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Stansberry v. State (5/4/2012) ap-2356

Stansberry v. State (5/4/2012) ap-2356

                                               NOTICE
 

        The text of this opinion can be corrected before the opinion is published in the 

        Pacific Reporter.    Readers are encouraged to bring typographical or other formal 

        errors to the attention of the Clerk of the Appellate Courts: 



                              303 K Street, Anchorage, Alaska  99501
 

                                        Fax:   (907) 264-0878
 

                         E-mail:  corrections @ appellate.courts.state.ak.us
 



               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 



LEROY STANSBERRY, 				)
                                                )           Court of Appeals No. A-10398 
                                Appellant,      )          Trial Court No. 3AN-06-477 Cr 
						)
                        v. 			)
                                                )                   O   P  I  N  I  O  N 
STATE OF ALASKA,				) 



                                Appellee.                     No. 2356    -    May 4, 2012 



                Appeal     from   the  Superior    Court,   Third   Judicial   District, 

                Anchorage, Philip R. Volland, Judge. 



                Appearances:     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. 



                MANNHEIMER, Judge. 



                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 


----------------------- Page 2-----------------------

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 



                                                - 2 -                                           2356
 


----------------------- Page 3-----------------------

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. 



                                                  - 3 -                                             2356
 


----------------------- Page 4-----------------------

                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. 



        Underlying facts 



                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. 



                                                  - 4 -                                             2356
 


----------------------- Page 5-----------------------

                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 



                                                  - 5 -                                              2356
 


----------------------- Page 6-----------------------

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. 



                                                  - 6 -                                             2356
 


----------------------- Page 7-----------------------

                        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 ... 



                                                  - 7 -                                              2356
 


----------------------- Page 8-----------------------

                       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 



                                               - 8 -                                         2356
 


----------------------- Page 9-----------------------

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. 



                                                       - 9 -                                                  2356
 


----------------------- Page 10-----------------------

                         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 



                                                  -  10 -                                              2356
 


----------------------- Page 11-----------------------

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. 



                                    -  11 -                                               2356
 


----------------------- Page 12-----------------------

          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. 



                                   -  12 -                                                2356
 


----------------------- Page 13-----------------------

                 Shortly after this hearing, the superior court received morepro 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 court's jurisdiction over him - asking Judge Volland, 



"Don't you think you better get an indictment first?" 



                The next proceeding in Stansberry's case was a trial call on July 22, 2008. 



Stansberry refused to be transported to this proceeding.  The trial call was re-scheduled 



for July 29th, and this time the Judicial Services officers compelled Stansberry to attend 



- apparently, through the use of pepper spray. 



                As    the   trial  call  began,   Stansberry     again   accused    Judge    Volland     of 



impropriety.  Stansberry also referred to the fact that he had been forcibly compelled to 



come to court, and he suggested that someone might get hurt in the future: 



                        Mr. Stansberry :       [to Judge Volland] You better quit 

                planting   this   false   information   and   this   false   reason   with 



                                                  -  13 -                                            2356
 


----------------------- Page 14-----------------------

doubt [sic], Volland.  I'll tell you now, you'll get one of these 

cats hurt.   You and this lady here [apparently   referring to 

Billingslea]. 



       Ms. Billingslea :   Judge, I'm here for Mr. Stansberry's 

case. 



       Mr. Stansberry :     You're not here for me. 



       Prosecutor :    Judge, I'm here for the State ... . 



       Mr. Stansberry :    You planted your false information, 

your false evidence.      We'll see.   You're going to pay me 

$10,000 a day for the six years you've owed me in prison.  ... 

And I'll ... move this case to federal court, where it's at now, 

in front of Monica Ben[t]on in Seattle. 



        The Court:  We've got this trial here in trailing status. 

[To Ms. Billingslea] I know you started [another trial] ... 



       Ms. Billingslea :   [I] started [the] Jarnig [trial] today. 

We expect that to be done ... 



       Mr. Stansberry :     Get an indictment first. 



       Ms. Billingslea :  ... expect that to be done by Tuesday 

of next week.    ... 



        The Court:   All right, then; let's do this:  I'm going to 

take you ... 



       Mr. Stansberry :     We're going to request to move this 

case to federal court, because Philip Volland is planting false 

reasonable doubt and information, and also Sidney - Mrs. 

Billingslea, I guess it is. 



                              -  14 -                                        2356
 


----------------------- Page 15-----------------------

                          The Court:  Let's take you off the trailing trial list, and 

                 set this for a date certain to begin August 13th ... .  So let's do 

                 that. 



                         Mr. Stansberry :       We reject anything from the State. 

                 We ask - request for federal court. 



                          The Court:      I'll just toll [the speedy trial rule] from 

                 today until the date certain date of [August] 13th. 



                         Ms. Billingslea :       And then, Judge, it may serve us to 

                 have a brief trial call ... 



                          The Court:      Do you want [me to make] some time on 

                 the 12th to do that? 



                         Mr.     Stansberry :     Get    an   indictment     first,  and   get 

                 jurisdiction.   ...   And Judge, the next time you-all come over 

                 [to the jail] and threaten me -   [saying that] I got a court 

                 date, and I don't.     You just heard him, in federal court. 



                 On   August   12th   (the   day   of   the   trial   call),   Stansberry   told   the   Judicial 



Services officers that he would refuse to be transported to court unless Judge Volland 



issued an order directing the officers to transport him by all reasonable means.  Hearing 



this, Judge Volland asked Stansberry's attorney, Ms. Billingslea, whether he should issue 



such an order, or whether he should instead proceed with the trial call in Stansberry's 



absence.      Billingslea   answered   that   it   would   not   be   appropriate   to   have   Stansberry 



brought to court by violent means,   and   that she was "comfortable proceeding [that] 



afternoon without him." 



                 Stansberry   came   to   court   the   following   day,   August   13,   2008,   for   the 



beginning of his trial, but he again interrupted the proceedings with accusations that he 



was   being   held   unlawfully,   that   the   court   had   no   jurisdiction   over   him,   that   Judge 



                                                   -  15 -                                               2356
 


----------------------- Page 16-----------------------

Volland      was    guilty   of  forgery,    breach    of  trust,  slander,    witness    tampering,      and 



obstruction of justice, and that Billingslea had committed malpractice. 



                 In answer to these remarks, Judge Volland told Stansberry: 



                         The   Court:     I   want   you   to   understand   a   couple   of 

                 things ... .   Once trial begins, and [by] that [I mean] once we 

                 have our prospective jurors in the courtroom, you have to 

                 comport [yourself] with[in] the rules of court.  Which means 

                 you    speak    through     your   attorney;    you    can't   just  speak 

                 spontaneously   any        time   you   wish,   as   ...   you   have   [been 

                 doing], about any topic that you wish.  If you do that, and it's 

                 disruptive, I'll have to ask you to leave. 



                 Stansberry   refused   to   give   Judge   Volland   an   assurance   that   he   would 



comply with the rules of court.          Instead, he declared that Judge Volland was abridging 



his constitutional rights: 



                         Mr.    Stansberry :      So    are  you    telling   me   that   my 

                 constitutional rights - freedom of choice, and freedom of 

                 speech,   and   freedom   of   movement   -   [are]   being   [taken] 

                 from me here today? 



                         The Court:       What I'm telling you is [that] if you're 

                 present here ... 



                         Mr.   Stansberry :       Because   if   you   are,   you   need   to 

                 dismiss yourself. [sic] 



                         The Court:       ... if you're here for trial, you'll have to 

                 abide   by   the   rules   of   court   -   which   are   that   you   speak 

                 through your attorney, you can't speak ... 



                         Mr. Stansberry :      She's not my attorney. 



                                                   -  16 -                                              2356
 


----------------------- Page 17-----------------------

                         The Court:   You can't speak spontaneously, nor about 

                 matters that aren't relevant to the proceeding.   If you do, and 

                 [if] it becomes a distraction or a disruption, I'll have to have 

                 the judicial officers take you out of the courtroom.            Do you 

                understand that? 



                         Mr.   Stansberry :     I   understand   that   you're   trying   to 

                 violate my constitutional rights right now, and [I will] ask for 

                 a federal [in]junction for you to remove yourself from my 

                 case, [and] from my presence.         And I will file that in federal 

                 court. 



                 A few minutes later, Judge Volland addressed another issue that posed a 



threat to the orderliness of the trial.       Apparently, Stansberry had refused to sit with his 



attorney, Billingslea, during the recent pre-trial proceedings; instead, he had been sitting 



in the jury box.   Because it would be impossible for Stansberry to continue sitting there 



once the trial began, Judge Volland asked Stansberry if he would be willing to sit next 



to Billingslea during the trial.  Stansberry refused to agree to this, and he again accused 



Judge Volland of violating his constitutional rights. 



                 Given   Stansberry's   responses   to   these   inquiries,   Judge   Volland   asked 



Billingslea if she had any suggestions or preferences as to how to proceed: 



                         The Court:   Ms. Billingslea, there have certainly been 

                 times in court where I've noticed [that] when you've tried to 

                 talk to Mr. Stansberry, he has not let you get very near him. 

                 I don't know if you have any suggestions as to what we can 

                 do. 



                         Ms. Billingslea :    From the cases I read, Judge, one of 

                 the   worst   ...   ways   to   have   a   person   present   [in   court]   is 

                 shackled like Mr. Stansberry [currently] is.          And it certainly 

                would not be helpful to have him shackled like that.  The 



                                                  -  17 -                                             2356
 


----------------------- Page 18-----------------------

                 alternative would be - in the other courthouse, there's [a] 

                 courtroom   that   has   [an]   observation   room   in   it,   where   he 

                 could observe his trial if he doesn't want to sit next to me.  If 

                he doesn't want to have anything to do with me, he could sit 

                there.  [That way,] he could be physically present for his trial. 

                 I could [go] back [into the observation room] and see if he 

                wanted to ask me questions or talk to me ... .            Before cross- 

                 examination, or before I complete my cross-examination, I 

                 could consult with him.        In doing that, the jury wouldn't see 

                him in ... 



                         Mr. Stansberry :      That won't happen. 



                         Ms. Billingslea :     ... the condition he's in right now - 

                which, you know, is - I mean, he looks like a prisoner that 

                needs to be restrained.       So in some ways, that's worse than 

                not    being    here  at  all,  in  my   opinion.     He    does   have   a 

                 constitutional right to be physically present, but it would be 

                 good to advise him that if he doesn't want to wear civilian 

                 clothes   and   if   he   can't   comport   his   conduct   to   where   he 

                 doesn't need to   have his arms restrained, then it might be 

                 smarter, it might improve his chances, for him not to be here 

                 at all, or for him to be seated in a different room where he can 

                 observe the ... the trial without being in front of [the jury]. 



In response, Stansberry told Billingslea: 



                         Mr. Stansberry :     Don't touch me; don't say anything 

                to me.    Negligent.     You don't need to say anything to me. 

                You already threatened me once.             The State has threatened 

                 [me].   We're going to make sure that it stops.  But it will not 

                be me sitting in no room while the jury thinks that I'm an 

                 animal,   and   violating   my   constitutional   rights   [under]   the 

                Eighth Amendment [by] treating me cruel.  I'm not going to 

                 let you waive [my presence].   [Apparently, to the judge:] I'm 

                not going to let her waive it. 



                                                  -  18 -                                             2356
 


----------------------- Page 19-----------------------

                 Judge Volland assured Stansberry that "nobody is waiving [your] right [to 



be present] at this point."      Stansberry replied: 



                         Mr. Stansberry :  You threw me in prison for six years, 

                 slandered my name, ... .   I'm asking for damages at this point. 

                Nothing else really matters [at] this point but bringing you-all 

                 to justice.  ...  I'm talking about [the] federal suit filed against 

                both of you-all. 



                         The Court:  As I told you before, you're going to have 

                 the   right   to   [attend   the   trial]  in  civilian    clothes,   Mr. 

                 Stansberry.     And if you abide by the rules of conduct in the 

                 courtroom,   you're   going   to   be   able   to   sit   at   counsel   table 

                 without   handcuffs      or  without   shackles     -    provided    you, 

                 again, behave according to what's expected in the courtroom. 

                 If you show up on Monday like you're dressed now, and [if 

                 you] refuse to put on [the] civilian clothes that are provided 

                by your attorney, [then] you've got to understand that [the] 

                jurors are going to see you in that condition. 



                         Some      jurors  are   going   to  assume     that  that  means 

                 you're in custody.       It may be an issue that they keep in the 

                back of their mind, despite what instructions I give them.              ... 

                 [So] I encourage you - because it's better protection for 

                 your rights - that you come [to court] on Monday in the 

                 civilian clothes that will be provided to you. 



                         Mr. Stansberry :  My constitution is threatened [sic] - 

                 is that   what we're talking about?         Six years.     Yeah, right. 

                 And     you   got  jurisdiction    over   my    case.   How      did  this 

                 happen?     You got a blank endorsement.           [And] I guarantee, 

                 when I get a chance to get in federal court, I'm going to find 

                 out who signed these documents to give you jurisdiction over 

                 anything [having to do] with me, period.  You're telling me 

                 about instructions?       Who the hell has the right to give me 



                                                  -  19 -                                             2356
 


----------------------- Page 20-----------------------

                instructions when you don't even have jurisdiction to tell me 

                how ... I need to act.   I always dress myself as a gentleman in 

                this state, and I definitely don't need you telling me how to 

                be a gentleman and conduct myself. That's an insult to me - 

                just ... you and her [ i.e., Billingslea] talking that way. 



                         The Court:   I want you to understand, Mr. Stansberry, 

                that if, on Monday, we start [the trial] and you behave the 

                way you've been behaving today, I'm going to have to ask 

                the   Judicial   [Services]   officers   to   take   you   outside   of   the 

                courtroom, and we're going to proceed with the trial in your 

                absence.  There will be some arrangements made so that you 

                can understand what's happening in this courtroom, and be 

                able ... 



                        Mr.    Stansberry :     Sounds      like  you've    already   got 

                fraudulent pretenses already set, you and Mrs. Billinger [sic]. 

                Is that what it is?    Speak now! 



                         The Court:     Do you understand, Mr. Stansberry, that 

                if you don't ... 



                        Mr. Stansberry : Doyou understand?  Is this fraudulent 

                intents what you-all got planned to try to ruin ... my good 

                name? 



                Judge   Volland   then   conferred   with   Billingslea   about   the   possibility   of 



conducting the trial with Stansberry viewing the proceedings remotely, if Stansberry 



continued his obstreperous behavior when the jurors were present.  The judge suggested 



that this approach "[might] be better than [having] him being disruptive [in the jury's 



presence], and/or ... having [him] be shackled next to you."   Billingslea agreed with the 



judge's assessment, although she noted that Stansberry's behavior might improve. Judge 



                                                 - 20 -                                             2356
 


----------------------- Page 21-----------------------

Volland agreed that any final decision on these issues would have to wait until he saw 



how Stansberry comported himself when the jurors were present. 



              Judge Volland and the two attorneys then began discussing the difficulties 



of jury selection in Stansberry's case, including the need for a jury questionnaire that 



asked potential jurors whether they had experience with sexual violence.       During this 



discussion, and until the court recessed, Stansberry made repeated interjections:  he 



claimed that he had been denied the assistance of counsel, he accused the prosecutor of 



suborning perjury, he requested transfer of his case to federal court, and he accused 



Judge Volland and Billingslea of "fraudulent intent under ... UCC [] 2-312". 



              Jury selection for Stansberry's trial commenced on August 18, 2008.  On 



that day, Stansberry (acting pro se ) submitted a pleading to the court purporting to give 



a power of attorney to Anchorage attorney Rex Lamont Butler, even though there was 



no indication that Mr. Butler had agreed to represent Stansberry.  Stansberry also stated 



that he had asked Governor Sarah Palin to release him based on "misconduct, obstruction 



of justice, and malpractice". 



              Following Stansberry's remarks, Judge Volland asked Stansberry why he 



was not sitting with his attorney, Billingslea, at the counsel table.  The judge noted that 



he had instructed Stansberry to sit with his attorney during the previous hearing.  In 



response, Stansberry told the judge, "Me and you never made any deal."          Stansberry 



continued to assert that Mr. Butler was his true attorney, and he told Judge Volland that 



he was not willing to sit with Billingslea during jury selection.  Stansberry asserted that 



he was his own attorney, and that it was against his religion to have a white person 



represent him.  [Stansberry is black; Billingslea is not.] 



              Judge Volland then asked Stansberry whether he would adhere to the rules 



of courtroom decorum: 



                                           - 21 -                                      2356
 


----------------------- Page 22-----------------------

                        The Court:      Mr. Stansberry, on Thursday, we talked 

                about [your] right to be here [in court] during your trial.  We 

                talked about what you needed to do in order to be here.  One 

                of those [things] was to not speak spontaneously, and [to] sit 

                next to your attorney quietly at counsel table.  Are you telling 

                me you're unwilling to do that today? 



                        Mr. Stansberry : No. [i.e., "Yes, I'm telling you that."] 



                        The Court:      Okay. 



                        Mr. Stansberry :     We never made that [deal].        ... You 

                made oral threats [and told me] that you would like [me to 

                behave that way], and I told you [that] I would not give you 

                venue. [sic]     ... I had to file documents on it.      So you - [I 

                am] just waiting to file it. 



                Stansberry continued to assert that Billingslea was not his attorney, and that 



Butler's office would be representing him.  But after Judge Volland noted that there was 



absolutely   no   indication   Butler   intended   to   undertake   Stansberry's   case,   Stansberry 



declared that he wished to represent himself. 



                During   the   ensuing   inquiry   regarding   Stansberry's   ability   to   represent 



himself, Stansberry indicated that he would like a mistrial:  "Mistrial is ... my decision; 



and it's definitely going to be a mistrial." 



                Ultimately,   Judge   Volland   ruled   that   Stansberry   was   not   competent   to 



represent   himself.    (That   ruling   has   not   been   appealed.) The   judge   then   noted   that 



Stansberry "prefers to just speak what's on his mind" - and that, even though the judge 



thought that Stansberry had agreed to abide by the courtroom rules, "today, ... he's 



refusing to do [so]." 



                At this point, Stansberry accused Billingslea of having a conflict of interest, 



and of committing malpractice.  He then declared, "You-all can remove me from court." 



                                                - 22 -                                            2356
 


----------------------- Page 23-----------------------

After Stansberry repeated this statement, Judge Volland took Stansberry's words to be 



"a decision of Mr. Stansberry to voluntarily absent himself" from the trial proceedings. 



(This ruling likewise has not been appealed.) 



                Judge Volland then made the following findings: 



                        The Court:       Mr. Stansberry clearly indicated that he 

                didn't want to be here ... [,] given [my ruling] that he couldn't 

                represent himself, ... and that Ms. Billingslea [would] proceed 

                as his counsel.     Also ... on the basis of his conduct here this 

                morning, I had grave doubts that he would have been able to 

                be present in the courtroom, [to] sit next to Ms. Billingslea, 

                and not constantly interrupt proceedings as he has for the last 

                half-hour or so.     We obviously could not proceed with jury 

                selection with [Mr. Stansberry] ... sitting in the very chairs 

                where   we   have   to   impanel   jurors.    Accordingly,   I   [have] 

                made a decision to proceed with jury selection without Mr. 

                Stansberry being present. 



                        Anticipating      that   this  was    a  possibility,   and   not 

                wanting to compromise Mr. Stansberry's rights to see his trial 

                in progress and consult with his counsel, ... [I] found it was 

                possible ... to have both a video link and an audio link with 

                a ... holding cell downstairs, so that Mr. Stansberry can ... 

                watch his trial.     Notwithstanding the fact that he apparently 

                decided to [leave] here willingly, I still want him to have the 

                opportunity to watch his trial and consult with counsel.  So 

                we'll   make   sure   that   [the   audio   and   video]   equipment   is 

                working before we bring our prospective panel up here [to 

                begin jury selection]. 



                        If, at any point, Ms. Billingslea, you want to take a 

                break to consult with [your client], or try to consult with him, 

                you just let the Court know.          I'm prepared   to make those 

                accommodations ... . 



                                                 - 23 -                                             2356
 


----------------------- Page 24-----------------------

                 Judge   Volland   then      proceeded   with   the   first   day   of   jury   selection   in 



Stansberry's absence.  The judge and the two attorneys agreed that Stansberry retained 



"the option to come up here if he wants". 



                 Stansberry was present in court the next morning, August 19th, when Judge 



Volland began the second day of jury selection.                  Stansberry was in prison garb; he 



refused to wear civilian clothing.         Also, Stansberry still refused to sit with Billingslea. 



Instead, he occupied one of the chairs in the jury box. 



                 Stansberry again asserted that Rex Lamont Butler and/or his associate, 



Herman Walker, was going to represent him - even though Billingslea told the court 



that she had spoken to Mr. Walker the previous afternoon, and that Walker had told her 



that he did not represent Stansberry. 



                 Judge Volland again warned Stansberry that he would have to comply with 



court rules - which included sitting with Billingslea at counsel table, and refraining 



from any spontaneous outbursts. Judge Volland then told Stansberry that the matter was 



in Stansberry's hands: 



                         The   Court:     It's   your   choice.  You   [can]   determine 

                 whether     ...  you're   going    to  be   here   [in  the  courtroom] 

                 personally,   or   [whether]   you're   going   to   watch   [the   trial] 

                 from downstairs [in the holding cell].  ...  I'm going to allow 

                 you   to   participate   in   [the]   trial   and   watch   it,   one   way   or 

                 another, and consult with your attorney, one way or another. 

                 But as I said, if you're here in the courtroom, you've got to 

                 comport with the court rules. 



Judge   Volland   then   directed   the   Judicial   Services   officers   to   remove   Stansberry's 



handcuffs   -   stating, "This is Mr. Stansberry's opportunity to show me that he can 



behave in court." 



                                                   - 24 -                                              2356
 


----------------------- Page 25-----------------------

                 The   prospective   jurors   then   entered   the   courtroom,   and   jury   selection 



recommenced. 



                 Initially,   jury   selection   proceeded   uneventfully.       However,   later   in   the 



morning, one of the prospective jurors told Judge Volland that she might have trouble 



being fair and impartial because of Stansberry's behavior in the courtroom: 



                         Juror :    To be honest, as you were explaining ... the 

                 different [charges], ... I looked over at Mr. Stansberry [and] 

                 I kind of saw him smirking a little bit.  And I'm not trying to 

                 say   that   he's   guilty;   that's   not   what   I'm   saying,   by  any 

                 means.   I'm just saying [that when] you have assault charges 

                 against you, [and] they're being read [aloud in court], I don't 

                 feel like there's nothing to kind of smirk about.             ...  I don't 

                 really feel like he's taking the situation serious[ly]. 



A few seconds later, Stansberry spoke to this prospective juror directly, saying, "I'm 



blessed.   You don't have to worry about me.             I'm innocent." 



                 When the next potential juror stated that he thought he knew Stansberry 



through prior business connections, Stansberry argued with him: 



                         Mr.    Stansberry :        I  don't    think    that's   accurate 

                 information.     I never worked for an electric company in my 

                 life. I own my own private business, so I don't know ... 



                         The Court:      Mr. Stansberry, please. 



                         Mr. Stansberry :      Well, we need that on [the] record. 



                 Later in the jury selection process, Judge Volland gave each of the attorneys 



the   opportunity     to  engage     in  45  minutes     of  individual    questioning     of  the  fifteen 



prospective   jurors   called   to   the   jury   box.  The   prosecutor   went   first.    Then,   when 



Billingslea began her questioning of the prospective jurors, Stansberry interrupted her: 



                                                  - 25 -                                              2356
 


----------------------- Page 26-----------------------

        Ms. Billinglea :   Good morning, folks - or afternoon. 

As   you   might   suspect,   my   job   is   very   different   than   [the 

prosecutor's]   job,   ...   but   [like   the   prosecutor,   I   am   also] 

looking   for   a   fair   jury.  And   I'm   looking   for   people,   in 

particular, who can be fair to Mr. Stansberry, who is sitting 

over there.  And he's a citizen of the United States, and he's 

a resident of the State of Alaska. 



        Mr. Stansberry :       Been a businessman for 25 years in 

this state.  Successful businessman. 



         The Court:      Mr. Stansberry, ... 



        Ms. Billinglea :   He comes to court dressed in a prison 

outfit.    [And] he is obviously not sitting right next to me in 

the trial.   There are officers standing on either side of him, 

and I would like for ... 



        Mr. Stansberry :   (Indiscernible) I have a lawsuit.  I'm 

asking the question ... 



         The Court:  Ladies and gentlemen, we're going to take 

a    ten-minute     recess.     I'll   -    Please    wait    outside    the 

courtroom. 



        Mr. Stansberry :  [still in the jury's presence] Six years 

in   prison, without bail or a trial!         My   constitutional rights 

have been violated because of my [law]suit.              I'm asking for 

$10,000 a day, so you can make the jury decision.                   That's 

what you're basing it on.  They ruined my family's business 

of 25 years.     (Indiscernible) 



         The   Court:     Officers,   please   escort   Mr.   Stansberry 

downstairs [to the holding cell]. 



        Judicial Services Officer :        Yes, sir. 



                                  - 26 -                                               2356
 


----------------------- Page 27-----------------------

                      The Court:     Mr. Stansberry, you know the rules. 



                      Mr. Stansberry :   I don't have no rules to go by.  For 

               one [thing], you just made a false statement. You do not have 

              jurisdiction over this case, and you're not presiding over this 

               case.  This case is in federal court.  Put that on the record. 



                      The Court:    [To the in-court clerk] Madam Clerk, do 

               we need to check and make sure the audio [feed] is [turned] 

               on downstairs [in the holding cell]? 



                      In-court Clerk :   Yeah, I'll have to go [turn] the feed to 

               - because I know it's not on; I haven't turned it on. 



                      The Court:     Okay. 



               Twenty minutes later, when the prospective jurors returned to court, Judge 



Volland    explained    that  he  had  removed    Stansberry   from   the  courtroom    because 



defendants are not allowed to speak directly to the jurors unless they take the stand and 



give testimony.   The judge also explained that Stansberry would still be able to see and 



hear the trial, through audio and video transmission of the proceedings - but that, "at 



least for the next 15 minutes or so, he won't be with us." 



               (The judge referred to Stansberry being absent for "the next 15 minutes or 



so" because it was about 1:15 in the afternoon, and the court was scheduled to recess for 



the day at 1:30.) 



               Judge Volland admonished the jurors that, despite Stansberry's behavior, 



he was still presumed to be innocent.      The judge asked the jurors to raise their hands if 



they believed that the incident they had just witnessed would adversely affect their ability 



to give Stansberry a fair trial.  (Apparently, none of the jurors raised their hand.) 



                                            - 27 -                                        2356
 


----------------------- Page 28-----------------------

                Stansberry refused to be transported to court on the following day (August 



20th).   When court convened, Judge Volland asked Billingslea whether she wanted him 



to issue an order compelling Stansberry's attendance.  Billingslea did not ask the judge 



to issue such an order.  She told Judge Volland that Stansberry was not communicating 



with her, that his animosity toward her had escalated, and that he was not giving her any 



input during jury selection. 



                Judge Volland then noted, for the record, that Stansberry had a long history 



of either refusing to come to court, or coming to court and then refusing to comply with 



the rules of procedure and decorum.  The judge also noted that Stansberry "wouldn't let 



counsel get within five feet of him ... [and he] clearly never would sit near counsel or 



allow any communication with counsel" - thus making it "virtually impossible for 



counsel to communicate with him about decisions affecting the selection of jurors." 



                Nevertheless, Judge Volland declared that he wished to give Stansberry 



"at least ... one other chance": 



                        The Court:      If he wants to be here, I'll give him the 

                opportunity to show that he can comply with court rules - 

                because   he   was   able   to   do   that   at   least   once. But   in   all 

                candor,   I   can't   tolerate   and   won't   tolerate   any   continued 

                outbursts [from] him.       I'm not going to permit him to create 

                a mistrial.   I'm not going to permit him to influence jurors by 

                his outbursts to any extent.         But if he says he's willing to 

                comply with the rules, I'll give him one more chance. 



                After Judge Volland announced this ruling, the attorneys gave their opening 



statements, and then court was recessed for the day. 



                The next day (August 21st), Stansberry voluntarily came to court, but he 



still refused to give Judge Volland an assurance that he would refrain from speaking 



spontaneously.  Instead, Stansberry told the judge, "My federal agents should be present 



                                                 - 28 -                                             2356
 


----------------------- Page 29-----------------------

today, so I'm waiting on them[.]"   Judge Volland responded by warning Stansberry one 



more time: 



                        The Court: I just want it to be abundantly clear to you: 

                ...   I'm   not   going   to  let   you  create  prejudice    ...   against 

                yourself or [in your] favor in this trial ... , or [to] create a 

                mistrial. So one more outburst, [and] you'll be removed from 

                the courtroom. 



Stansberry replied, "We [will] enter our mistrial today, then[.]" 



                Later   that   day,   the   prosecutor   presented   the   testimony   of   C.R.,   one   of 



Stansberry's victims, who had been a 15-year-old high school student at the time of the 



sexual   assault.    C.R.   described   the   events   leading   up   to   the   assault,   and   then   she 



described the details   of the assault.        The prosecutor then asked C.R. to identify her 



assailant.   At that point, Stansberry engaged in the behavior that caused Judge Volland 



to remove him from the courtroom for the remainder of the State's case: 



                        Prosecutor : Now, [Ms. R.], there's a gentleman that's 

                seated to my left, and to your right, wearing a yellow shirt. 

                ... Could you take a look at him, briefly? 



                        Judicial Services Officer :       [to Stansberry] Sit down. 

                Sit down.     Settle down. 



                        Mr. Stansberry :  She's gonna identify me - see if she 

                know me. 



                        Prosecutor :    Do you recognize that gentleman? 



                        C.R.:    Yes. 



                        Prosecutor :     Okay.   Is that ... 



                                                 - 29 -                                             2356
 


----------------------- Page 30-----------------------

                         The   Court:     We're   taking   a   recess   here,   ladies   and 

                 gentlemen.      ... Officers, please remove Mr. Stansberry.  He 

                 can watch [the proceedings from] downstairs, if he wishes. 



Judge Volland then made the following findings: 



                         The Court:      I gave Mr. Stansberry clear instructions 

                 and fair warning that one [more] outburst would mean that 

                he'll be removed from the courtroom.               Given his conduct 

                here [today], [as well as] his spontaneous conduct with other 

                prospective jurors yesterday - one of whom reported to the 

                 court that she was intimidated by his direct statements to her 

                - at this point, I have no confidence that Mr. Stansberry will 

                not continue to spontaneously make comments that can have 

                 any number of effects - either generating sympathy ... for 

                him, [or] intimidating witnesses, [or] influencing jurors, or 

                 simply disrupting the trial.  Because of that, I felt compelled 

                 ... to remove Mr. Stansberry from the courtroom [and] allow 

                him to participate by watching the trial downstairs. 



                         Other [alternatives] that might [allow] me to have him 

                 ... present [here] really aren't workable.           Mr. Stansberry's 

                 disruption is primarily verbal.   I can't have him gagged here 

                 in the courtroom.   That would be far more prejudicial to him, 

                 I   think,   than   participating   [in]   the   trial   remotely   by   being 

                 downstairs   watching   the   video   and   listening   to   the   audio 

                hookup.      [And]   putting   him   in   shackles   or   [in]   additional 

                handcuffs [is not] going to prevent him from shouting out 

                things spontaneously, as he has just done. 



                         Mr. Stansberry ... clearly...understands the rules here. 

                 He's able to conform his conduct [to those rules] for awhile, 

                until he chooses not to.        ...  [H]e [has] forfeit[ed] his right to 

                be personally present at trial. 



                                                  - 30 -                                              2356
 


----------------------- Page 31-----------------------

                 The prosecutor then added that Stansberry's most recent outburst had not 



been   merely   verbal,   but   physical   as   well:    "When   I   was   asking   for   the   [witness's] 



identification, [Mr. Stansberry] stood up and started making a motion ... , [and] that's 



when [Judicial Services] told him [that] he needed to sit down[.]"  The defense attorney 



agreed   with   the   prosecutor's   characterization   of   this   incident,   and   she   asked   for   a 



mistrial: 



                         Ms. Billingslea :   An accuser in a sexual assault case is 

                 [asked]   for   the   very   first   time   ...   to   actually   look   at   the 

                 accused,      Mr.   Stansberry      -    and   when     she   does,    [Mr. 

                 Stansberry] gets to his feet in a fairly abrupt way, and ... three 

                 ... [Judicial Services] officers kind of put him down in the 

                 chair.    I think that [this incident] had a visual and emotional 

                 impact on the jury that may affect their ability to be fair and 

                 impartial.  And so, for the record, I'm going to ask this court 

                 for a mistrial[.]" 



                 In response to this request for a mistrial, Judge Volland spent a significant 



amount of time questioning each juror individually to see whether the juror could still 



render a fair and impartial verdict despite Stansberry's outburst and his removal from the 



courtroom.   Based on the jurors' answers, Judge Volland denied the defense motion for 



a mistrial. 



                 Judge Volland also addressed the question of whether Stansberry would be 



permitted back into the courtroom. 



                         The Court: I can't permit him to come back into court, 

                 [because] I can't conduct this [kind of] inquiry [of the jurors] 

                 every time that Mr. Stansberry does something or [makes] a 

                 statement.     ... At some point[,] [his misconduct becomes] 

                 cumulative and ... [a complete] distraction from the trial. 



                                                   - 31 -                                               2356
 


----------------------- Page 32-----------------------

         I realize that his absence ... creates some problems for 

both   parties.   ... But   nonetheless,   I'm   convinced   that   Mr. 

Stansberry   will   receive   a   fairer   trial   if   he's   not   physically 

present in the courtroom.   And my decision is that he not be. 



         I   can't    preclude      Mr.    Stansberry      from     making 

application   to   me   again   that   he   wants   to   come   back   and 

behave.    If he does, I'll cross that bridge [at that time]. 



         But [for now,] my decision ... is that he's not going to 

be permitted in the courtroom.   I will continue ... to make the 

remote [audio-video] equipment available to him downstairs 

[in   the   holding    cell],   so   he   can   watch   and   listen   [to   the 

proceedings], and communicate with counsel.   I'll make that 

clear to Judicial Services, so that he can choose to participate 

in that manner, any day that he wishes.  And he'll be afforded 

that opportunity each morning. 



         I'll   have   to   bring   him   back   [physically]   to   court   to 

determine whether or not he wishes to testify in this case.  If 

he wishes to testify I will, of course, allow him to be here 

personally, and to testify personally on the witness stand.                I 

also believe it will [be] incumbent on me to bring him back 

[to the courtroom] if there's a verdict returned, so [that] he's 

physically present when the verdict is returned. 



         ...   There may be other situations where counsel wants 

him here, but then we're going to have to weigh the risks that 

that creates, if there's any other outbursts.           As I said, [given 

the]    record    here,   ...  I'm   concerned     that   any    continued 

outbursts are just going to be too large of a problem in the 

trial.  And that the only way for [Mr. Stansberry] to get a fair 

trial is for him not to be here, and to participate by our remote 

arrangement.      ... 



                                  - 32 -                                                2356
 


----------------------- Page 33-----------------------

                         Whether or not he decides to stay at Cook Inlet, his 

                 [corrections] facility, or to come here [to the courthouse and 

                 observe the proceedings from the holding cell] downstairs, 

                 I'll make whatever accommodations during the trial that are 

                 necessary   to   enable   counsel   to   communicate   with   him.        I 

                 know it will be difficult [if he chooses not to be] physically 

                 here,    but  I'll  take   long   recesses    if  that's  necessary,     or 

                 [recesses] at certain junctures, so that counsel can effectively 

                 communicate with him if necessary. 



                 Having made this ruling, Judge Volland then summoned a Judicial Services 



officer    and   instructed    him    that  Stansberry     was    to  be   placed    on   the  Cook     Inlet 



transportation list every day, so that he could come to the courthouse and monitor the 



trial   from   the   holding   cell,   if   he   chose   to   do   so. Judge   Volland   also   instructed   the 



Judicial Services officer that, if Stansberry declined transportation to the courthouse and 



instead chose to stay at the Cook Inlet corrections facility, Judicial Services would be 



required to notify Judge Volland of Stansberry's choice, so that Judge Volland could put 



that on the record. 



                 On the next day of Stansberry's trial (August 25th), Stansberry chose to 



come to the courthouse, and he monitored the proceedings from the holding cell, but he 



asked to be returned to Cook Inlet before the proceedings recessed for the day.  He 



followed the same pattern the next day (August 26th) - coming to the courthouse in the 



morning,   but   asking   to   be   returned   to   Cook   Inlet   before   the   trial   recessed   for   the 



afternoon. 



                 On     August     27th,    Stansberry     again    accepted     transportation      to  the 



courthouse, but he returned to Cook Inlet on the 10:00 a.m. shuttle. 



                 On   the   next   day   of   trial   (September   3rd),   Stansberry   was   apparently 



unwilling to come to the courthouse, but Judicial Services compelled him to accept 



                                                  - 33 -                                               2356
 


----------------------- Page 34-----------------------

transportation.      When      Stansberry    arrived,   he   declined    to  watch   the   proceedings. 



Stansberry came to the courthouse the next day, but again he refused to watch the trial. 



                On the next day of trial (September 8th), Stansberry was present at the 



courthouse, and he was allowed to return to the courtroom when he indicated that he 



wished to testify in his own defense.          After Stansberry completed his testimony, Judge 



Volland decided that Stansberry could remain in the courtroom, since Stansberry had 



complied with courtroom rules and decorum during his testimony. However, Stansberry 



declined to remain in the courtroom. 



                The following day (September 9th), Stansberry accepted Judge Volland's 



offer to return to the courtroom, but he soon resumed the type of behavior that led Judge 



Volland     to   bar  him   from   the   courtroom.    Before   the   jury   entered    the   courtroom, 



Stansberry claimed that he was authorized to proceed as his own counsel, and he said 



that   he   intended   to   inform   the   jury  of   various   documents   "under   the   Freedom   of 



Information Act". 



                After Stansberry stopped speaking, Judge Volland summoned the jurors, 



and the prosecutor commenced his summation.  Within minutes, Stansberry interrupted 



the   prosecutor's   summation   -   asserting   that   the   prosecutor   was   offering   the   jury 



"fantasies"   and   "false   allegations".    Stansberry   also   declared   that   he   was   willing   to 



personally answer any questions that the jurors might have.  Stansberry's remarks led to 



the following colloquy with Judge Volland: 



                         The    Court:    Mr.    Stansberry,    you   were   polite   and 

                cooperative yesterday.       You abided by the restrictions that I 

                imposed ... .    Are you going to do that today? 



                        Mr. Stansberry :      These false allegations ... 



                         The Court:     Are you going ... 



                                                 - 34 -                                             2356
 


----------------------- Page 35-----------------------

                        Mr. Stansberry :      ...  is - is - I ... 



                         The Court: ... to do that today?       Mr. Stansberry:      Are 

                you going to comply with my request today? 



                        Mr. Stansberry :     I'm - I'm going to be removed.  If 

                the jury needs to speak to me, I will speak to the jury after 

                they    deliberate.      ...   I  can't   sit  there  and    [take]  that 

                humiliation. 



                After Stansberry was removed from the courtroom, he declined to watch 



the remainder of the day's proceedings on the audio-video feed.                  However, through a 



Judicial Services officer, Stansberry asked Judge Volland to allow him to return to the 



courtroom so that he could personally present his own summation to the jury.                      Judge 



Volland denied that request (with Billingslea's concurrence). 



                Stansberry later declined to be present when the jury returned its verdicts 



on September 11th. 



        Stansberry's arguments on appeal 



                Stansberry first argues that his behavior, while inappropriate, was not so 



disruptive as to justify Judge Volland's decision to remove him from the courtroom.  We 



disagree.    Stansberry repeatedly denied that the court had any authority over him.  He 



repeatedly   asserted   that   he   was   the   victim   of   injustice   and   fraud   on   the   part   of   the 



prosecutor,   the   defense   attorney,   and   the   trial   judge. And   he   repeatedly   told   Judge 



Volland (in so many words) that he could not sit quietly in the courtroom and abide by 



the rules of procedure and decorum - that, instead, he felt compelled to spontaneously 



express his feelings about what was happening to him. 



                                                 - 35 -                                             2356
 


----------------------- Page 36-----------------------

                 It is true that the particular incident that led to Stansberry's removal from 



the trial proceedings - his act of standing up when the prosecutor asked C.R. to identify 



him - does not seem to be an egregious violation of courtroom decorum, if considered 



in isolation.  But this incident should not be viewed in isolation.  Rather, it was but one 



instance of the obstreperous behavior that Stansberry engaged in over the years of court 



proceedings in this case. 



                 Moreover, it appears that Stansberry's misbehavior on this occasion may 



have consisted of more than simply standing up without being asked.                       The transcript 



shows that the Judicial Services officers who were on duty next to Stansberry told him 



not only to "sit down", but also to "settle down".              The prosecutor stated for the record 



that   Stansberry   "stood   up   and   started   making   a   motion".    And   the   defense   attorney 



agreed with the prosecutor's characterization of this incident, stating that Stansberry 



"[got] to his feet in a fairly abrupt way". She argued that Stansberry's behavior, coupled 



with the Judicial Services officers' reaction to it, required a mistrial. 



                 This   is   an   instance   where,   under   the   "abuse   of   discretion"   standard   of 



review, we are required to defer to the trial judge's perception of the event - in parti- 



cular, the extent and the potential prejudice of Stansberry's misbehavior. 



                 Stansberry also argues that, even if his behavior might have justified Judge 



Volland in removing him from the proceedings, the judge should nevertheless have given 



him additional warnings before ordering his removal.                Again, we disagree. 



                 Judge Volland repeatedly gave Stansberry express warnings that he would 



be   removed      from   the  courtroom      if   he  did  not   control   his   spontaneous   comments 



concerning the perceived injustice of the proceedings and the perceived bad faith of the 



other participants in the proceedings. And as we have explained, Stansberry's consistent 



response to these warnings was to deny Judge Volland's authority over him, or to declare 



that he had no choice but to voice his opinions. 



                                                  - 36 -                                              2356
 


----------------------- Page 37-----------------------

                For instance, when Stansberry   interrupted the jury selection process to 



declare to the jurors that he had been held in prison for six years without bail, that his 



constitutional rights had been violated, and that his business had been ruined, Judge 



Volland admonished Stansberry to obey the rules, and Stansberry responded that he was 



not bound by the rules: 



                        The Court:      Mr. Stansberry, you know the rules. 



                        Mr. Stansberry :       I don't have   no rules to go by.      ... 

                You do not have jurisdiction over this case, and you're not 

                presiding over this case.       This case is in federal court.  Put 

                that on the record. 



On that occasion, Stansberry missed only a few minutes of the proceedings - because 



the court was scheduled to recess for the day quite soon after that. 



                Stansberry refused to be transported to the courthouse the following day 



(when the parties delivered their opening statements), so his absence from that day of his 



trial was voluntary.  The day after that, Stansberry was again in court, but he refused to 



give Judge Volland an assurance that he would refrain from speaking spontaneously. 



Judge Volland responded by warning Stansberry once more that he would not tolerate 



any   more   outbursts   -   and   that,   if   Stansberry   insisted   on   continuing   his   disruptive 



behavior, he would again be removed from the courtroom.                    Stansberry replied, "We 



[will] enter our mistrial today, then[.]" 



                Soon after that, Stansberry abruptly stood up during C.R.'s testimony, and 



Judge Volland ordered Stansberry removed from the courtroom.                     It is true that Judge 



Volland did not give Stansberry an additional warning at that time - but as we pointed 



out early in this opinion (in the section dealing with the applicable law), there is no 



requirement that the judge's warnings immediately precede, or be contemporaneous 



                                                 - 37 -                                            2356
 


----------------------- Page 38-----------------------

with, the defendant's removal from the courtroom.               Rather, the trial judge can rely on 



previous warnings, if those warnings adequately conveyed that the defendant would be 



removed from court if the disruptive behavior continued.  Douglas II , 214 P.3d at 321. 



Here, Judge Volland's warnings to Stansberry amply satisfied this requirement. 



                Stansberry was absent for the rest of the State's case, but he returned to 



court to testify in his own behalf.       At that time, Stansberry's behavior was appropriate, 



and (because of this) Judge Volland invited Stansberry to remain in court for the rest of 



the   proceedings.     But   a   few   minutes   into   the   prosecutor's   summation   to   the   jury, 



Stansberry again   engaged in disruptive behavior.              He declared to the jurors that the 



prosecutor     was    offering   them    "fantasies"   and   "false   allegations",    and   offering   to 



personally answer any questions that the jurors might have.                As we explained earlier, 



Stansberry's remarks led to the following colloquy with Judge Volland: 



                         The    Court:    Mr.    Stansberry,    you   were   polite   and 

                cooperative yesterday.       You abided by the restrictions that I 

                imposed ... .    Are you going to do that today? 



                        Mr. Stansberry :      These false allegations ... 



                         The Court:     Are you going ... 



                        Mr. Stansberry :      ...  is - is - I ... 



                         The Court: ... to do that today?       Mr. Stansberry:      Are 

                you going to comply with my request today? 



                        Mr. Stansberry :     I'm - I'm going to be removed.  If 

                the jury needs to speak to me, I will speak to the jury after 

                they    deliberate.      ...   I  can't  sit  there   and   [take]   that 

                humiliation. 



                                                 - 38 -                                             2356
 


----------------------- Page 39-----------------------

                In   sum,   Judge    Volland    repeatedly    warned    Stansberry     concerning     the 



consequences       of  his  disruptive    behavior,   and   Stansberry    repeatedly    responded     by 



denying the judge's authority or by declaring that he could not (or would not) refrain 



from disrupting the proceedings.         No further warnings were required. 



                Finally, Stansberry argues that even if his behavior justified his removal 



from the proceedings, and even if Judge Volland adequately warned him that he would 



face   this   consequence   if   he   persisted   in  his   behavior,   Judge   Volland   nevertheless 



committed error by failing to inform Stansberry that he could regain his right to attend 



the proceedings if he amended his behavior. 



                Stansberry   concedes   that,   several   times   during   the   proceedings,   Judge 



Volland explicitly stated that if Stansberry reformed his behavior, he would be allowed 



to return to court. However, Stansberry claims that he was never present in court to hear 



these words - that Judge Volland always said these things after he ordered Stansberry's 



removal from the courtroom.   Stansberry acknowledges that his attorney was present in 



court when Judge Volland said these things, but Stansberry argues that the record shows 



that he barely communicated with his attorney, and that it is therefore unlikely that he 



himself was ever apprised of what Judge Volland said. 



                But even though Stansberry may not have been personally present in the 



courtroom when Judge Volland explained that he could regain his right to attend the 



proceedings, this does not mean that Stansberry failed to hear what Judge Volland said. 



                As we have explained, when Stansberry himself asked to be removed from 



the   courtroom   on   the   first   day   of   jury   selection,   Judge   Volland   announced   that   he 



intended to make sure that Stansberry could see and hear the entire proceedings from the 



holding cell downstairs: 



                        The Court: Anticipating [that Stansberry might not be 

                present in the courtroom], and not wanting to compromise 



                                                 - 39 -                                            2356
 


----------------------- Page 40-----------------------

                 Mr. Stansberry's rights to see his trial in progress and consult 

                 with his counsel, ... [I have arranged for] both a video link 

                 and an audio link with a ... holding cell downstairs, so that 

                 Mr. Stansberry can ... watch his trial.         Notwithstanding the 

                 fact that he apparently decided to [leave] here willingly, I still 

                 want   him   to   have   the   opportunity   to   watch   his   trial   and 

                 consult with counsel.  So we'll make sure that [the audio and 

                 video] equipment is working before we bring our prospective 

                panel up here [to begin jury selection]. 



As this quotation shows, Judge Volland did not intend to resume the proceedings until 



he was satisfied that Stansberry could see and hear everything. 



                 Several minutes later, Judge Volland and the attorneys discussed whether 



Stansberry could resume attendance of the trial proceedings: 



                         Prosecutor :   If you read [the] Douglas [decision], ... it 

                 seems that one of the major things ... the Court needs to do is 

                 make sure [that,] if he wants to reform himself and ... come 

                back to court, ... there needs to be some kind of process in 

                 which we [allow him to] do that.          My suggestion [is] that ... 

                 we just get a [Judicial Services] officer [to tell us] every day 

                 ... [whether Stansberry] won't come into court today, or he 

                 will come into court today.        ... [And] I think we should do 

                 that on the record. 



                         The Court:      I agree.    At least in the process of jury 

                 selection here, my intention was to give him an opportunity 

                 each day to tell me whether or not he wanted to be here.  And 

                 I think once we swear our jury [i.e., once jeopardy attaches] 

                - well, I'll see.  If I have a track record [at that time] of him 

                 not wanting to come back once we swear our jury, it becomes 

                 a little riskier, then, to bring him back, if it's just going to be 

                 [another]   outburst.     But   I   intend   to   ...   affirmatively   ...   see 

                 whether he wants to come back, and give him the opportunity 

                 to change his behavior and be [present] here ... . 



                                                  - 40 -                                              2356
 


----------------------- Page 41-----------------------

                  A few minutes after that, just before jury selection resumed, Judge Volland 



went on record again because the prosecutor alerted him to a problem: 



                           Prosecutor :      Judge, [Judicial Services] Officer Dunn 

                  ... informed us [apparently, the prosecutor and the defense 

                  attorney]   before   you   came   in   [to   the   courtroom]   that   Mr. 

                  Stansberry no longer wants to sit in the cell downstairs [that 

                  has] the video linkup that we just put together. 

                           .   .  . 



                           The Court:   Okay.  Officer Dunn - [well,] first of all, 

                  I take it that Mr. Stansberry was taken down to the cell that 

                  has the video and audio link? 



                           Officer Dunn:         Yes, Your Honor. 



                           The Court:       Okay.    And was it operable in his cell? 



                           Officer Dunn:         [Yes, the] audio and video were both 

                  on.   ... 



                           The Court: [And] has he now indicated that he doesn't 

                  want to be there? 



                           Officer Dunn:         That is true.   [So] we moved him over 

                  to a cell without the audio and video.             
 

                           .   .  .
 



                           The Court: Officer, you have my direction, first of all, 

                  to tell Mr. Stansberry that any time he wants to go back into 

                  the cell with the video and audio link, he can tell you that.  If 

                  he tells you that [at] any time during the day, [you should] 

                  take him back in there, and let us know, so we can make sure 

                  that the equipment is operable. 



                           Officer Dunn:         Yes, Your Honor. 



                                                      - 41 -                                                  2356
 


----------------------- Page 42-----------------------

                          Prosecutor :        And,   Judge      -    actually   the   direction 

                  should be [that] if he wants to go [back] into that [cell], or if 

                  he wants to come back up here [to the courtroom] - I mean, 

                  ... at this point, it seems [that it should] be his option, and if 

                  he wants ... 



                           The Court:       Right. 



                          Prosecutor :       ... to reform ... 



                           The Court: He can have the option to come up here [to 

                  the courtroom] if he wants ... 



                           Officer Dunn:        Yes, Your Honor. 



                           The     Court:       Okay.      All    right.      Let's    get   our 

                  [prospective] jurors and otherwise proceed. 

                           .  .  . 



                          In-Court Clerk :  Judge, do you want me to ... keep up 

                  the [audio-video] link?  ... 



                           The Court:       Yeah.   Let's keep it up for now. 



                  This record strongly suggests that, even though Stansberry may have been 



in the holding cell when the prosecutor and Judge Volland made their initial remarks 



about Stansberry's right to return to the courtroom, Stansberry was able to hear what 



they said - and, thus, he knew that he would be allowed to return to the courtroom if 



he altered his behavior. 



                  This record also strongly suggests that even if Stansberry did not hear what 



the   prosecutor   and   Judge   Volland   said   about   his   right   to   return   -   either   because 



Stansberry had not yet reached the holding cell with the audio-video link, or because 



                                                     - 42 -                                                 2356
 


----------------------- Page 43-----------------------

Stansberry had already demanded to be moved to a different holding cell - this problem 



was cured when essentially the same information was conveyed to Stansberry by the 



Judicial Services officer. 



                 Moreover, this same issue - Stansberry's right to return to the courtroom 



if he controlled his behavior - came up again on the next day of trial (i.e., the second 



day of jury selection).  When court convened that day, Stansberry was again present in 



the courtroom - apparently, because he asked to be present.                     At that time (as we have 



already   explained),   Judge   Volland   again   warned   Stansberry   that   he   would   have   to 



comply with the rules of procedure and decorum.                 Judge Volland then told Stansberry 



that the question of his continued presence in the courtroom was in Stansberry's hands: 



                         The   Court:     It's   your   choice.   You   [can]   determine 

                 whether      ...  you're   going    to  be  here   [in   the  courtroom] 

                 personally,   or   [whether]   you're   going   to   watch   [the   trial] 

                 from downstairs [in the holding cell].  ...  I'm going to allow 

                 you   to   participate   in   [the]   trial   and   watch   it,   one   way   or 

                 another, and consult with your attorney, one way or another. 

                 But as I said, if you're here in the courtroom, you've got to 

                 comport with the court rules. 



Judge   Volland   then   directed   the   Judicial   Services   officers   to   remove   Stansberry's 



handcuffs - stating, "This is Mr.   Stansberry's opportunity to show me that he can 



behave in court." 



                 In spite of all this, it remains theoretically possible that Stansberry never 



learned of his right to return to the courtroom if he amended his behavior.  The superior 



court   was   never   asked   to   make   a   finding   on   this   issue. But   given   this   record,   the 



possibility that Stansberry did not understand that he could return to court if he behaved 



himself is speculative at best.        The record gives every reason to believe that Stansberry 



did know that he could return to the courtroom if he behaved himself.                      Indeed, Judge 



                                                   - 43 -                                               2356
 


----------------------- Page 44-----------------------

Volland    repeatedly   allowed  Stansberry   to  return  to  the  courtroom  until  (on  each 



occasion) his behavior again became disruptive. 



              In sum, it is Stansberry's burden to demonstrate that he was never informed 



of this right, and he has not met that burden. 



       Conclusion 



              The judgement of the superior court is AFFIRMED. 



                                            - 44 -                                       2356
 

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