Goston v. State

Lee GOSTON v. STATE of Arkansas

CA CR 95-983                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                          Division III
              Opinion delivered September 18, 1996


1.   Constitutional law -- Confrontation Clause -- protection
     afforded accused. -- The Sixth Amendment to the United States
     Constitution and Article 2, section 10, of the Arkansas
     Constitution provide that the accused has the right to be
     present and confront the witnesses against him; this gives him
     the right to be physically present and the opportunity to
     conduct effective cross-examination.

2.   Criminal procedure -- right to be present during felony trial
     cannot be waived. -- After indictment, nothing shall be done
     in the absence of the prisoner; in felonies, it is not in the
     power of the prisoner, either by himself or his counsel, to
     waive the right to be personally present during the trial.

3.   Constitutional law -- Confrontation Clause -- judge required
     to give defendant opportunity to be in courtroom regardless of
     previous conduct -- case reversed and remanded. -- Because the
     United States and Arkansas Constitutions require the judge at
     every trial to give the defendant the opportunity to be in the
     courtroom with the witnesses and jury, regardless of his or
     her previous conduct, the appellate court reversed and
     remanded appellant's case for a new trial, noting, however,
     that a trial judge does not violate the defendant's right of
     due process when, because of the defendant's disruptive
     behavior in the courtroom, the trial judge orders the
     defendant removed.

4.   Constitutional law -- right to counsel -- State may not deny
     defendant's request to conduct own defense. -- Where appellant
     argued that it was error for the trial court to deny his
     request to proceed pro se, and because the issue might rise
     again on remand, the appellate court directed the trial judge
     to the law as stated in Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996), and Barnes v. State, 15 Ark. App. 153, 691 S.W.2d 178 (1985).


     Appeal from Pulaski Circuit Court; John B. Plegge, Judge;
reversed and remanded.
     Rice, Adams, & Pace, by: Kelly M. Pace, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen. and Senior App. Advocate, for appellee.

     Melvin Mayfield, Judge.
     Appellant Lee Goston was found guilty by a jury of the second
degree battery of a police officer and sentenced to six years in
the Arkansas Department of Correction.  Appellant was excluded from
the courtroom during the trial and denied the right to represent
himself because, in the 60 days preceding this trial, he had been
violent and disruptive in court several times.  On appeal he argues
that (1) the trial judge erred by excluding him from the courtroom
during his jury trial in violation of his constitutional right to
be present and to confront the witnesses against him, and (2) the
trial judge erred by denying him the right to conduct his trial pro
se.  We agree with appellant's first assignment of error and,
therefore, reverse and remand.
     Before the trial began, the judge informed appellant that he
was going to be excluded from the courtroom because on a previous
occasion he had to be carried into the courtroom because he refused
to walk, and he had been disruptive in court.
     Appellant objected and told the judge that when he had caused
the previous disruptions, he had been under deep emotional stress
and was having hallucinations; that he had been on "major drugs";
and that his mind was telling him that all white people are devils
and to do the things he was doing.  
     Appellant also told the judge that he did not want his
attorney to represent him, he wanted to represent himself, and at
the very least he wanted to sit in the courtroom and assist his
attorney.
     The judge again explained to appellant that he was being
excluded from the courtroom because the last time he was in court
he lay "on the table there and didn't speak," and at another time
appellant had given the judge his word that he would behave if his
shackles and handcuffs were removed, but when they were removed,
appellant had "cursed at the jury." 
     Defense counsel then told the judge that, because of
appellant's threats to "strike past counsel," he would be very
uncomfortable sitting next to appellant in court if appellant was
not shackled.  Appellant insisted that since counsel was afraid to
sit beside him without him being shackled, he wished to fire
counsel and represent himself.  Nevertheless, the judge denied
appellant's request to proceed as his own counsel and ordered
appellant excluded from the courtroom.
     Appellant first argues that a defendant has a right to be
present at every essential part of his trial.  He contends that
during the in-chambers conference the morning of his trial in the
instant case, he was not violent, threatening, or disruptive. 
Under these circumstances, he maintains, it was error to exclude
him from the courtroom during his trial.  
     The Sixth Amendment to the United States Constitution and
Article 2, section 10, of the Arkansas Constitution provide that
the accused has the right to be present and confront the witnesses
against him.  This gives him the right to be physically present and
the opportunity to conduct effective cross-examination.  Delaware
v. Fensterer, 474 U.S. 15 (1985); Winfrey v. State, 293 Ark. 342,
738 S.W.2d 391 (1987).  
     In Lewis v. U.S., 146 U.S. 370 (1892), the Court reversed a
criminal conviction due to jury selection being conducted by
listing the challenges, as opposed to the defendant seeing the 
potential jurors face to face.  The Court said:
          A leading principle that pervades the entire law of
     criminal procedure is that, after indictment found,
     nothing shall be done in the absence of the prisoner . .
     . .[I]n felonies, it is not in the power of the prisoner,
     either by himself or his counsel, to waive the right to
     be personally present during the trial.

146 U.S.  at 372.  
     In Badger v. Cardwell, 587 F.2d 968 (9th Cir. 1978), the
defendant was accused of assault to commit murder of a prison
guard, and was acting as his own attorney with stand-by counsel,
when he was expelled from the courtroom three times.  The first
time, appellant had taunted the court, held up a clenched fist, and
argued with the judge.  The appellate court found expulsion at that
time to be appropriate.  The next two times, however, appellant had
only been argumentative with the judge and the witnesses he was
questioning.  The appellate court held that it was error to exclude
appellant from the courtroom simply because he asked irrelevant,
repetitious and argumentative questions.  
     In Terry v. State, 303 Ark. 270, 796 S.W.2d 332 (1990), the
Arkansas Supreme Court said:
          In Illinois v. Allen, 397 U.S. 337, 338 (1970), the
     United States Supreme Court was faced with the issue of
     "whether an accused can claim the benefit of this
     constitutional right to remain in the courtroom while at
     the same time he engages in speech and conduct which is
     so noisy, disorderly, and disruptive that it is
     exceedingly difficult or wholly impossible to carry on
     the trial."  The Court concluded that a defendant can
     lose his right to be present at trial if, after being
     warned that he will be removed from the courtroom, he
     nevertheless conducts himself in such a manner that his
     trial cannot proceed.  The Court further held that the
     right to be present at trial could be reclaimed as soon
     as the defendant is willing to conduct himself in a
     manner that is consistent "with the decorum and respect
     inherent in the concept of courts and judicial
     proceedings."  Id. at 343.

          Appellant's right of confrontation under the sixth
     amendment to the Constitution of the United States was
     not violated.  He became disruptive, and ignored the
     court's warnings to return to his seat.  Although the
     court did not specifically warn appellant that he might
     be removed from the courtroom before he was actually
     removed, the court immediately suspended the trial and,
     along with other essential persons, went to appellant's
     cell to try to convince him to return to the courtroom
     without being opprobrious, warned appellant that the
     trial would proceed with or without him, and informed him
     that he could return at any time as long as he did so
     without contumacy.  Appellant clearly relinquished his
     right to be present at his trial because of his own
     actions.  He subsequently reclaimed the right by
     conducting himself in a manner consistent with the
     decorum that is essential in judicial proceedings.
    
303 Ark. at 272, 796 S.W.2d  at 334.  

     The State points out that in previous trials before this
judge, and before another Pulaski County judge, appellant had
promised to behave but had then caused such disruptions that forty
jurors and ten witnesses had to be paid and dismissed. 
Furthermore, appellee notes, this judge had knowledge that, in
evaluating appellant's mental condition and fitness to stand trial,
doctors at the State Hospital thought appellant had attempted to
feign mental illness.  Therefore, appellee argues, it was
reasonable for this judge to exclude appellant from the courtroom,
thereby depriving appellant of the opportunity to disrupt another
trial.
     In support of this argument the State relies upon U.S. v.
Stewart, 20 F.3d 911 (8th Cir. 1994), in which the appellant was
forced to go to trial in leg irons.  The court held that it was
permissible for a trial court to rely upon the presiding judge's
knowledge of the defendant's prior misbehavior in court as the
factual basis for restricting the defendant's constitutional right
to be present during his trial.  20 F.2d  at 915.  
     We think the United States and Arkansas Constitutions require
the judge at every trial to give the defendant the opportunity to
be in the courtroom with the witnesses and jury, regardless of his
or her previous conduct.  See  Larson v. Tansy, 911 F.2d 392 (10th
Cir. 1990).  For that reason, we reverse and remand the instant
case for a new trial.  However, we note that a trial judge does not
violate the defendant's right of due process when, because of the
defendant's disruptive behavior in the courtroom, the trial judge
orders the defendant removed.  Illinois v. Allen, supra; Terry v.
State, supra; Morris v. State, 249 Ark. 1005, 462 S.W.2d 842
(1971).
     Appellant also argues that it was error for the trial court to
deny his request to proceed pro se.  Since we are remanding this
case for a new trial the issue may arise again.  Therefore, we
direct the trial judge to the law as stated in Oliver v. State, 323
Ark. 743, 918 S.W.2d 690 (1996), and Barnes v. State, 15 Ark. App.
153, 691 S.W.2d 178 (1985).
     Reversed and remanded.  
     Robbins and Griffen, JJ., agree.