: Mr. Douglas, youre going
to have to control yourself.
Douglas: I cant. This guy stole my
evidence. He . . .
. . . .
A similar colloquy i.e., another
protestation by Douglas that it was
impossible for him to remain silent took
place at the motion hearing on June 14th:
Defense Counsel: Listen, you
(indiscernible simultaneous
speech).
Douglas: Excuse me. I cant take
this. He [ i.e., the prosecutor]
is a liar.
Defense Counsel: You need to just
sit and keep quiet.
The Court: Try to take . . .
Douglas: Pig-eyed liar. Hes going
to hell. . . . [To the prosecutor]
Youre going to be swimming with
[K.I.] in the lake of fire, you
fucking fat pig. Thats what I
meant by going swimming, you
pig-faced bastard.
The Court: Well. Let me note
that . . . one reason I had Mr.
Douglas brought [to the courthouse]
today, instead of doing this by
phone, was just to see if there had
been any . . .
Douglas: Well, I just cant sit here
and listen to lies, Your Honor.[65]
Finally, we agree with the state that Douglass
contemporaneous behavior on September 1, 2004 calling the
prosecutor and judge fucking moron[s] and insisting on discussing
evidence that was relevant only to his assault case belied his
promise to behave.
3. The danger the trial court might have to declare a
mistrial
We assume that the court of appeals was correct in
supposing that Douglass promise to behave might have been
sufficient to warrant his return to the courtroom if the sole
danger to the orderliness of the proceedings had been Douglass
history of physically assaultive conduct.66 Courtroom measures,
such as inconspicuous restraints or physical separation, might
have fully ameliorated that risk. But that was not the only
risk he posed; the trial court was also justifiably concerned
about the prejudicial impact on the jury of Douglass verbal
behavior, and also the danger the trial court might have to
declare a mistrial.
Many courts have held that misconduct or disruptive
behavior on the part of a defendant during the course of a
criminal trial will not establish grounds for his obtaining a
mistrial.67 And both trial and appellate courts are
understandably reluctant to reward a misbehaving defendant with a
self-inflicted mistrial. But we have held that there are
instances of serious misconduct on the part of an accused . . . ,
which make permissible both the granting of a mistrial and
reprosecution,68 and we assume that Judge Thompson was aware of
that holding. And some courts have granted mistrials on the
basis of prejudice stemming from a defendants own misconduct.69
Although we would not in most cases consider a
defendants own misconduct grounds for a mistrial, we decline to
hold categorically that a defendant altogether waives his right
to a fair trial if he prejudices himself by misbehaving in front
of the jury. A trial court may feel obligated to grant a
mistrial, either on the defendants motion or sua sponte, even if
it is the defendants own misbehavior that potentially prejudices
the jury.
The trial court therefore expressed a valid concern
that it might have to declare a mistrial if it allowed Douglas to
reenter the courtroom to testify.70 Even Douglass own trial
attorney implied that he believed Douglas was likely to misbehave
in front of the jury if Douglas was permitted to reenter the
courtroom. If that occurred, the trial court would have been
faced with the possibility of having to decide whether to declare
a mistrial.
Had Douglas misbehaved in front of the jury and then
moved for a mistrial, the trial court would have had to decide
whether to grant or deny the motion. Either granting or denying
such a motion would have burdened jurors, defense counsel,
prosecutors, and the court system. Granting would have allowed
Douglas, by virtue of his own misbehavior, to delay the verdict
and impose the cost of reprosecution on the entire justice
system. Denying would have required review by the court of
appeals, at least, imposing additional burdens on the justice
system and perhaps requiring a retrial if the denial were
reversed on review.
Even if Douglas would not have moved for a mistrial,
the trial court would have been in a no-less-difficult position.
A trial court may only grant a mistrial sua sponte for manifest
necessity.71 Once jeopardy has attached after the jury has been
sworn a defendant may not be retried for the same offense unless
he has consented to a mistrial or there was manifest necessity
for granting a mistrial.72 The manifest necessity standard
requires a high degree of necessity such that the ends of public
justice would not be served by a continuation of the proceedings.73
If the trial court were to fail to grant a mistrial sua
sponte, a defendant might appeal the failure on the ground his
constitutional right to a fair trial was denied, or request
postconviction relief on the ground his attorney was ineffective
for failing to move for a mistrial.74 Litigation of either issue,
whatever the outcome, would cause further delay and increase
expense to the justice system.
A trial court faced with the difficult choice of
granting or denying a mistrial sua sponte might well grant the
mistrial, choosing to strike the balance in favor of protecting
the defendants right to a fair trial. But if an appellate court
were to hold that manifest necessity did not exist, the state
would be unable to reprosecute the defendant.75 By misbehaving,
the defendant could not only delay the proceedings and waste
resources, but might even avoid reprosecution. We decline to
encourage such a result.
These concerns confirm a trial courts need for broad
discretion in determining how best to avoid a mistrial while
protecting the rights of the misbehaving defendant to the extent
possible. Allowing a defendant repeated opportunities to reclaim
his right to be present or his right to testify may be desirable,
but it is not categorically required by Allen. Nor does the
Supreme Court categorically require a trial court to give a
defendant who has misbehaved egregiously outside the jurys
presence an opportunity to misbehave in front of the jury at
least once before being permanently removed.
4. The trial courts efforts to protect
Douglass constitutional rights
We also think it significant that the trial court did
not altogether prevent Douglas from testifying. The dissenting
opinion correctly notes our theoretical preference for live
testimony when possible, but it underestimates the potential
prejudice and disruption that would result from in-person, as
opposed to telephonic, misbehavior.76 Testifying by speakerphone
would have allowed Douglas to convey his version of relevant
facts, and would have allowed the court to carefully monitor
Douglass testimony and turn off outbursts to avoid prejudice or
until decorum could be restored. In contrast, live misconduct in
the jurys presence could have been stopped only by removing
Douglas from the jurys presence or removing the jury from
Douglass presence. Either of those remedies would have allowed
Douglas to continue to misbehave in the jurys immediate presence
for some minutes before he, or the jury, could be removed from
the courtroom. Having a disruptive defendant testify by
speakerphone particularly if the court imposes a brief
electronic delay so it can interrupt the testimony in time to
prevent the jury from hearing irrelevant, disruptive, or
prejudicial testimony would drastically reduce any prejudice and
disruption resulting from misbehavior.
But Douglas declined to take advantage of the courts
willingness to let him testify by speakerphone. The opportunity
to testify by speakerphone and the courts continued willingness
to allow Douglas to address (and abuse) the court outside the
jurys presence also helps persuade us that Judge Thompson did not
act prematurely or precipitously for any offense to the courts
personal sensibilities. Had Douglas made a credible promise to
behave, the record convinces us that the trial court would have
allowed Douglas to testify in person.
Under different circumstances we might find that it was
an abuse of discretion to refuse to allow a defendant back into
the courtroom to testify. But here Douglas continued to
misbehave in court even on the day before trial and on the first
day of trial, and Judge Thompson found that Douglas was not
willing to behave. If a defendants misbehavior were limited to
the more distant past, it might be sufficiently attenuated for
Allen to mandate that he be allowed another chance to reclaim his
right to be present. Similarly, we might find abuse of
discretion if a recently misbehaving defendant demonstrated by
his own behavior or the representations of a third person, such
as his attorney a credible change of heart and willingness to
behave. In that situation it might be unreasonable for the trial
court to rely even on a defendants recent past behavior to
determine that his promise was not credible. But that is not the
situation here. Nothing in Douglass words or in his recent or
past conduct demonstrates that it was an abuse of discretion to
decline to return him to the courtroom one more time.
We commend Judge Thompson for his handling of this
case. We are impressed that during a number of hearings over an
extended period of time Judge Thompson, in the Supreme Courts
words, at all times conducted himself with that dignity, decorum,
and patience that befit a judge, even in the face of scurrilous,
abusive language and conduct.77 He had many opportunities to
observe Douglass behavior and repeatedly attempted to cajole
Douglas into behaving so that Douglas could be present in the
courtroom during his trial. Judge Thompson excluded Douglas only
as a last resort and made the speakerphone remedy available. The
fact that Judge Thompson tried so hard to avoid excluding Douglas
confirms that Douglas indeed carried the keys to the courtroom in
his pocket but obstinately refused to use them, and that
exclusion was not only permissible but likely unavoidable.
IV. CONCLUSION
The court of appeals opinion affirming Douglass
conviction is AFFIRMED.
FABE, Chief Justice, with whom MATTHEWS, Justice, joins,
dissenting.
Today the court affirms Ty Douglass conviction despite
the fact that he was barred from attending his own trial and
denied the opportunity to testify in person on his own behalf.
Although it is certainly true that Douglas had been disruptive in
the courtroom in the past, the trial court failed to give him a
single opportunity to honor his promise to behave appropriately
in front of the jury. Because the law demands that more respect
be given to a defendants right to attend his trial, and in
particular to give live testimony if he so chooses, I would
reverse Douglass conviction.
As the court recognizes, a defendants right to attend
his trial is rooted in the right to confront adverse witnesses
and the right to due process of law under both the United States
and Alaska constitutions.1 The Supreme Court of the United
States has said that the accuseds right to be present in the
courtroom at every stage of his trial is [o]ne of the most basic
of the rights guaranteed by the Confrontation Clause.2 In recent
years the Supreme Court has steadfastly refused to relax the
requirements of the Confrontation Clause to accommodate the
necessities of trial and the adversary process,3 stressing that
there is something deep in human nature that regards face-to-face
confrontation between accused and accuser as essential to a fair
trial in a criminal prosecution.4 And we ourselves have noted
that the defendants presence at all stages of the trial . . .
promotes the perception and reality of fairness in the trial
process.5 Because such an important and deeply rooted right
should not be abridged lightly, any limitations placed on a
criminal defendants ability to attend his trial in person should
be no more restrictive than is necessary to accomplish the
purpose they serve.6
In Illinois v. Allen the Supreme Court grappled with
the question of what a trial judge can do to reduce the
disruption caused by an unruly defendant like Douglas without
running afoul of his constitutional right to be present during
his trial.7 As the court acknowledges today, Allen sets minimal
standards that we must apply whether the defendant relies on the
federal or state constitution.8 The treatment of Douglas failed
to meet the minimal federal standards set by Allen.
Under Allen, one constitutionally permissible method of
controlling a disruptive defendant is to exclude him from the
courtroom until he promises to conduct himself properly.9 The
Allen Court stressed that the right to be present can, of course,
be reclaimed as soon as the defendant is willing to conduct
himself consistently with the decorum and respect inherent in the
concept of courts and judicial proceedings.10 After being
removed once, the defendant in Allen was permitted to reenter the
courtroom upon his request to do so and a warning that he would
be removed again if he did not behave.11 After acting out and
being removed a second time, the trial judge reiterated his
promise to Allen that he could return to the courtroom whenever
he agreed to conduct himself properly and once Allen gave some
assurances of proper conduct he was permitted to be present
throughout the remainder of the trial.12 The Allen Court
favorably noted the fact that the trial judge constantly informed
[Allen] that he could return to the trial when he would agree to
conduct himself in an orderly manner.13
Excluding an unruly defendant from the courtroom as
described in Allen is analogous to holding an obstinate
individual in civil contempt of court. As is the case with civil
contempt, the purpose of the exclusion is remedial, rather than
punitive the defendant is excluded not to punish him for his
outbursts, but to ensure an orderly trial.14 And just as a civil
contempt defendant carries the keys to his or her imprisonment
(or punishment) in his or her own pocket,15 Allen requires that a
defendant excluded from his trial be given the means to redeem
himself and regain his right to be present in the courtroom.
Though Douglass pretrial antics were sufficiently inappropriate
to justify his initial exclusion, he was never given the keys to
his metaphorical cell.
After being barred from the courtroom due to his
misbehavior, Douglas asked to be allowed back in and promised to
show [him]self calmly. But the superior court did not allow
Douglas even a single opportunity to reenter, and once the trial
began it did not inform Douglas of anything he could do to
reclaim his right to be present. In fact, the superior court
repeatedly and unequivocally expressed its unwillingness to even
consider allowing Douglas into the courtroom: I dont have any
intention of bringing Mr. Douglas into the courtroom while the
jury is in the courtroom, [i]t just aint going to happen, Im not
going to bring him in here, and I cant bring Mr. Douglas in
here.16
The court recognizes that under Allen defendants must
be allowed to reclaim the right to attend their trial by altering
their behavior17 and that it would be error to indefinitely bar a
defendant from attending their trial or sentencing proceedings
based merely upon their past misconduct and the surmise that the
disruptive conduct may continue.18 Yet the court nonetheless
affirms Douglass conviction despite the fact that he was
indefinitely barred from his trial without ever once being
allowed to reclaim the right to attend. The court reaches this
result by drawing a fine distinction between a defendant who
promises to behave and a defendant who is willing to behave,
concluding that although Douglas promised to conduct himself
properly, he was not truly willing to do so.19 I do not believe
that Allen allows such a fine distinction to be drawn in my
view, Allen requires a trial court to at least provisionally
honor a defendants promise to behave even when his behavior has
been as egregious as Douglass.
But even if Allen does allow some promises to be
disregarded, Douglass promise to behave demonstrated sufficient
self-awareness and understanding of the importance of making a
good impression on the jury (if not on the judge and attorneys)
to merit at least a single chance to regain his right to attend
his trial. Although, as highlighted by the court, Douglas
expressed an unwillingness to behave during pretrial proceedings
in the absence of the jury, he nonetheless unequivocally stated
his intent to remain calm in the presence of the jury,
recognizing that the jury would be deciding his fate. Douglas
pointed out to the trial court that he didnt act up in front of
the jury [during his prior trial] until after the verdict and
that he sat there through the whole trial. He explained, I didnt
want to mess up in front of the [prior] jury and I dont want to
mess up in front of this jury, Im not going to sabotage myself in
front of the jury, [t]heres no reason for me to get upset in
front of that jury, and I dont want to make those people upset.
He also showed self-awareness regarding his misbehavior when he
stated that although he could show [him]self calmly to the jury
during the trial, the court shouldnt bring [him] back in there
for the reading of the verdict because if found guilty he would
be upset and might act out.
Several jurisdictions have held that a trial court
abused its discretion in refusing to allow a defendant to reenter
upon a request to return and promise to behave. For example, in
Goston v. State, the Arkansas Supreme Court held that although
the trial courts knowledge of a defendants past behavior is a
relevant consideration,20 the trial court abused its discretion
because Goston was never afforded any opportunity to reclaim his
right of confrontation despite requests to return and promises to
behave.21 And in State v. Aceto, the Montana Supreme Court held
that the trial court erred when it did not give the defendant a
chance to return to the courtroom when he apologized after
repeated bad behavior.22
Some jurisdictions have gone even further, interpreting
Allen to require a trial court to affirmatively offer a defendant
the opportunity to reclaim his right to be present.23 The
American Bar Associations Standards for Criminal Justice
similarly recommend that a removed defendant should be afforded
an opportunity to hear the proceedings and, at appropriate
intervals, be offered on the record an opportunity to return to
the courtroom upon assurance of good behavior.24
Although several decisions have upheld the permanent
exclusion of a disruptive defendant from his trial, in some of
these cases the defendant failed to request to return or promise
to behave,25 and in others, the defendant was allowed to return
multiple times upon repeated promises to behave, before finally
being excluded permanently.26 Douglass case does not require us
to decide precisely how many chances a defendant must be given
before he is barred from his trial indefinitely because Douglas
was not given even a single opportunity to appear before the jury
upon his promise to behave.
Even if it were possible to justify excluding Douglas
from the bulk of his trial, it is particularly troubling that
Douglas was not given a chance to testify in person on his own
behalf. In a context much less weighty than a felony trial a
simple drivers license revocation hearing we have recognized the
special importance of live, as opposed to telephonic,
testimony.27 We noted that the potential for empathy and nuanced
understanding is much greater in person-to-person communications
than in any of the various forms of telecommunicating, and thus
that when a party is denied an in-person hearing before a trier
of fact, there is a risk that the party will be less able to
convey the message that his story is the truth.28
Concerns about the difficulty of controlling Douglass
testimony do not serve as a persuasive rationale for denying him
the right to testify in person given that he was offered the
opportunity to testify by speaker phone and his speaker phone
testimony could likewise have been uncontrollable. Flipping a
switch to suppress acting out on a speaker phone seems only
marginally less prejudicial than calling a recess, excusing the
jury, and removing the defendant from the courtroom. And to the
extent that calling a recess would be more prejudicial, such a
problem would have been invited by the defendant.
The court overstates the risk of mistrial raised by a
possible outburst by Douglas in front of the jury, whether during
his own testimony or at another stage in the proceedings. As the
court recognizes, a defendants own misconduct is generally not
considered grounds for a mistrial to hold otherwise would give
many defendants a strong incentive to misbehave.29 Thus,
provided a defendant has been sufficiently warned that any
disruption he voluntarily causes will not result in a mistrial,
the risk of prejudicing himself in front of the jury should be
his to take if he so chooses.30 We should not countenance the
total denial of a defendants right to attend his trial and give
in-person testimony in the name of preserving other fair trial
rights of the defendant. The choice is for the defendant.
Because, by excluding Douglas from his entire trial and
refusing to let him testify in person, the trial court violated
the confrontation and due process clauses of the United States
and Alaska constitutions, I respectfully dissent.
_______________________________
1 Douglas v. State (Douglas I), 151 P.3d 495, 497-98
(Alaska App. 2006).
2 AS 11.56.540(a)(1).
3 AS 11.56.750(a).
4 AS 11.31.100(a); AS 11.56.750(a).
5 Douglas I, 151 P.3d at 495.
6 Douglas v. State (Douglas II), 166 P.3d 61, 65 (Alaska
App. 2007).
7 Id. at 65.
8 Id.
9 Douglas I, 151 P.3d at 497, 507. Douglas did not
appeal Judge Weekss decision to restrain him in that case. Id.
at 497.
10 Douglas II, 166 P.3d at 65-83.
11 Id. at 67-76.
12 Douglass first two attorneys withdrew because they had
conflicts of interest.
13 The court of appeals opinion sets out verbatim
exchanges between Douglas and the court on at least eight
different occasions, beginning with an exchange on November 20,
2003. Douglas II, 166 P.3d at 65-80.
14 Id. at 65.
15 Id. at 81, 83. Douglass appeal to the court of appeals
included additional issues, id. at 83-90, which his petition for
hearing explicitly waives.
16 Illinois v. Allen, 397 U.S. 337 (1970) (holding that
trial court acted within its discretion by removing criminal
defendant from court during trial, after defendant behaved
disruptively).
17 Id. at 343, 347.
The great majority of jurisdictions considering the
standard of review for trial court decisions to remove or
restrain defendants under the test enunciated in Allen review for
abuse of discretion. Spain v. Rushen, 883 F.2d 712, 716, 725
(9th Cir. 1989); United States v. Ives, 504 F.2d 935, 942 (9th
Cir. 1974), vacated on grounds not relevant here sub nom. Ives v.
United States, 421 U.S. 944 (1975), reinstated in relevant part,
547 F.2d 1100 (9th Cir. 1976); United States v. Munn, 507 F.2d
563, 568 (10th Cir. 1974); Goston v. State, 939 S.W.2d 818, 819
(Ark. 1997); State v. Jones, 916 A.2d 17, 35 (Conn. 2007); State
v. Gillam, 629 N.W.2d 440, 450, 452 (Minn. 2001); People v.
Powell, 740 N.Y.S.2d 859, 859 (N.Y. App. Div. 2002); Dotson v.
State, 785 S.W.2d 848, 853-54 (Tex. App. 1990); State v. Chapple,
36 P.3d 1025, 1030 (Wash. 2001) (en banc). Only one jurisdiction
seems to give de novo review. State v. Aceto, 100 P.3d 629, 632
(Mont. 2004).
18 Rae v. State, 884 P.2d 163 (Alaska App. 1994) (holding
that trial court abused its discretion in ordering defendant
bound and gagged during trial without holding full hearing).
19 Id. at 165.
20 Allen, 397 U.S. at 338; Ives, 504 F.2d at 941-42;
Chavez v. Pulley, 623 F. Supp. 672, 681-82 (E.D. Cal. 1985).
21 Shea v. State, Dept of Admin., Div. of Ret. & Benefits,
204 P.3d 1023, 1026 (Alaska 2009) (internal quotation marks and
alteration omitted) (quoting Dobrova v. State, Dept of Revenue,
Child Support Servs. Div., 171 P.3d 152, 156 (Alaska 2007)).
22 State v. Smart, 202 P.3d 1130, 1134 (Alaska 2009)
(citing Grinols v. State, 74 P.3d 889, 891 (Alaska 2003); Todd v.
State, 917 P.2d 674, 677 (Alaska 1996)).
23 Grinols, 74 P.3d at 891 (citing Guin v. Ha, 591 P.2d
1281, 1284 n.6 (Alaska 1979)).
24 U.S. Const. amend. VI; Alaska Const. art. I, XI;
Allen, 397 U.S. at 338 (One of the most basic of the rights
guaranteed by the Confrontation Clause is the accuseds right to
be present in the courtroom at every stage of his trial. (citing
Lewis v. United States, 146 U.S. 370 (1982))).
25 U.S. Const. amend. XIV; Alaska Const. art. I, VII;
United States v. Gagnon, 470 U.S. 522, 526 (1985) (stating that
the right to be present at trial is protected by the Due Process
Clause in some situations where the defendant is not actually
confronting witnesses or evidence against him); Wamser v. State,
652 P.2d 98, 101 n.10 (Alaska 1982) ([I]n Alaska the right to be
present is founded on the state constitutional rights of the
accused to due process and to confront the witnesses against him.
(citing Dixon v. State, 605 P.2d 882, 884 (Alaska 1980); State v.
Hannagan, 559 P.2d 1059, 1063 (Alaska 1977))).
26 Allen, 397 U.S. at 343.
27 Id. at 343-44.
28 Alaska R. Crim. P. 38(a) (The defendant shall be
present . . . at every stage of the trial, . . . except as
otherwise provided in this rule.).
29 Douglas II, 166 P.3d 61, 65 (Alaska App. 2007) (The
question is whether Judge Thompson abused his discretion under
Allen and Rae [v. State, 884 P.2d 163 (Alaska App. 1994)
(applying Allen to state constitutional claims)] . . . .).
30 Allen, 397 U.S. at 339.
31 Id. at 340.
32 Id.
33 Id. at 340-41.
34 United States v. Nunez, 877 F.2d 1475, 1476 (10th Cir.
1989).
35 Id. at 1476, 1478.
36 Chavez v. Pulley, 623 F. Supp. 672, 676, 681 (E.D. Cal.
1985).
37 State v. Chapple, 36 P.3d 1025, 1031-32 (Wash. 2001)
(en banc).
38 Douglas II, 166 P.3d 61, 65 (Alaska App. 2007).
39 Illinois v. Allen, 397 U.S. 337, 350 (1970) (Brennan,
J., concurring).
40 See, e.g., United States v. Munn, 507 F.2d 563, 567
(10th Cir. 1974) (holding that Allen does
not . . . require . . . a contemporaneous warning, and a warning
that occurred [s]everal weeks before trial was sufficient to
satisfy Allen).
41 Allen, 397 U.S. at 343.
42 Douglas II, 166 P.3d 61, 80 (Alaska App. 2007).
43 Id. at 80.
44 See United States v. Ives, 504 F.2d 935, 941-42 (9th
Cir. 1974) (adopting Allen standards for determining whether
defendant, as result of disruptive conduct, has waived privilege
to testify), vacated on grounds not relevant here sub nom. Ives
v. United States, 421 U.S. 944 (1975), reinstated in relevant
part, 547 F.2d 1100 (9th Cir. 1976); Chavez v. Pulley, 623 F.
Supp. 672, 681-82 (E.D. Cal. 1985) (applying Allen standards to
privilege to testify).
45 Douglas II, 166 P.3d at 83.
46 Id. at 81.
47 United States v. Munn, 507 F.2d 563, 567-68 (10th Cir.
1974); State v. Jones, 916 A.2d 17, 35 (Conn. 2007) (holding that
trial court did not abuse discretion by refusing defendants
request to return after head marshal reported that defendant was
behaving in confrontational manner with marshals, appeared
agitated, and was unapologetic about previous behavior); see also
United States v. Nunez, 877 F.2d 1475, 1476-78 (10th Cir. 1989).
But see Goston v. State, 939 S.W.2d 818, 820-22 (Ark. 1997)
(holding that it was abuse of discretion for trial court to
refuse to allow defendant to reclaim his right to be present upon
his request to return and promise to behave).
48 United States v. Munn, 507 F.2d 563, 567 (10th Cir.
1974).
49 Id. at 567-68.
50 Id. at 568.
51 Id. at 567-68.
52 Id. at 568.
53 United States v. Ives, 504 F.2d 935, 943-45 (9th Cir.
1974), vacated on grounds not relevant here sub nom. Ives v.
United States, 421 U.S. 944 (1975), reinstated in relevant part,
547 F.2d 1100 (9th Cir. 1976).
54 Ives, 504 F.2d at 944-45.
55 Id. at 946.
56 Douglas II, 166 P.3d 61, 81 (Alaska App. 2007)
(emphasis in original).
57 Id.
58 Id. at 80-81.
59 Id. at 81.
60 Id. at 83.
61 Slip Op. at 42.
62 See State v. Strich, 915 A.2d 891, 898-900 (Conn. App.
2007) (holding that although court erred in failing to inform
defendant that he could reclaim right to be present, error was
harmless).
63 See Douglas II, 166 P.3d at 80-81.
64 Id.
65 Id. at 82 (alterations and italics in original,
underline added).
66 Id. at 83.
67 State v. Linkous, 355 S.E.2d 410, 413 (W. Va. 1987)
(holding that refusal to grant mistrial after several members of
jury saw defendant engage in disruptive behavior that resulted in
scuffle with law enforcement officials at trial was not abuse of
discretion); see also, e.g., Gordon v. State, 609 N.E.2d 1085,
1087 (Ind. 1993) (holding that defendant was not entitled to
mistrial on basis of his outburst and subsequent shackling);
State v. Shank, 448 So. 2d 654, 657 (La. 1984) (holding that
defendant who was prejudiced because of his own speech and
conduct, including admissions of guilt before jury, threats to
kill jury, and attempt to strangle his defense counsel, was not
entitled to new trial); State v. Solomon, 7 S.W.3d 421, 427 (Mo.
App. 1999) (holding that defendants forcible removal from
courtroom in presence of jury did not warrant declaring a
mistrial).
68 Lewis v. State, 452 P.2d 892, 897 (Alaska 1969).
69 See, e.g., Braswell v. United States, 200 F.2d 597, 602
(5th Cir. 1952) (stating that [d]enial of a fair trial is beyond
the range of [permissible] punishment for misbehavior, and
holding that mistrial should have been granted after defendant
struck marshal in presence of jury).
70 See, e.g., United States v. Ives, 504 F.2d 935, 945
(9th Cir. 1974) (The judge, out of the presence of the jury,
accurately described the dilemma before him: If he refused to
allow Ives to testify, his counsel would charge that the court
erred by denying him that privilege; if he allowed Ives to
testify and Ives acted as the judge believed he would, his
counsel would charge that the court erred by not granting a
mistrial.), vacated on grounds not relevant here sub nom. Ives v.
United States, 421 U.S. 944 (1975), reinstated in relevant part,
547 F.2d 1100 (9th Cir. 1976).
71 Koehler v. State, 519 P.2d 442, 448 (Alaska 1974).
72 Arizona v. Washington, 434 U.S. 497, 505 (1978);
Koehler, 519 P.2d at 448.
73 United States v. Jorn, 400 U.S. 470, 485 (1971); see
also Muller v. State
478 P.2d 822, 826-27 (Alaska 1971).
74 See, e.g., Hardwick v. Dugger, 648 So. 2d 100, 104-05
(Fla. 1994) (considering, although ultimately rejecting for lack
of prejudice, postconviction claim that trial counsel was
ineffective for failing to move for mistrial after emotional
outburst of victims family member).
75 Koehler, 519 P.2d at 448.
76 Slip Op. at 42.
77 Illinois v. Allen, 397 U.S. 337, 347 (1970).
1 Slip Op. at 14 (footnotes omitted).
2 Illinois v. Allen, 397 U.S. 337, 338 (1970).
3 Melendez-Diaz v. Massachusetts, ___ S. Ct. ___, No. 07-
591, 2009 WL 1789468, at *12 (June 25, 2009) (internal quotation
marks omitted) (holding that Confrontation Clause bars admission
of certificates of drug analysis sworn by analysts at state
laboratory without requiring their in-court testimony).
4 Coy v. Iowa, 487 U.S. 1012, 1017 (1988) (internal
quotation marks omitted) (holding that placement of screen
between defendant and child sexual assault victims during
testimony against defendant violated defendants Confrontation
Clause rights); see also Giles v. California, 128 S. Ct. 2678,
2692-93 (2008) (holding that California Supreme Courts theory of
forfeiture by wrongdoing was not an exception to confrontation
requirement and noting that the guarantee of confrontation is no
guarantee at all if it is subject to whatever exceptions courts
from time to time consider fair ); Davis v. Washington, 547 U.S.
813, 821-22 (2006) (holding that Confrontation Clause bars
admission of a statement taken by a police officer in the course
of interrogation where the primary purpose of the interrogation
is to establish or prove past events potentially relevant to
later criminal prosecution and the witness does not appear at
trial); Crawford v. Washington, 541 U.S. 36, 53-54 (2004)
(holding that Confrontation Clause bars admission of testimonial
statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior
opportunity for cross-examination).
5 Raphael v. State, 994 P.2d 1004, 1012 (Alaska 2000).
6 Cf. State v. Murtagh, 169 P.3d 602, 608, 610 (Alaska
2007) (explaining that [s]tate practices, including statutes,
that interfere with fair trial rights do not pass constitutional
muster merely because they are minimally rational, but rather we
will consider not only the relative strength of the purpose
underlying the statute but also the likelihood that the statute
will achieve its purpose and whether the purpose can be achieved
in another way that does not impede fair trial rights).
7 397 U.S. at 342-47.
8 Slip Op. at 16.
9 397 U.S. at 343-44.
10 Id. at 343.
11 Id. at 340.
12 Id. at 341.
13 Id. at 346 (emphasis added).
14 See Stadler v. State, 813 P.2d 270, 272 (Alaska 1991)
(If it is for civil contempt the punishment is remedial . . . .
But if it is for criminal contempt the sentence is punitive . . .
.).
15 Id.; see also Diggs v. Diggs, 663 P.2d 950, 951 (Alaska
1983) ([A]ny sanction which is imposed as a result of the civil
contempt proceeding must afford a continuous opportunity to the
defendant to purge the contempt.).
16 The superior court also indicated a predisposition to
exclude Douglas prior to trial, warning Douglas: Im not nearly as
indulgent as Judge Weeks and if you were to get about two words
out of line with me, I think youd probably be listening in on the
speakerphone and I dont think . . . the microphone will be
working either.
17 Slip Op. at 23 (internal quotation marks omitted).
18 Id. (internal quotation marks omitted).
19 Id. at 22-24.
20 939 S.W.2d 818, 820 (Ark. 1997).
21 Id. at 821-22.
22 100 P.3d 629, 630-31, 638-39 (Mont. 2004).
23 Chavez v. Pulley, 623 F. Supp. 672, 681-82 (E.D. Cal.
1985) ([A] trial judge who has removed a criminal defendant from
the courtroom because of his disruptive behavior must offer the
defendant the opportunity to reclaim the right of presence and
the privilege to testify.); State v. Strich, 915 A.2d 891, 899-90
(Conn. App. 2007) (holding that the trial court erred because it
never informed the defendant that, with proper assurances, he
could reclaim his right to be present for the remaining courtroom
proceedings but that the error was harmless).
24 ABA Standards for Criminal Justice: Special Functions
of the Trial Judge, Standard 6-3.8 (3d ed. 2000).
25 People v. Pearson, 287 N.E.2d 715, 719 (Ill. 1972)
([T]he defendant did not ask to be allowed to resume his place in
the courtroom and, of course, he did not promise to conduct
himself properly following the second disturbance.); State v.
Sahakian, 886 S.W.2d 178, 181 (Mo. App. 1994) (stating that after
removal [d]efendant did not express any desire to participate in
the three day trial); Dotson v. State, 785 S.W.2d 848, 854 (Tex.
App. 1990) (holding no abuse of discretion where trial judge
removed defendant from courtroom, defendant did not request to
return, and trial judge did not subsequently inquire as to
whether defendant would behave if permitted to return); State v.
Chapple, 36 P.3d 1025, 1033 (Wash. 2001) (en banc) (stating that
lower courts have interpreted [the right to reclamation] to
require varying degrees of trial court involvement in the
reclamation and holding that using defense counsel as go-between
was adequate to give defendant opportunity to reclaim right).
26 United States v. Nunez, 877 F.2d 1475, 1476-78 (10th
Cir. 1989) (holding that it was not error to refuse to allow
defendant to return for third time, after having removed him
twice and excused him once, allowing him to return twice upon
promises to behave); People v. Medina, 906 P.2d 2, 26 (Cal. 1995)
(rejecting defendants argument that trial court erred in refusing
to allow defendant to return for sixth time, after having removed
him six times, allowing him to return five times upon promises to
behave); State v. Gillam, 629 N.W.2d 440, 451-52 (Minn. 2001)
(holding that it was not abuse of discretion to refuse to allow
defendant to return for third time, after having removed him
three times, allowing him to return twice upon promises to
behave).
27 Whitesides v. State, Dept of Pub. Safety, Div. of Motor
Vehicles, 20 P.3d 1130, 1136-37 (Alaska 2001).
28 Id. at 1137.
29 Slip Op. at 28-29.
30 The right to testify is personal to the defendant, and
the defendant may exercise it even if doing so is against his
counsels wishes and against his own best interests. See LaVigne
v. State, 812 P.2d 217, 219 (Alaska 1991) (explaining that [t]he
constitutional right to testify is both personal to the criminal
defendant and fundamental to the dignity and fairness of the
judicial process and that [t]he ultimate decision whether to
exercise the right therefore rests with the defendant, not with
defendants counsel); cf. Faretta v. California, 422 U.S. 806, 833-
36 (1975) (holding that criminal defendants have the
constitutional right to defend themselves pro se because although
in most criminal prosecutions defendants could better defend with
counsels guidance than by their own unskilled efforts, [t]he
right to defend is personal and the drafters of the Bill of
Rights understood the inestimable worth of free choice).
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