Brooke V. Berens, Assistant Public Advocate, Appeals & Statewide Defense Section, and Rachel Levitt, Public Advocate, Anchorage, for the Appellant.
Timothy W. Terrell, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and John J. Burns, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and BOLGER, Judges.
Leroy Stansberry was charged with multiple counts of first-degree sexual assault, kidnapping, and second-degree sexual abuse of a minor involving five separate victims over the course of several years. Because of Stansberry's disruptive behavior throughout the proceedings (both in pre-trial hearings and at the trial itself), Superior Court Judge Philip R. Volland finally ordered that Stansberry be removed from the courtroom. Stansberry was not present during much of his jury trial.
Judge Volland allowed Stansberry to return to the courtroom during the defense case, when Stansberry testified on his own behalf. And because Stansberry behaved himself during his testimony, Judge Volland told Stansberry that he was welcome to stay in the courtroom during the remainder of the trial. However, during the prosecutor's summation to the jury, Stansberry interrupted and asserted that the prosecutor was offering the jury " fantasies" and " false allegations" . When Judge Volland interceded and asked Stansberry if he was willing to resume proper behavior, Stansberry told the judge that he wished to leave the courtroom because " [he could not] sit there and [take] that humiliation" . Stansberry was removed from the courtroom, and he was not present for the remainder of his trial.
The three questions presented in this appeal are: (1) whether Stansberry's behavior warranted his removal from the courtroom, (2) whether Judge Volland adequately warned Stansberry that his disruptive behavior might lead to his removal from the courtroom, and (3) whether Judge Volland adequately informed Stansberry that he would be allowed to return if he ceased his disruptive behavior.
For the reasons explained in this opinion, we conclude that the answer to all of these questions is " yes", and we therefore affirm Stansberry's convictions.
The governing law
A criminal defendant has a constitutional right to personally attend the court proceedings in their case, but a defendant can forfeit that right if the defendant proves incapable of controlling their disruptive behavior even after they have been admonished and unambiguously warned that continued disruption will result in their removal from the courtroom. Douglas v. State ( Douglas I ),166 P.3d 61, 64-65 (Alaska App.2007), and Douglas v. State ( Douglas II ), 214 P.3d 312, 319-320 (Alaska 2009).
As our supreme court explained in Douglas II,
The right of a criminal defendant to be present at every stage of trial is rooted in the right to confront adverse witnesses and the right to due process of law. But ... the right to be present at trial is not absolute. In [ Illinois v. ] Allen, [397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970),] 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." [ Allen, 397 U.S. at 343, 90 S.Ct. at 1060-61]
Douglas II, 214 P.3d at 319-320 (footnotes omitted).
With regard to the type of warnings that a defendant must receive before a judge can justifiably remove a defendant from the courtroom, the warnings must " fully and fairly [inform the defendant] that his conduct is wrong and intolerable", and the warnings must also apprise the defendant that removal from the courtroom is a possible consequence of continued misbehavior. Douglas II, 214 P.3d at 321. However, the law does not require that these warnings immediately precede, or be contemporaneous with, the defendant's removal from the courtroom. Rather, the judge may rely on previous warnings, if those warnings satisfied the criteria described in the first sentence of this paragraph. Ibid.
Finally, when an appellate court reviews a judge's decision to remove a defendant from the courtroom, that decision is reviewed under the " abuse of discretion" standard. Douglas II, 214 P.3d at 319. This is because the trial judge " is in the best position to assess how disruptive a defendant's behavior is[,] and how likely it is to continue." Ibid. Under this " abuse of discretion" standard of review, an appellate court will uphold the trial judge's decision unless that decision is " arbitrary, capricious, manifestly unreasonable, or stems from an improper motive" . Ibid.
In 2003, a Palmer grand jury indicted Stansberry on four counts of first-degree sexual assault involving two victims. Three months later, the grand jury returned a supplemental indictment charging Stansberry with ten additional charges involving three additional victims. These charges included first-degree sexual assault, attempted first-degree sexual assault, second-degree sexual abuse of a minor, and kidnapping.
Stansberry initially chose to represent himself. Shortly after the grand jury issued its supplemental indictment, Stansberry filed a motion seeking dismissal of the charges. In his supporting affidavit, Stansberry accused the State of prosecuting him " under the wrong identity" . In his motion, Stansberry declared:
I am holding the State [and] the prosecutor ... responsible for brainwashing me, mental destroyment [of] my character and identity. I am holding them [responsible,] along with the Anchorage Police Dept., [the] State Troopers, and the [Division] of Motor Vehicles[,] for wrongful identification and putting my life in danger.... I have no other choice but to ask for punitive damages.
Because of the content of some of Stansberry's pleadings, as well as Stansberry's unusual conduct during the pre-trial proceedings in this case, the State asked Superior Court Judge Beverly W. Cutler to order an evaluation of Stansberry's mental competence. In support of that request, the State informed Judge Cutler of Stansberry's earlier behavior in a separate Anchorage criminal case. According to the State, Stansberry accused the Anchorage trial judge of perjury and forgery, and Stansberry repeatedly presented legal arguments to the jury, despite the trial judge's warning that he could not ask the jury to resolve issues of law.
Action on the State's request for a competency evaluation was deferred when Stansberry decided to stop representing himself and instead requested court-appointed counsel. However, over the next year and a half, even though Stansberry was represented by counsel, he submitted a variety of pro se pleadings, including repeated requests for release on his own recognizance, and a petition for writ of habeas corpus in the federal district court. The named defendants in this federal habeas petition included the Alaska Court System, Judge Cutler, the Anchorage trial judge, the prosecuting attorney, and
Stansberry's own court-appointed counsel. As we are about to explain, Stansberry repeatedly asserted that the existence of this federal litigation deprived the superior court of any jurisdiction over the criminal charges pending against him.
In January 2006, the parties agreed to have Stansberry's case transferred to Anchorage, and the case was assigned to Superior Court Judge Philip R. Volland.
At a pre-trial conference a few days later, Stansberry's court-appointed defense counsel told Judge Volland, " Mr. Stansberry refuses to see me; we've never had a conversation. It's ... a non-existent relationship." Judge Volland scheduled a hearing to look into Stansberry's competency, but Stansberry refused to be transported to that hearing. In response, Judge Volland rescheduled the hearing, and he directed Judicial Services to transport Stansberry to the rescheduled hearing " by any means, including force."
Stansberry was present for the rescheduled competency hearing on January 27th, but he repeatedly interrupted Judge Volland and the attorneys. Shortly after the hearing began, Stansberry declared:
Mrs. Farrell [the attorney selected by the Office of Public Advocacy to represent Stansberry] is not representing [me] in this case. Also, I'm [litigating] in the ... Ninth Circuit Court of Appeals.... My case number is 05-36183. [I am] suing the State of Alaska ... in a class action lawsuit— me and my family. So ... I don't need the State to talk to me. I'm also suing Dr. Sperbeck [a psychiatrist who examined Stansberry] and API [the Alaska Psychiatric Institute], and my case is in federal court right now.
In response to these remarks, Judge Volland told Stansberry that it was his choice whether to cooperate with his attorney, but that Stansberry's federal lawsuit did not relieve him of his obligation to comply with the orders issued in the state court proceedings. Stansberry then declared that the State was prosecuting him under " [an] identity [that] is not mine", and that he " [did] not want to [in]crimi[n]ate [him]self ... in the ... courtroom." Stansberry added that he was " [litigating] a federal case", and that he had " nothing else to say at this point" .
Stansberry's reference to his federal litigation led to the following colloquy with Judge Volland:
The Court: You've been charged in state court, Mr. Stansberry. And, as I said, Ms. Farrell is the attorney appointed to represent you. And I'll proceed to hear from her, [because] you've not been authorized to represent yourself.
Mr. Stansberry: I just told you: she's not representing me ...
The Court: It's not your choice, Mr. Stansberry.
Mr. Stansberry: It would also violate my constitutional rights, as well [as] unusual and cruel punishment for me[. I am] telling you on [the] record, she is not my attorney.
The Court: She is your attorney. It doesn't violate your constitutional rights ...
Mr. Stansberry: [Just] because you said she's my attorney, that makes her my attorney? Is that what you're saying? ... Well, I just told you [that] I'm suing [the] Office of Public Advocacy.... I was unprepared to come over here, pretty much at gunpoint, and without my consent, my will, or anything.
Several months later, in August 2006, Judge Volland again took up the matter of Stansberry's competency. By that time, Stansberry had a new attorney: Ms. Sidney Billingslea. At this August hearing, Stansberry again insisted that the proceedings against him were invalid, and he announced that he did not intend to participate any further:
The Court: I set this [case] on [the calendar] for ... [a] hearing ... [to] make sure [that] the parties received the [psychological] evaluation, ... [and] then to find out whether either party contests the evaluation, and [whether] I should either order a second one ...
Ms. Billingslea: Judge, I reviewed [the evaluation], and I would appreciate the opportunity to ask [the evaluator] questions
about how she came to the conclusions she did ...
The Court: All right, ... let's find a hearing date....
Mr. Stansberry: Judge, I'm asking the Court to throw this case out, due to violation of my constitutional rights. I have appealed the Ninth Circuit's decision [dismissing Stansberry's habeas corpus litigation] [to the United States] Supreme Court. [And] I'm asking the Court to release me today, and that's— that was my reason [for coming] here. I'm not going to come over [here] any more and let you— all guys insult me verbally or mentally.... This case is done. This case— If you— all have a civil action, [then] you need to file it in civil court, because now this is a constitutional issue— a violation. [The State is] falsifying ... documents and fals[ifying] evidence in this case....
The Court: I'm not going to release you, or dismiss the case, Mr. Stansberry. If you choose not to come to court in the future, that's your choice. You can voluntarily absent yourself from these proceedings.
During the ensuing months, Stansberry disregarded Judge Volland's order to communicate with the court through his attorney. Instead, Stansberry continued to file pro se motions, referring to himself as his own " Attorney in Fact" . In these motions, Stansberry alleged that his constitutional rights were being violated. He sought release on his own recognizance, as well as punitive damages and a pardon from the governor.
At a court hearing on May 21, 2007, Stansberry's attorney (Ms. Billingslea) informed Judge Volland that Stansberry was refusing to cooperate with her until his new round of federal litigation was complete. Billingslea explained that Stansberry refused to meet with her, or with her expert witnesses, or " anybody" . At this point, Stansberry interrupted his attorney and spoke directly to the judge:
Mr. Stansberry: I'm asking you not to harass me anymore, Philip— Mr. Volland. I'm talking to you.
A few minutes later, Stansberry again interrupted Billingslea, and he once more announced that he considered the proceedings against him to be invalid:
Mr. Stansberry: [I am litigating] in federal court for the simple reason that the state courts have violated civil rights of mine ..., and so I asked the federal courts to intervene for the simple fact that I have [brought] a lawsuit against [the state courts], and it's important if the federal courts do take a look at this, I'm asking the FBI to do a federal investigation. There [were] ... no reports filed on me [that] I assaulted anybody, none, from anyone of the State of Alaska.
The Court: This is what I'm inclined to do here. I haven't made any findings yet with respect to Mr. Stansberry's competency to stand trial, because I had accorded his counsel the opportunity to question Dr. Fisher.... I'll just have to continue this [hearing] again for a period of time to allow for that to happen ...
Mr. Stansberry: I reject anything that you have to say here today in court. I'm counseling my record. [ sic ] You have no power over this case. This case is in federal court. You do not have an indictment ...
The Court: Mr. Stansberry, ...
Mr. Stansberry: You do not have an indictment.
The Court: Mr. Stansberry, if you don't be quiet, I'm going to have you removed.
Mr. Stansberry: Please have me removed.
The Court: All right.
Mr. Stansberry: [as he is being removed] Strike this case from the record, please.
On August 20th, Stansberry was brought back to court for another competency hearing. During this hearing, Stansberry continued to interrupt both his attorney and Judge Volland, and he again asserted that the proceedings against him were invalid:
The Court: We're back [in court] on Mr. Stansberry's case. I looked at the log notes before we came in, and this appears
to be maybe the fourth or fifth time we've been trying to get ...
Mr. Stansberry: You don't have jurisdiction over this case, Judge. You don't have nothing ...
The Court: ... some response to ...
Mr. Stansberry: ... you don't have nothing to say in this case. When you get jurisdiction, that's when you [can] talk to me.
The Court: ... to Dr. Russell's [competency] evaluation of over a year ago, when we had a number of problems doing that ...
Ms. Billingslea: [I would like to] make one more attempt to secure [a competency] evaluation, given the age of the [last] one ..., and the age of Dr. Sperbeck's initial evaluation. The Court may or may not be aware that [the Office of Public Advocacy arranged for] a doctor [to] come up. Dr. Adler [came] up in 2005, [but the doctor] could not get access to Mr. Stansberry, and therefore [the doctor] could not make any conclusions one way or the other. I can't get funding for another expensive person to come up and not [be] seen by Mr. Stansberry. [So] ... my first request today is to have the Court ...
Mr. Stansberry: She [ i.e., Ms. Billingslea] is not representing me, so I don't know who she's talking about.
Ms. Billingslea: Well, I'm trying to represent Mr. Stansberry.
Mr. Stansberry: No, you're not representing me.
Ms. Billingslea: So ... I ... request [the Court] to have Mr. Stansberry evaluated at API one more time, or [that] an attempt [be made] to evaluate him at API one more ...
The Court: All right. Well, I feel [that I am] between a rock and a hard place here. And I've been frustrated in attempts to get an answer here. Unfortunately, Dr. Russell's evaluation [is] not much of an evaluation, because Mr. Stansberry refused to cooperate. So I lack the level of factual findings that would make me more comfortable reaching a conclusion of ...
Mr. Stansberry: Talk to Monica Benson [ sic: Monica Benton], she's out of Washington, the federal judge, the magistrate ...
The Court: ... competency.
Mr. Stansberry: ... [talk to] her.
The Court: [to Ms. Billingslea] But I think your request is a reasonable one. I'll order another evaluation of Mr. Stansberry at API.
Mr. Stansberry: Make sure you get the name spelled right.
The Court: I think I [will] just order him to be evaluated there....
Mr. Stansberry: We reject any offers from the— the state court at this ...
The Court: We probably should ...
Mr. Stansberry: We [are] in federal court ...
The Court: ... [give] them a date to produce the report. Then, if they want the doctor produced for examination, they know when either party can subpoena him.
Mr. Stansberry: You can move this [proceeding] to federal court in Seattle. Under 28 U.S.C. § 1446 ...
The Court: Anywhere between thirty and sixty [days] ...
Ms. Billingslea: Right. Which is why I think it's pretty important to have it done at API, as opposed to at the jail ...
Mr. Stansberry: You ain't got jurisdiction to do anything, Volland.
Shortly after this hearing, the superior court received more pro se pleadings from Stansberry. In these pleadings, Stansberry requested dismissal of the criminal charges and millions of dollars in civil damages. Stansberry also asserted that Judge Volland was guilty of a " breach of trust", that his attorney, Billingslea, had committed malpractice, and that both Judge Volland and Billingslea had unlawfully threatened him.
The court held a renewed competency hearing on October 12, 2007. At that hearing, Stansberry continued to assert that the court had no jurisdiction over him, and that Billingslea was not his attorney. Stansberry
also announced that he intended to sue Billingslea for damages.
Ultimately, Stansberry was found competent to stand trial, and Judge Volland scheduled a pre-trial conference for March 11, 2008. Stansberry refused to be transported from the jail to the courthouse for this proceeding. Judge Volland rescheduled the conference for May 6, 2008, and he directed Judicial Services to bring Stansberry to that hearing whether Stansberry agreed or not. At the May 6th conference, Stansberry again challenged the ...