State v. Langley

719 P.2d 1155, 110 Idaho 895, 1986 Ida. LEXIS 455

• Court: Idaho Supreme Court
• Decided: May 2, 1986
• Docket: 16239
• Status: Published

Opinions

BAKES, Justice.

William Langley was convicted of rob-béry, pursuant to I.C. § 18-6501, and possession of a firearm during the commission of a crime, pursuant to I.C. § 19-2520. The district court sentenced Langley to an indeterminate life sentence on the robbery count and a consecutive 15-year indeterminate term pursuant to I.C. § 19-2520, for the use of a firearm in the commission of the robbery. Langley now argues that his conviction should be overturned. We disagree and uphold the judgment of conviction and the sentence imposed.

On September 6, 1980, a Molenaar’s Jewelry Store in Boise was robbed. After an informant tied Langley to the crime, two Molenaar’s employees picked Langley out of a photographic lineup, identifying him as the man who had held them at gunpoint, forced them to lie on the floor, handcuffed them, and threatened to “blow off” their heads. Langley, no stranger to the criminal justice system, was subsequently extradited from Utah where he was being held on an unrelated charge.

Langley insisted on representing himself, agreeing to use a public defender only as a legal advisor. Acting pro se, with the public defender’s office as legal advisor, Langley filed a number of pretrial motions. In fact, the record reflects that Langley filed over twenty pretrial motions. Most of these motions sought dismissal of the charges against Langley due to alleged defects in the extradition proceedings, disqualification of the district court judge,¹ or suppression of the prosecution witnesses’ testimony. The record also reflects that between the arraignment on February 18, 1983, and July 18,1983, when Langley ultimately stood trial, Langley appeared at least nine times in the district court to argue these various motions. A legal ad-visor from the public defender’s office was present at each of these court appearances.

Trial was originally set for May 31,1983. The minute entry from that date indicates that Langley refused to go to trial at that time, requesting a continuance. He argued that he needed the continuance in order to obtain alibi witnesses. Following argument by both Langley and a representative from the public defender’s office, the trial was continued until July 18, 1983.

The case went to trial on July 18, 1983. At trial, Langley, still insisting upon representing himself, nevertheless refused to remain in the courtroom and participate in the trial.² As a result, Langley was taken from the courtroom into a nearby room where he was able to view and participate in the trial through the use of audio-visual equipment. See I.C.R. 43.1.³ The record reflects that no legal advisor from the public defender’s office was present at this trial.⁴ A jury was picked, and the prosecution presented its case. Langley completely refused to present a defense, but instead made a motion for a continuance, which was denied. Ultimately, the jury returned a guilty verdict, and the trial court entered judgment and sentence.

Langley then appealed, asserting several errors at trial. The Court of Appeals found no merit in most of Langley’s arguments, but held that Langley did not knowingly and intelligently waive his right to counsel. Thus, the court reversed Langley’s conviction. State v. Langley, 109 Idaho 119, 705 P.2d 1074 (Ct.App.1985). Our review of the record causes us to conclude otherwise.

I

Langley, who asserted his constitutional right to represent himself at trial, now argues that his conviction should be overturned since he was not adequately informed of the dangers of self representation. We disagree and uphold the judgment of conviction and the sentence imposed.

It is basic to appellate practice that error in the trial court will not be presumed, but must be affirmatively shown by the appellant. State v. Sharp, 104 Idaho 691, 695, 662 P.2d 1135, 1139 (1983); Mahaffey v. State, 87 Idaho 233, 236, 392 P.2d 423, 424 (1964). See also Carpenter v. Double R Cattle Co., Inc., 108 Idaho 602, 604, 701 P.2d 222, 224 (1985); Gaither v. E.G. & G. Idaho, Inc., 106 Idaho 675, 676, 682 P.2d 628, 629 (1984). Langley, the appellant, has not affirmatively shown error here.

The record reflects that Langley repeatedly insisted on representing himself, agreeing to use a public defender only as a legal advisor. This relationship between Langley and the public defender, Laird Stone, was clarified during Langley’s preliminary hearing in magistrate court:

“THE COURT: Be seated. Take up at this time, State of Idaho vs. William Langley, Case Number 25C-1077. This is the time set for Preliminary Hearing. Is the State ready to proceed?

“MR. ROSENTHAL: The State’s ready, Your Honor.

“THE COURT: Is the Defendant ready to proceed?

“DEFENDANT LANGLEY: The Defense is ready, Your Honor.

“THE COURT: Okay. Call your first witness.

“MR. STONE: Judge ....

“DEFENDANT LANGLEY: Judge, I have some motions ....

“MR. STONE: .... I think before we take that up, we better take those motions up to ... at least clear up my status in the case at this point.

“THE COURT: Well, I assume, Mr. Langley, what you wanted was to have the Public Defender along in case you wanted to ask him any legal questions, but ...

“DEFENDANT LANGLEY: Yes, I want

“THE COURT: ... you wanted to represent yourself, is that right? “DEFENDANT LANGLEY: Merely as a — a legal advisor.

“THE COURT: Okay.

“DEFENDANT LANGLEY: I filed a motion to proceed in pro se, so that will clear him ....

“THE COURT: Okay.”

In accord with his wishes, Langley represented himself at the preliminary hearing, questioning all the prosecution’s witnesses and calling and questioning his own witnesses. The record reflects that the public defender participated in the hearing only in an advisory capacity.

Later, during Langley’s arraignment in district court, Langley rejected the court’s attempts to persuade him to have counsel appointed. The following exchange took place:

“THE COURT: The next case I’ll take up is the State of Idaho, plaintiff, versus William A. Langley, Case No. 11538. Mr. Bailiff?

“Mr. Langley, apparently you were represented also by the public defender in the lower court; is that correct, sir?

“DEFENDANT LANGLEY: I represented myself pro se, Your Honor. I proceeded with the guidance of assistance of the public defender as a legal advisor.

“THE COURT: Well, then, I might ask you: What is your thinking in regard to the attorney in this court?

“DEFENDANT LANGLEY: Well, I intend to proceed pro se with the assistance of legal advisors from the public defender’s office. Mr. Laird Stone has been assigned to me.

“THE COURT: You would like to continue that arrangement?

“DEFENDANT LANGLEY: Yes, sir.

“THE COURT: Well, I might advise you that I have been in this business a long time, and I have never yet found a person that has represented themselves very well pro se, and I think it’s a very foolish idea to do so.

“DEFENDANT LANGLEY: I’m a fool for a client is what you mean.

“THE COURT: I think that’s about it. Even I have an attorney and am in court over in a civil case in Payette, and I’m not representing myself.

“DEFENDANT LANGLEY: I would rather proceed pro se, Your Honor.

“THE COURT: Very well, then, I have advised you accordingly.

“DEFENDANT LANGLEY: Excuse me, Your Honor. I would like the assistance of an attorney as a legal advisor.

“THE COURT: Well, I’ll give you that right, and the public defender is there. I hope you reconsider and change your mind in that regard. And to that extent, I’ll reaffirm the public defender to represent you.

“DEFENDANT LANGLEY: No, I’ll proceed pro se.

“THE COURT: Very well.”

The record also reflects that Langley’s decision to represent himself was discussed several times during Langley’s many court appearances. The minute entry from a May 12, 1983, motion hearing reflects that at this time the district court again advised Langley to allow his legal advisor to represent him. At that time Langley again articulated his desire to continue to represent himself pro se. A later minute entry, from the May 31, 1983, hearing at which the continuance was granted, reads, “The Court comments regarding appointment of counsel for further legal proceedings. The defendant informs court that he will continue pro se with comments.”

The record also reflects that a pretrial motion hearing was held on July 7, 1983. The minutes of this hearing reflect that Langley called Laird Stone, the public defender serving as his legal advisor, as a witness. It is unclear what the substance of Stone’s testimony was or why he was called to testify. However, the minutes of this hearing do contain the following entry: “The Court affirmed the trial date of July 18, 1983 at 9:00 A.M. Response by the Defendant regarding the refusal to attend the trial. Comments by the Defendant regarding a Motion to Appoint Counsel Outside the Public Defenders Office. Response by the Court, informing the defendant that the public defenders office has not been appointed.” The minutes do not reflect just what Langley meant, at this point in time, when he motioned for the appointment of outside counsel. No such motion is contained in the record. However, it is clear that Langley, by this point, had been instructed many times and was fully aware that by electing pro se representation he had assumed full responsibility for his own defense.

In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that an individual has a right to pro se representation. This right, conditioned upon a knowing and intelligent waiver of counsel, see Faretta v. California, 422 U.S. at 835, 95 S.Ct. at 2541, arises out of the United States Constitution. Specifically, the Court stated:

“The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be 'informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’ Although not stated in the Amendment in so many words, the right to self-representation — to make one’s own defense personally — is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.

“The counsel provision supplements this design. It speaks of the ‘assistance’ of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant — not an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master; and the right to make a defense is stripped of the personal character upon which the Amendment insists.” 422 U.S. at 819-20, 92 S.Ct. at 2533-34, (footnotes omitted).

It was this right to pro se representation which Langley asserted when he insisted upon representing himself despite the district court’s repeated efforts to persuade him otherwise. We will not now allow Langley, whose record indicates a well developed relationship with the criminal justice system,⁵ to manipulate the system. As was noted by the Second Circuit, when it was presented with a case similar to this one, “Had [the judge] refused to allow [the defendant] to represent himself, there would doubtless have been a claim of error, persuasively fortified by the Supreme Court’s recent decision in Faretta v. California (citation omitted), raising to a constitutional level the right to appear pro se.” United States ex rel. Konigsberg v. Vincent, 526 F.2d 131, 134 (2d Cir.1975), cert. den. 426 U.S. 937, 96 S.Ct. 2652, 49 L.Ed.2d 388 (1976).

We remain unpersuaded that Langley’s decision to represent himself was unknowing. The record contains only the minute entries from most of Langley’s many court appearances. Thus, we are prevented from knowing the full extent of the district court’s many attempts to persuade Langley to allow counsel to represent him. However, based even upon the record before us, we are unable to find that the district court’s attempts to warn Langley of the dangers of self representation were inadequate. It must be kept in mind that Langley was not a first time offender, confronting the criminal justice system for the first time. Rather, Langley was a seasoned veteran of courtroom battles. We are cited to no controlling authority which would require the district court, faced with the circumstances of this case, to do more than it did.

We also remain untroubled by the absence of Langley’s legal advisor at the trial which commenced on July 18, 1983. It is difficult to perceive how the presence of Langley’s legal advisor could have changed the outcome of the trial. Had the legal advisor been present, Langley’s complete refusal to participate in his own trial would have left the advisor with no one to advise. It must be remembered that Langley, who insisted upon pro se representation, was the counsel of record, not the public defender’s office. This distinction was repeatedly made clear during the hearings on the many pretrial motions.

Langley has not cited us to any authority indicating that a legal advisor must be present at trial, nor has our independent research revealed such authority. Langley clearly had many opportunities to consult with his legal advisor before the trial. Not only was the legal advisor present at all motion hearings, but many of Langley’s pretrial motions were typed by the public defender’s office, indicating close contact with the legal advisor. In these respects, the district court fully co-operated with Langley’s request for advisory counsel. Langley repeatedly refused the appointment of counsel, instead asserting his Far-etta right to pro se representation. Since it appears from the record that he had ample opportunity to consult with his legal advisor (who was functioning as an advis- or, and no more), we find no error in the unexplained absence of the legal advisor, whom Langley refused to have appointed as counsel, at the trial. Accordingly, we uphold the judgment of conviction.

II

Langley also contends that the district court erred in imposing a 15-year sentence, pursuant to I.C. § 19-2520, for the use of a firearm in the commission of the robbery. We disagree. In support of his argument, Langley relies upon a Court of Appeals opinion, State v. Kaiser, 106 Idaho 501, 681 P.2d 594 (1984), which held that an additional sentence, pursuant to I.C. § 19-2520, could not be imposed to enhance an indeterminate life sentence. However, on review to this Court, the Court of Appeals decision in Kaiser was overturned. In State v. Kaiser, 108 Idaho 17, 696 P.2d 868 (1985), this Court held that the clear language of I.C. § 19-2520 expresses a legislative intent that an additional penalty be imposed when a firearm is used in the commission of a crime, even when that additional penalty enhances an indeterminate life sentence. Accordingly, we find the district court did not err in sentencing Langley to a 15-year indeterminate sentence for the use of a firearm in the commission of the robbery pursuant to I.C. § 19-2520, which is to run consecutive to the indeterminate life sentence imposed for the robbery.

III

Nor do we find merit in Langley’s other allegations of error. Our review of the record indicates no irregularities in the extradition procedure. We also remain unpersuaded that the photographic lineup, initially used to identify Langley, was improperly suggestive or that an alleged pretrial confrontation between the two Molenaar employees, who later testified at trial, and Langley deprived Langley of a fair trial. As noted earlier, error will not be presumed on appeal; it must be affirmatively shown on the record by the appellant. Langley has not done that here.

DONALDSON, C.J., and SHEPARD, J„ concur.

1 . Langley filed suit against the district court judge in federal district court alleging that the judge had exceeded the scope of his authority. After filing this suit in federal court, Langley sought to have the judge disqualify himself on the grounds of prejudice.

2 . The transcript reflects the following exchange: "THE COURT: Well, Mr. Langley, I’m going to go ahead and hold the trial, as you well know.

"DEFENDANT LANGLEY: Well, I object to it. Send me a slip, I’ll go back to jail and you send me a slip and tell me what you did with it.

‘THE COURT: Well, Mr. Langley, I’m telling you that your presence is required in here. You have elected to represent yourself.

“DEFENDANT LANGLEY: I don’t intend to sit here. I intend to represent myself if I have a fair judge. But I haven’t got a fair judge. You have hung onto this case like a dog on a bone. You have denied all my pretrial motions. The only motion you granted me was the motion to wear my own clothes to the jury trial. You denied the motion to suppress, quash, dismiss. All of them without hearing them.

"One or two you heard. The moment you heard them you denied them. There is no way in the world I can get a fair trial in front of you. No way. I have filed two civil suits against you in the federal court. Two against him. You probably got them quashed some way or another.

"Any man that has been asked to disqualify himself as many times as you have should disqualify himself. But you're going to go ahead and prosecute in this case. Evidently you’re trying to cover up for Mr. Johnson for introducing those false warrants.

"The warrants are false. So are the detectives. Now if you want to have a jury trial, go ahead and have it, but I don’t want to be here.”

3 . Rule 43.1. Use of electronic audio visual devices. — Whenever the law or these rules require that a defendant in a misdemeanor or felony case be taken before a district judge or magistrate for a first or subsequent appearance, bail hearing, arraignment and plea in a misdemeanor case, or arraignment and plea of not guilty in a felony case, this requirement can be satisfied by the defendant’s appearance before a district judge or magistrate either in person or by electronic audio visual devices in the discretion of the district judge or magistrate. Such audio visual device must operate so that both the defendant and a district judge or magistrate can see each other simultaneously and converse with each other. Such additional hearings and proceedings may be conducted by audio visual devices as consented to by the defendant. (Emphasis added.)

4 . It is not clear from the record presented on appeal why a legal advisor was not present at trial.

5 . Although Langley’s presentence report is not contained in the record, at the sentencing hearing Langley’s extensive record was discussed. The district court judge noted that Langley had been convicted of nine felonies and two misdemeanors and had been in and out of correctional institutions for forty years. Langley himself, at the sentencing hearing, blamed his arrest on his record, stating, "I found that my infamy has followed me from my younger record through the years, and I am a mark, and a target for young prosecutors and so forth.”