Opinion
No. 1 CA-CR 16-0639
03-20-2018
STATE OF ARIZONA, Appellee, v. REGINALD MCDANIEL LAVENDER, Appellant.
Arizona Attorney General's Office, Phoenix By Jillian Francis Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Lawrence H. Blieden Counsel for Appellant
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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
Appeal from the Superior Court in Maricopa County
No. CR2015-116974-001
The Honorable John Christian Rea, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Jillian Francis
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Lawrence H. Blieden
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swanndelivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge James B. Morse Jr. joined.
SWANN Judge:
¶1 Reginald McDaniel Lavenderwas convicted of forgery. He appeals the superior court's denial of his requests to proceed in propria persona ("pro per") and its issuance of ajury instruction concerning flight or concealment. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On April 14, 2015, Lavenderattempted to cash an unsigned check at a bank. The bank teller told Lavenderhe was unable to cash the check without the owner's signature. Lavender left the bank and return 10 to 15 minutes laterwith the check signed.
¶3 The teller was suspicious of how quickly Lavenderreturned with the signed check,because the stated address on the check was far away from the bank.The teller discussed the issue with his manager and they contactedK.C., the owner of the check.K.C. advised the bank that she did not issue Lavender a check,and theteller contacted the police.
¶4 Multiple officersheard theradio call concerning theincident at the bank.As Officers Neville and Sanchez entered the bank, the teller pointed to the north exit of the bank and told them that Lavender had just left.Lavender left the check and his identification in the bank.Officer Scott, who was working next door to the bank and heard the radio call, observed Lavender walking towards him.Officer Scott made contact with Lavender and held him until Officers Neville and Sanchez arrived at their location.Officer Neville asked Lavender what happened at the bank.Lavender denied being in the bankor having knowledge of a check. Officer Neville read Lavender his Miranda rights and placed him under arrest.
¶5 Lavender was charged with one count of forgery, a class 4 felony. On January 25, 2016, Lavender filed a motion to change counsel and named himself as the"substituted"attorney. Four days later, the court held a settlement conference and notified Lavender that any requests to change counsel or requests to proceed pro perwould be handled by the judge presiding over the case.
¶6 On February 1, the court addressed Lavender's motion to change counsel. After the courtgranted the motion, Lavenderadvised the court that there was"a motion for me to be pro per, and to not have counsel."He further stated he "[could] represent [himself] and be [his] own authorized representative, attorney-in-fact." The court noted that it did not have a request to proceed pro per before itand advised Lavender to discuss the issue with his new attorney.The court informed him thatif he decided that he wanted to represent himself, the presiding judge in the casewould ensure that any waiver of the right to counsel was knowing, intelligent, and voluntary.
¶7 At the next status conference on February 11, concerning a motion to release, Lavender did not request to represent himself. On February 12, Lavender filed a motion for dismissal with prejudice.In the motion, Lavender wrote, "It was then that the defendant realized that he must go Pro Per."Lavender also filed another motion to change counsel, again naming himself as the "substituted" attorney.And hefiled a letter with the court, in which he wrote: "I was denied an opportunity to represent myself as Pro-Per" at both the settlement conference and the status conference.
¶8 At a hearing on February 29, the court addressed both the outstanding motionto change counsel and the letter. The court examined the motions to "make sure that there was nothing . . . [that] needed to [be] address[ed] like a change of counsel," and determined "there's nothing of that nature."The court struck all of Lavender's motions and stated, "we're not going to have hybrid representation."As for Lavender's letter, the court determined that it "was more [of a] discussion concerning dismissing the case."
¶9 At the next three hearings, neither Lavender nor his counsel raised the issue of self-representation.In July 2016, the court held a trial management conference, at which Lavender was present.During the conference, Lavender's counsel mentioned her client's frustrations to the court, stating "He's kind of thrown out there that if it comes to it, he may have to represent himself. So I hope it doesn't come to that, but just FYI."
¶10 On thesecond day of trial, Lavender asked to speak to the courtafter the jury had been empaneledand the first witness excused.The jury left the room and the court notified Lavender that he was represented by counsel and that "you can either represent yourself or you can be represented by counsel, but you can't do both." Lavender contested the court's statement, insisting that he had the right to speak for himself "while [] being represented" by his attorney. The court found Lavender's statements disruptive and stated that he would only be able to speak if he represented himself and waived the right to counsel.Lavender repliedthat his attorney "speaks for corporation" and that "[t]his is a contract given to me without my consent." He further stated to the court, "with all due [] respect, will you please voluntarily accept my request for verbal motion of dismissal of counsel so I, as the defendant and public and private property, can be represented by his own fiduciary authorized --."
¶11 The court denied Lavender's request stating, "At this point, because we're in the middle of trial and the motion is untimely, we started the trial, the jury has been empaneled, I have to deny that motion, as well."
¶12 The state requested a flight or concealment instruction, which the court issued over Lavender's objection. The jury instructionstated:
In determining whether the State has proved the defendant guilty beyond a reasonable doubt, you may consider any evidence of the defendant's running away, hiding, or concealing evidence, together with all the other evidence in the case. You may also consider the defendant's reasons for running away, hiding, or concealing evidence. Running away, hiding, or concealing evidence after a crime has been committed does not by itself prove guilt.
¶13 The jury found Lavender guilty of forgery.Taking into consideration two historical prior convictions and mitigating factors, the court sentenced Lavender to a term of six years' imprisonment. Lavender received 288 days presentence incarceration credit as well.Lavender appeals.
DISCUSSION
I. LAVENDER'S MULTIPLE REQUESTS TO REPRESENT HIMSELF WERE AMBIGUOUS.
¶14 We review a decision denying a defendant the right to proceed pro per for abuse of discretion. State v. McLemore, 230 Ariz. 571, 575, ¶ 15 (App. 2012).Both the right to counsel and the right to self-representation are fundamental, and the latter may be exercised only after the defendant has knowingly, intelligently, and voluntarily waived the right to counsel. Faretta v. California, 422 U.S. 806, 835 (1975); State v. Rigsby, 160 Ariz. 178, 182 (1989); Ariz. R. Crim. P. ("Rule") 6.1(c). Whether a waiver is knowing, intelligent, and voluntary is a question of fact to be decided "based substantially on the trial judge's observation of the defendant's appearance and actions." State v. Dann (Dann II), 220 Ariz. 351, 358, ¶ 10 (2009). The right to counsel attaches automatically, is self-executing, and persists until waived. McLemore, 230 Ariz. at 576, ¶ 17. But the right to proceed pro per "must be unequivocally and timely invoked or the right is presumed to be voluntarily forfeited." Id. (footnotes omitted). A motion to proceed pro per is timely if made before the jury is empaneled.
State v. Binder, 170 Ariz. 519, 520 (App. 1992). The requirement that a defendant's request be unequivocal ensures that a defendant does not inadvertently waive his right to counsel or deliberately exploit "the mutual exclusivity of the rights to counsel and self-representation." State v. Henry, 189 Ariz. 542, 548 (1997) (citation omitted)."If the court were to permit self-representation on an ambiguous request, a defendant may later be able to claim that the right to counsel was improperly denied."Id.
¶15 Here, Lavender argues that the court abused its discretion by denying multiplerequests to represent himself. We disagree. Though Lavender made multiple statements to the court concerning self-representation, the statements confused self-representation and hybrid representation and therefore did not amount to unequivocal requests from which the court could conclude, as Rule 6.1(c) requires, that Lavender knowingly,intelligently, and voluntarilydecided to represent himself without counsel.
¶16 In Lavender's initial motion to change counsel, he purported to substitute himself as appointed counsel.Rather than treat the motion as a pro per request, the court identified the motion as a request to change counsel, affirmed Lavender's desire for new counsel, and granted the request without objection.Given the competing nature of the requests, the court correctly treated the request to proceed pro per as ambiguous. At the February 11, status conference, Lavender did not request to proceed pro per, and the court did not abuse its discretion by determining that there was no pending request for self-representation.
¶17 At the February 29, 2016 hearing, the court struck Lavender's motions, including the motion to change counsel in which he again substituted himself as counsel.The court also did not address the concerns in Lavender's letter, in which he wrote he was denied the right to proceed pro per.While the court had no basis to strike Lavender's motions, and should have addressed his concerns substantively, the error was harmless. The striking of the motions was the practical equivalentof denial, and the court would have acted within its discretion by denying the requests.
¶18 Lavender's only unambiguous request to represent himself came after the jury was empaneled. Though this final request was unambiguous, the courtproperly denied it because such a request is untimely.
II.THE COURT'S ISSUANCE OF THE FLIGHT OR CONCEALMENT INSTRUCTION WAS NOT ERROR.
¶19 Lavender argues that the superior court erred by instructing the jury on flight or concealment. We disagree. We review the court's decision to give requested instructions for an abuse of discretion. Dann II, 220 Ariz. at 363-64, ¶ 51.
¶20 In State v. Hunter, 136 Ariz. 45, 48 (1983), our supreme court held that when "determining whether a flight instruction is appropriate the evidence must be examined for the presence of either of two factors.First, the manner in which the accused left the scene is examined in order to determine whether it was indeed flight." "Flight" means the voluntary withdrawal of oneself to evade the course of justice by avoiding arrest, detention, or the institution or continuance of criminal proceedings. State v. Rodgers, 103 Ariz. 393, 395 (1968). Evidence that the defendant left the scene of the crime, by itself, is insufficient to support a flight instruction. State v. Clark, 126 Ariz. 428, 434 (1980). Rather, the instruction is appropriate if the manner in which the defendant left the scene "suggests consciousness of guilt." Hunter, 136 Ariz. at 48-49. Second, a flight instruction is appropriate if there is evidence to support a finding that the accused concealed or attempted to conceal himself or herself. State v. Weible, 142 Ariz. 113, 116 (1984). In the absence of evidence supporting a finding that the defendant left the scene or that he concealed or attempted to conceal himself, a flight or concealment instruction is prejudicial error. Id.
¶21 The court did not abuse its discretion by giving the flight or concealment instruction. The state presented evidence that as soon as law enforcement arrived at the bank, Lavender left the scene without the checkor his identification. When he was intercepted by officers, he denied even his presence at the scene. Because consciousness of guiltcould reasonably have been inferred from Lavender's exit from the bank without his identification and the check, and the departure could reasonably have been seen as an attempt to evade law enforcement, the flight or concealment instruction was not improper.
CONCLUSION
¶22 For the foregoing reasons, we affirm Lavender's conviction and sentence.
Miranda v. Arizona, 384 U.S. 436 (1966).