Ty S. DOUGLAS, Petitioner,
STATE of Alaska, Respondent.
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.
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 Douglas's 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 Douglas's conviction.
II. FACTS AND PROCEEDINGS
Ty Douglas was charged with sexually assaulting and beating his girlfriend, K.I. 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,  ten counts of first-degree unlawful contact, and ten counts of attempted first-degree unlawful contact.
The assault case went to trial first. Superior Court Judge Larry R. Weeks presided. Douglas was apparently present in the courtroom during the trial. 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. Judge Weeks ordered Douglas physically restrained at all further hearings in the assault case. The assault convictions were ultimately affirmed on appeal.
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, Douglas's behavior was gravely disruptive and disrespectful. The court of appeals' published opinion accurately describes Douglas's misbehavior in great detail. 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, Douglas's 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 Douglas's 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.
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, 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 can't get a fair trial if he's 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 court's " 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. Douglas's attorney objected to the exclusion. Judge Thompson said that the court would take " frequent breaks" to give Douglas's 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 Douglas's 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. It's 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: 
[I]t was an illegal sentencing and an illegal conviction because false evidence was given to the jury, false evidence by [the district attorney]. There's 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.
I'm going to win my appeals. There's no way, there's no proof of penetration here and that's 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.
Douglas's three-day jury trial began August 31, 2004. Per Judge Thompson's 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 " wouldn't or couldn't let anybody else get a word in edgewise." Judge Thompson stated that " we just can't get anything done with him in here," and that he could not " subject the jury" to Douglas's 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 Douglas's 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 Douglas's " 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 Douglas's microphone to be cut off and stated:
The point is he wants to testify but he can't confine himself either to relevant matter, he won't answer questions, I mean, because I've tried to ask him questions during hearings. He will not pay any attention to the question I ask, he won't 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], ...